1. Impugned in this petition, preferred under Section 561-A of the Code of Criminal Procedure (Cr.P.C.), is the order dated 25th November 2006,
passed by the court of the learned Municipal Magistrate, Jammu, (for brevity the “Trial Magistrateâ€), directing that the process be issued against
the petitioner and the respondent no.2 for the commission of an offence punishable under Section 498-A of the Ranbir Penal Code (RPC).Quashment
of the complaint titled Shivani Mehta v. Dr Jitender Mehta and others is as well implored for by the petitioners.Â
2. The case set up by the petitioner is that he is a doctor by profession and holding the post of the Registrar in the Government Medical College,
Jammu. He married the respondent no.1 on 29th October 2001 at Jammu, but she never agreed to reside with the parents of the petitioner at
Srinagar as he is a resident of Saidpora, Shopian, Kashmir. In order to keep the respondent no.1 happy and to make the petitioner’s life
comfortable, the father of the petitioner purchased a piece of land at Udeywala Bohri, Jammu, and constructed a house for the petitioner with a view
that the petitioner and the respondent no.1 should live happily in the said house, whereas all the family members of the petitioner including the parents,
sisters and brother are residing at Saidpora, Shopian, Kashmir, so is stated by the petitioner in the instant petition. The petitioner also postulates that
even on account of the turmoil in the Kashmir Valley, the parents of the petitioner did not migrate to Jammu so that the respondent no.1 may not feel
that she has to live in a joint family. The petitioner claims that the behaviour of the respondent no.1 towards the petitioner was never cordial and on
account of the indifferent attitude on her part, she used to pick up quarrels with the petitioner without any rhyme and reason. A son, namely, Madhav,
was born out of the wedlock on 11th August 2002, however, thereafter the respondent no.1 left the matrimonial fold on her own accord to take refuge
in her parental house without any consent and knowledge of the petitioner, leaving the small child, Madhav, with the parents of the petitioner at
Kashmir. The petitioner, finding it difficult to keep the child without mother, took the child to the respondent no.1, but she refused to accept the child
and enunciated that she would take the child through court or police, so that the maximum harassment is caused to the petitioner and his parents.
Ultimately under the forced circumstances, the petitioner took the child back to Kashmir where his family and the parents are residing permanently
and he left the child in their custody. As a counter to this and with an ulterior motive to harass the petitioner and his family members, the respondent
no.1 and her family in the month of September 2003 filed a complaint under Section 498-A and 403 RPC in the court of the learned Chief Judicial
Magistrate, Jammu, who, however, after taking into account the vituperations contained in the complaint thought it appropriate not to take cognizance
and as a sequel thereto, sent it to the Women Police Station Canal Road, Jammu, for the investigation. FIR no.11/2003, against the petitioner, his two
sisters and his mother, who permanently reside and work in Kashmir, alleging therein that they have committed an offence punishable under Section
498-A RPC at Subhash Nagar, Jammu, was registered.Â
3. It is also contended that prior to the lodgement of the aforesaid FIR, a petition under the Guardian and Wards Act was filed by the respondent no.1
in the court of the learned Additional District Judge (Matrimonial Cases) Jammu, which the petitioner contested. The petitioner and his entire family
were subjected to harassment at the hands of the police station Women Cell Jammu and ultimately the petitioner and his family were bailed out by the
learned Additional District Judge, Jammu, on 31st October 2003.Â
From 12th September 2003 to 31st October 2003, the petitioner and his family were appearing before the Investigating Officer regularly, all the way
from Kashmir, where the petitioner was subjected to immense harassment and humiliation at the instance of the respondent no.1. The investigation
was being conducted by a Selection Grade Constable in the Women Police Station. Sensing that the investigation was not being conducted fairly and
properly and he, his sisters and mother were going to be wrongly challaned in a false case, the petitioner approached the Director General of Police,
with a request to conduct the investigation afresh in a just and fair manner, on merits, so that the truth might come out because the investigation was
being conducted under the influence of the respondent no.1 and her father, who was an influential and well to do person of the town, being an
Executive Engineer. Subsequent to this, the Director General of Police asked the Senior Superintendent of Police, Jammu, to look into the matter
under law, who by finding that the investigation was not conducted properly, directed to get the investigation conducted by an officer of a gazetted
rank and thus directed SDPO City West to conduct the investigation afresh. The SDPO City West summoned the respondent no.1 and her witnesses,
who initially avoided to appear and testify in the false case, subsequent to which the SDPO summoned the complainant in the FIR and three of the
seven witnesses in the police case, who appeared before the SDPO. The SDPO came to the conclusion that a false and frivolous case was registered
against the petitioner. The SDPO, investigating the FIR, submitted the closure report with the recommendation that the proceedings under Section 182
RPC be initiated against the complainant in the FIR, i.e. the respondent no.1. The respondent no.1, without waiting for the result of the previous
complaint, filed a fresh complaint on 6th July 2005 in the court of the learned Chief Judicial Magistrate, Jammu, on the basis of the same facts as were
made use of in the previous complaint under Section 498-A, 403 and 406 RPC, against the petitioner, the proforma respondent and the sisters, who are
residing and working at Srinagar permanently. The learned Trial Magistrate, to whom the second complaint was transferred by the learned Chief
Judicial Magistrate, Jammu, for disposal, deemed it proper to stay its proceedings and to wait for the ongoing investigation of the police and further
directed the Special Prosecuting Officer of the Court to seek the report from the police with regard to the investigation conducted in the earlier
complaint. The learned Magistrate declined to pass orders on the second complaint, either to take cognizance or to dismiss the complaint, but from
6th May 2005 till 30th June 2006, the ongoing investigation in the earlier complaint was monitored by the learned Trial Magistrate regularly from time
to time. The closure report, according to the petitioner, was submitted by the police on 30th June 2006 and the learned Trial Magistrate did not
coincide fully with the police report/ investigating agency and took cognizance against the petitioner and the proforma respondent under Section 498-A
RPC, vide order dated 25th November 2006. It is maintained by the petitioner that since 25th November 2006, i.e. the date of taking cognizance
against the petitioner and his mother, the proforma respondent, no summons were served upon the petitioner even though the petitioner was always
available in the Government Medical College, Jammu, and it is only when the respondent no.1 came to know about the sponsorship of the petitioner for
undergoing the Post Graduate Course at All India Institute of Medical Sciences at New Delhi vide Government Order dated 7th March 2008, she got
the summons in the second complaint served upon the petitioner on 12th March 2008, with a sole motive to harass and sabotage the petitioner after
earlier ruining his life. The learned Trial Magistrate, while not coinciding with the investigating officer, took the cognizance itself without any cogent
reason.Â
4. It is further contended by the petitioner that the learned Trial Magistrate has passed the order, taking cognizance at his back as the petitioner was
not summoned to support the report filed by the investigating officer in the FIR, who is the officer of the gazetted rank but chose to rely on the brief
and concocted story made out during the investigation by a Head Constable. This order of taking cognizance, according to the petitioner, is violative of
the principles of natural justice. It is asserted that the first complaint was launched after about one year of separation of the petitioner and the
respondent no.1, when she on her own accord left the matrimonial fold. It is further contended that it was only when the respondent no.1 filed a
petition under the Guardian and Wards Act, almost after one year of the separation from the petitioner, to get the custody of the child and to mount the
pressure on and harass the petitioner and his family, residing in Kashmir, at the hands of police and to abuse the process of law with the first complaint
and FIR, and then with the second complaint against the mother and the sisters of the petitioner who never visited or lived in Jammu.Â
5. The petitioner claims that according to the respondent no.1, the alleged offence was committed by the petitioner on 6th November 2002 (bhai dhooj
of 2002) whereas the learned Trial Court has taken the cognizance on 25th November 2006, i.e. four years of the last alleged offence, without taking
the note of the fact that cognizance, at this belated stage, goes against the roots of the Section 538-B of the Code of Criminal Procedure. It is also
contended that the offence is alleged to have been committed on 6th November 2002, FIR lodged on 14th September 2003 and the second complaint
filed on 6th July 2005 and the cognizance has been taken on 25th November 2006, which clearly shows that the cognizance has been taken beyond the
provisions of the limitation as envisaged under Section 538-B Cr.P.C. When the investigating agency thoroughly investigated the case and concluded
that there was no demand of the dowry as the marriage was a simple affair and thus roping of all family members by the learned Trial Magistrate is
unwarranted under law.Â
6. I have heard the learned counsel for the parties and considered the matter.Â
7. Learned counsel for the petitioner, to buttress the case projected by the petitioner, has fervidly argued that the respondent no.1 had preferred the
second complaint, the learned Trial Magistrate has issued the process while taking cognizance on 25th November 2006, without recording the
preliminary statement of the complainant and her witnesses as required under Section 200 Cr.P.C. The order of taking cognizance by the learned Trial
Magistrate is violative of mandatory provisions contained in Section 200 Cr.P.C. His next submission is that learned Trial Magistrate has failed to
consider the provisions of Section 538-B Cr.P.C. as the last alleged offence, as alleged by the respondent no.1, was committed by the petitioner on 6th
November 2002, and the cognizance has been taken on 25th November 2006, much after the period of limitation as prescribed under law as the
cognizance taken is beyond the period of limitation. The subsequent submission of the learned counsel for the petitioner is that the proceedings initiated
in the complaint vide order of cognizance dated 25th November 2006, are violative of Article 20(2) of the Constitution of India as the petitioner is
being subjected second time to all those bad processes for the alleged commission of the same offence as in the first and subsequent FIR. The
petitioner was subjected to harassment and humiliation at the hands of police along with all the family members. No offence under Section 498A RPC,
according to the petitioner’s counsel, is made out as such the cognizance taken by the learned Trial Magistrate is on assumption and surmises and
the continuation of the proceedings in the complaint are only an abuse of the process of the court, as such, the same cannot be allowed to be
continued, so as to prevent the abuse of process of law and to secure the ends of justice. In the previous complaint, the investigation was conducted
by an officer of the rank of SDPO who after thorough investigation has drawn the conclusion that the complaint has been filed with ulterior motive
and also recommended initiation of proceedings under Section 182 RPC against the respondent no.1/complainant. While drawing the conclusion, the
SDPO formulated as many as 14 points. The learned Trial Magistrate failed to take note of the final report submitted by the investigating agency and
in the second complaint itself took the cognizance when it was incumbent upon the learned Trial Magistrate to find out whether any new material has
been produced by the respondent no.1/complainant in the second complaint and even did not record the preliminary statement of the complainant or
her witnesses that too at the back of the petitioner when he should have been called upon to justify the final report submitted by the police and
afforded an opportunity of being heard. No fresh complaint on the same cause of action could have been made. Taking cognizance on the second
complaint is only an abuse of the process of the court and law. It is admitted case that the respondent no.1 left the matrimonial fold in November 2002
and first complaint was preferred on 14th of September 2003, after about one year, which speaks volumes that the complaint is an afterthought, lodged
with oblique motive to cause harassment and humiliation to the petitioner and when the first complaint was dismissed by the police agency, the second
complaint was preferred on the same facts and same cause of action. In support of his submissions, the learned counsel for the petitioner has placed
reliance on Sanapareddy Maheedhar and another v. State of Andhra Pradesh and another 2008 AIR (SC) 787; Harkesh and others v. State of U.P.
and another 2002 Cr. L.J. 285; Rajkumar v. State of M.P. 2008 (3) Crimes 460; Anju Bala and others v. State of Punjab and another 2006 (3) Cr.CC
548; Gajendra Kumar Agarwal v. State of U.P. & anr. 1995(1) CCR 309.
8. The learned counsel for the respondent no.1, to counter what the learned counsel for the petitioner averred, has vehemently stated that the
impugned order need not be interfered with inasmuch as the Magistrate is not bound to accept the opinion of the police; even the Magistrate may
prefer to ignore the conclusion of the police and take cognizance of the offence. He also avers that a Magistrate is entitled to take cognizance of an
offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate
can take into account the statement of the witnesses examined by the police during the investigation and take cognizance of the offence complained of
and order the issue of the process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the
investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusions arrived
at by the investigation officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he
thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a
situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1) (a) though it is
open to him to act under Section 200 or Section 202 also. The learned counsel for the respondent no.1, in support of his submissions, has relied upon
the decisions rendered in the cases of M/s India Carat Pvt. Ltd v. State of Karnataka and another AIR 1989 SC 885; and Nupur Talwar v. C.B.I. &
anr 2012 (2) SCC 188.
9. Scrutinization of the record divulges that a complaint was filed by the respondent no.1, namely, Shivani Mehta, before the police station Women Cell
District Jammu, against the petitioner. FIR no.11/2003, on the said complaint, was lodged for the commission of the offence punishable under Section
498-A RPC. The case was entrusted to Investigating Officer, Shri Bansi Lal, Head Constable, for investigation. The Investigating Officer found that
the offence under section 498-A RPC was made out against the husband, the petitioner herein. Prior to the presentation of the Challan, the
petitioner approached the Senior Superintendent of Police, Jammu, for reinvestigation of the case. The matter was reinvestigated by SDPO Bakshi
Nagar, who concluded that no case was made out against the petitioner. The Final Report was filed before the learned Trial Magistrate. However, the
learned Trial Magistrate, acting on the complaint lodged by the respondent no.1, took the cognizance in the matter by the impugned order dated 25th
November 2006.Â
10. Before giving ear to the core issue, viz. whether under the given circumstances the petitioner is entitled to approach this Court for getting the
entire criminal proceedings, percolated from the second complaint lodged by the respondent no.1 against him, quashed, it would be appropriate to
notice the circumstances and the parameters enunciated and reiterated by this Court and the Supreme Court in a series of decisions under which the
High Court can exercise its inherent powers under Section 561-A Cr.P.C, which is pari materia to Section 482 Central Code of Criminal Procedure, to
prevent the abuse of process of any Court or otherwise to secure the ends of justice. The power possessed by the High Court under the said provision
is undoubtedly very wide but it has to be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of
which alone the courts exist. It is trite to state that the said powers have to be exercised sparingly and with circumspection only where the court is
convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of the process of the court or that the ends
of justice require that the proceedings ought to be quashed. [Vide: Kurukshetra University & anr. v. State of Haryana & anr.; Janata Dal v. H.S.
Chowdhary & ors.; and State of Haryana & ors. v. Bhajan Lal & ors.] In Bhajan Lal's case (supra), while formulating as many as seven categories
of cases by way of illustration, wherein the extraordinary power under the aforestated provisions could be exercised by the High Court to prevent the
abuse of the process of the court, it was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an
exhaustive list of the circumstances in which such power could be exercised. This view has been reiterated in a catena of subsequent decisions. I am
of the opinion that having regard to the factual scenario, noted above, and for the reasons stated hereafter, it is a fit case where this Court should can
exercise its powers under Section 561-A Cr.P.C.Â
11. The Code of Criminal Procedure (Cr.P.C.) is the main legislation on the procedure for the administration of the substantive criminal law in India.
Qua the J&K State, the Code of Criminal Procedure was sanctioned by His Highness the Maharaja Bahadur vide Notification no.43-L/ 1989 dated
4th January 1933/26th Poh, 1989 and published in Government Gazette on 17th Kartik, 1990. It provides the machinery for the investigation of
crime, apprehension of suspected criminals, collection of evidence, determination of guilt or innocence of the accused person and the determination of
the punishment of the guilty. It also deals with public nuisance, prevention of offences and maintenance of wife, child and parents. The Code of
Criminal Procedure contains 565 Sections.
12. Section 190 of the Code of Criminal Procedure stipulates:
“190. Cognizance of offences by Magistrates.
(1) Except as hereinafter provided, any Chief Judicial Magistrate and any other Magistrate specially empowered in this behalf, may take cognizance
of any offence- (a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) the High Court may empower any Judicial Magistrate to take cognizance under sub-section (1), clause (a) or clause (b), of offences for which he
may try to commit for trial.
(3) The High Court may empower any Judicial Magistrate of the first or second class to take cognizance under sub-section 91), clause (c), of
offences for which he may try to commit for trial.â€
13. Section 190 of the Code of Criminal Procedures, inter alia, envisages that any Chief Judicial Magistrate and any other Judicial Magistrate specially
empowered in this behalf may take cognizance of any offence: upon receiving a complaint of facts which constitute such offence; upon a report in
writing of such facts made by any police officer; upon information received from any person other than a police officer, or upon his own knowledge or
suspicion, that such offence has been committed. There are four methods of taking cognizance of offences by the Courts competent to try the same.
The court called upon to take cognizance of the offence must apply its mind to the facts placed before it either upon a police report or upon a
complaint or in some other manner the court came to know about it and in the case of Court of Session upon commitment of the case by the
Magistrate. [See: A.R. Antulay v. R.S. Nayak (1984) 2 SCC 500].
14. When a Magistrate receives a complaint, which may be either oral or in writing as defined under Clause (e) of Section 4 of the Code, he has two
courses open before him. He may take cognizance under Section 190(l)(a) by applying his mind to the facts of the case and thereafter proceed in the
manner provided in Sections 200 and 202 Cr.P.C. By virtue of Section 200 he is required to examine the complainant and the witnesses present, if
any. If the Magistrate finds that there is sufficient ground for proceeding, he may issue process under Section 204. But if the Magistrate does not
feel satisfied, he may either dismiss the complaint under Section 203 Cr.P.C. or postpone the issue of process and take recourse to Section 202, which
provides that he may inquire into the case himself or may direct an investigation to be made by a police officer or such other person as he thinks fit,
for the purpose of deciding whether or not there are sufficient grounds to proceed. If he finds the grounds to be sufficient he may issue the process or
otherwise he may dismiss the complaint under Section 203 Cr.P.C. after briefly recording his reasons for so doing.
15. The other course open to the Magistrate is that instead of taking the cognizance, he may send the complaint for the police investigation under
Section 156(3), Cr. P.C. If this course is adopted, the police will have to investigate the matter as per the procedure laid down in Section 157
onwards. If upon the investigation, it appears to the Officer incharge of the police station that there is no sufficient evidence or any reasonable ground
of the suspicion to justify the forwarding of the accused to a Magistrate, he may submit a report to the Magistrate for dropping the proceedings. Such
a report is commonly known as ‘Final Report’.Â
16. What Section 170 Cr.P.C. lays down is advantageous to be reproduced infra:
“170. Cases to be sent to Magistrate, when evidence is sufficient. â€
(1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable
ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police
report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him
for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.
(2) When the officer in charge of a police station forward an accused person to a Magistrate or takes security for his appearance before such
Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall
require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the facts and circumstances of the cage
as he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may
be) in the matter of the charge against the accused.
(3) If the Court of Chief Judicial Magistrate is mentioned in the bond, such Court shall be held to include any Court to which such Magistrate may
refer the case for inquiry or trial, provided reasonable notice of such reference is given to such complainant or persons.
(4) The day fixed under this section shall be the day whereon the accused person is to appear, if security for his appearance has been taken, or the
day on which he may be expected to arrive at the Court of the Magistrate, if he is to be forwarded in custody.
(5) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the
Magistrate the original with his report.â€
17. Section 170, on its cursory look, envisions that if, upon an investigation, it appears to the officer in-charge of the police station that there is
sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused, such officer shall forward the accused under custody to
a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or if the offence is
bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his
attendance from day to day before such Magistrate until otherwise directed. The report of completion of investigation shall be forwarded to the
Magistrate in the prescribed form as provided under Section 173(2) Cr.P.C. Upon receiving the final report, the following four courses are open to the
Magistrate and he may adopt any one of them as the facts and circumstances of the case may require:Â
(I) He may agree with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an
opportunity of hearing to the complainant; or
(II) He may take cognizance under Section 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the
investigating agency where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or (III) He
may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or
(IV) He may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or
protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr. P.C. and thereafter decide whether complaint
should be dismissed or process should be issued.Â
This position of law is well settled by the various pronouncements of the Supreme Court, such as (1) Abhinandan Jha v. Dinesh Misra AIR 1968 SC
117 (2) H.S. Bains v. State AIR 1980 SC 1883 (3) Tularam v. Kishore Singh AIR 1977 SC 2401 and (4) M/s India Carat Pvt. Ltd. v. State of
Karnataka AIR 1989 SC 885 (890).
18. In Abhinandan Jha’s case (supra) the question arose whether a Magistrate to whom report under Section 173(2) had been submitted to the
effect that no case had been made out against the accused, could direct the police to file a charge sheet, on his disagreeing with the report submitted
by the police. The Supreme Court held that the Magistrate had no jurisdiction to direct the police to submit a charge sheet but it was open to the
Magistrate to agree or disagree with the police report. If he agreed with the report that there was no case made out for issuing process to the
accused, he might accept the report and close the proceedings. But if he comes to the conclusion that further investigation is necessary, he may make
an order to that effect under Section 156(3) and if ultimately the Magistrate is of the opinion that the facts set out in the police report, constitute an
offence. He can take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report. However, in the said
decision a typing error occurred inasmuch as the reference to Section 190(1)(c) was a mistake for Section 190(1)(b) which was later on pointed out in
H.S. Bains’ case (supra).
19. In the case of M/s India Carat Pvt. Ltd. (supra) it was held by the Supreme Court in paragraph 16 of the report “The position is, therefore, now
well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b)
of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the
statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of
process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives
an opinion that the investigation has made out a case against the accused, the Magistrate can ignore the conclusions arrived at by the investigation
officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his
powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure
laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section
200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not
entitled to direct the registration of a case against the second respondent and order the issue of summons to him.â€
20. Similarly in the case of Tula Ram v. Kishore Singh AIR 1977 SC 2401, it was held by the Supreme Court that if the police, after making an
investigation, send a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take
cognizance of the case under Section 190(1)(b) and issue process or in the alternative he could take cognizance of the original complaint and examine
the complainant and his witnesses and thereafter issue process to the accused, if he was of opinion that the case should be proceeded with.
21. In a decision rendered in Suresh Chand Jain v. State of Madhya Pradesh and anr., AIR 2001 SC 571, the Supreme Court has pointed out that the
investigation envisaged in Section 202 is different from the investigation contemplated under Section 156(3) of the Code as the former is ordered after
taking cognizance of the offence whereas the later at a pre-cognizance stage. The investigation referred to in Section 202(1) of the Code is of a
limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only
for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further. This is because he has already taken
cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.
22. The observations, made in the case of M/s India Carat Pvt. Ltd., (supra), leave no room for doubt that the Magistrate is not bound with the
conclusions arrived at by the investigating agency and it is open for him to apply his mind independently to the facts emerging from the investigation
and take cognizance of the case if he deems fit, in exercise of his powers under Section 190(1)(b). The Magistrate in such a situation is not bound to
follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance under Section 190(1)(a), though alternatively it is open to
him to act under Section 200 or Section 202 also.
23. The position is, thus, clear that when a Magistrate receives police report under Section 173(2), he is entitled to take cognizance of an offence even
if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses
examined by the police during the investigation and other material collected during investigation and form his own opinion independently without being
bound by the conclusions arrived at by the investigating agency and take cognizance under Section 190(1)(b) of the Code and direct the issue of
process to the accused. However, the Magistrate cannot make use of any material or evidence other than the investigation records while acting under
Section 190(1)(b) of the Code. If he chooses to make use of any materials other than the investigation records, he will have to follow the procedure
laid down in relation to complaint cases, on the basis of original complaint or application moved under Section 156(3) Cr.P.C. which otherwise
tantamount to complaint or the Protest petition filed against acceptance of final report treating the same as complaint. This proposition would be in
consonance with the provision of Section 207 which inter-alia provides for supply of copy of statements recorded under Sub-section (3) of Section 161
of all persons whom the prosecution proposes to examine as its witnesses and any other document or relevant extract thereof forwarded to the
Magistrate with the police report under Sub-section (5) of Section 173.
24. In the present case the learned Trial Magistrate while taking cognizance by the order dated 25th November 2006, has said:
“6. On considering the final police report and as to what is alleged in the complaint lodged before this Court, I do not agree with the conclusion
drawn by the investigating officer, rather the conclusion drawn by him is ill founded and without any basis. There was enough material for him to have
challaned the accused. On the same set of oral statement that was recorded by the earlier Investigating Officer, the subsequent Investigating Officer
could not reach to a different conclusion other than that was arrived by the earlier one.
7. Thus on perusal of the record, I find that there are grounds for presuming that Dr. Jatinder Mehta 9Husband) and Smt. Susheela Mehta (Mother-in-
law) have committed acts of cruelty towards the complainant, which had caused harassment to her thus inviting commission of offence under Section
498-A RPC. AS regards Smt. Prem Lata and Smt. Usha Mehta, the allegations are unsubstantial and without any basis. Hence process is directed
only against the husband of the complainant and mother-in-law for offence under Section 498-A RPC. The CD file of case FIR, which had been
produced by SPO is returned. Let the complaint come up for appearance of accused Jatinder Mehta and Smt. Susheela Mehta…â€
25. The learned counsel for the petitioner has energetically argued that the impugned order dated 25th November 2006 was passed without giving
opportunity of hearing to the petitioner. His submission is that once there is a Final Report, then, before the Magistrate rejects the same, he must hear
the accused. In this connection it may be mentioned that the Supreme Court in Bhagwant v. Commissioner, AIR. 1985 S. C. 1285, has held that prior
to accepting the Final Report, a notice must be given to the first informant or a person aggrieved and such a person must be heard. The ratio of the
said decision will be applicable to a contrary case as well, like the present one. In the present case, the petitioner is an accused in a case in which a
Final Report has been submitted. His grievance, and rightly so, is that before rejecting the Final Report he should have been heard. It is true that there
is no statutory provision that before rejecting the Final Report the Magistrate must hear the accused but there is also no statutory requirement that
before accepting the Final Report the complainant should be heard. If it is held that before accepting the Final Report the complainant must be heard,
then it cannot be understood by what logic the accused should be denied a right of hearing before the Final Report is rejected. The same principle
should apply to the complainant and the accused alike.Â
26. The Supreme Court in recent years has been steadily widening the scope of Articles 14 and 21 of the Constitution. In Maneka Gandhi v. Union of
India, AIR 1978 SC 597 (which is a Seven Judge Constitution Bench decision) the Supreme Court has emphasised that even where there is no
specific statutory requirement the principles of natural justice may apply. It has been also held that the procedure for depriving a man of his life and
liberty must be fair, reasonable and just. Similarly, in Bachan Singh v. State of Punjab, AIR 1982 SC 1825 it was held by the Supreme Court that
“every facet of the law which deprives a person of life or personal liberty would therefore have to stand the test of reasonableness, fairness and
justice in order to be outside the inhibition of Article 21â€. Having said so, once a Final Report is submitted, then before its rejection the accused
should be heard, for, it may be that he may be able to persuade the Magistrate that the Final Report was justified and no case is made out against him.
It will be unfair to hear only the person filing the protest petition but not the accused. Where a protest petition is filed against a Final Report, both the
parties should be heard as that procedure would be fair to the accused and the complainant and hence in accordance with the trend of the decisions of
the Supreme Court (from Maneka Gandhi's case onwards) in which the scope of Articles 14 and 21 of the Constitution has been greatly expanded and
it has been laid down that the procedure should be just, fair and reasonable. Once a final report is filed it is only fair and reasonable that the accused
should be heard before rejecting the Final Report and taking cognizance. I do not mean to say that cognizance cannot be taken on the basis of the final
report. The Supreme Court in M/s India Carat Pvt. Ltd. case (supra) has held that this can be done. But fairness demands that this should be done
only after hearing the accused, otherwise the accused may be put to unnecessary harassment.Â
27. It may not be out of place to mention here that the Constitution of the India is the supreme law of the land and the provisions in the criminal
statutes must be read and interpreted not in isolation but in the light of the constitutional provisions as interpreted by the Supreme Court. If upon an
investigation, it appears to the officer-incharge of the police station or to the police officer making the investigation that there is not sufficient evidence
or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him
and the Final Report can be filed before the Magistrate. It is true that the Final Report is not binding on the Magistrate and if the Magistrate differs
from the opinion of the I.O., he can take the cognizance or order for the further investigation, but that action of the Magistrate is a judicial action and
at that stage while taking decision on the Final Report the Magistrate has to act judicially as a Court. The Magistrate is required to weigh the prima
facie evidence and take a judicial decision.Â
28. In the present case, it is obvious from the very impugned order that it was only the protest complainant â€" respondent no.1 herein, who was heard
by the learned Trial Magistrate before passing the impugned order dated 25.11.2006. The Trial Court, indubitably, has, at the drop of a hat, taken the
cognizance without hearing the petitioner. This, thus, renders the impugned order unsustainable in the eye of law. I am also of the view that in the
peculiar facts of this case, continuation of proceedings of File no.100/compl., under section 498-A RPC, will amount to abuse of the process of the
court. This will not clinch the matter here.Â
29. For deciding whether the learned Trial Magistrate could take cognizance of offence punishable under Section 498-A, after expiry of three years, it
will be beneficial to notice the scheme of Chapter XLV-A of the Code of Criminal Procedure. Section 538-B of the J&K State Code of Criminal
Procedure, which is pari materia to Section 468 of the Central Code of Criminal Procedure, creates a bar against taking cognizance of an offence
after lapse of the period of limitation. Subsection (1) of Section 538-B lays down that except as otherwise provided elsewhere in the Code, no court,
shall take cognizance of an offence of the category specified in its subsection (2), after the expiry of the period of limitation. Subsection (2) specifies
different periods of limitation for different types of offences punishable with imprisonment for a term exceeding one year but not exceeding three
years. The period of limitation is three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three
years. Section 538-C specifies the point of time with reference to which the period of the limitation is to be counted. Section 538-D provides for
exclusion of time in certain cases. Subsection (4) thereof lays down that in computing the period of the limitation, the time during which the offender
has been absent from India or from any territory outside India which is under the administration of the Central Government or has avoided arrest by
absconding or concealing himself, shall be excluded.
30. Section 538-F, which deals with continuing offence, declares that in case of a continuing offence, a fresh period of limitation shall begin to run at
every moment of the time during which the offence continues. Section 538-G, which begins with non-obstante clause, empowers the court to take
cognizance of an offence after the expiry of the period of limitation, if it is satisfied that the delay has been properly explained and it is necessary so to
do in the interests of justice.
31. The object of the Section 538-B of the J&K State Code of Criminal Procedure (Section 468 of the Central Code) is to create a bar, as has been
noted by the Supreme Court, in the case of State of Punjab v. Sarwan Singh 1981 (3) SCC 34, against the belated prosecutions and is aiming at to
prevent the abuse of the process of the court. While noting so, the Supreme Court observed that this is in consonance with the concept of fairness of
trial enshrined in Article 21 of the Constitution. It would be apposite in this connection to recall a critical view expressed by the three Judges’
Bench of the Bombay High Court in Assistant Customs Collector v. L.R. Melwani (1970) 72 BOMLR 782, about the delay in launching a prosecution,
observing:
The question of delay in filing a complaint may be a circumstance to be taken into consideration in arriving at the final verdict.
32. The general rule of limitation is contained in, the Latin Maxims ""Vigilantibus et non, Dormientibus Jura Subveniunt"", meaning ""the vigilant, and not
the sleepy, are assisted by the laws."" In other words, in all actions, suits and other proceedings at law and in equity, the diligent and careful plaintiff is
favoured to the prejudice of the person who is careless. But, an exception is made in favour of the Crown : Nullum Tempus Aut Lucus occurrit
Regi†meaning that no time runs against, or place affects, the king. This implies that there can be no laches on the part of the king, i.e. the State and
that therefore no delay will bar his/its right. However, the new provisions under Chapter XLV-A of the Code, prescribing the periods of limitation in
certain categories of cases, having regard to the gravity of the offences and other relevant factors, have been introduced for the first time in the
Criminal Procedure Code.
33. The Supreme Court in the case of State of Punjab v. Sarwan
Singh (supra) has pointed out the object of Section 468, by observing that the object of the Criminal Procedure Code in putting a bar of limitation on
prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to
prevent abuse of the process of the Court by filing vexatious and belated prosecutions long after the date of the offence. The object which the statute
seeks to subserve is clearly in consonance with the concept of the fairness of the trial as enshrined in Article 21 of the Constitution of India. It is,
therefore, of the utmost importance that any prosecution, whether by the State or a private complainant, must abide by the letter of the law or take the
risk of the prosecution failing on the ground of limitation. The prosecution against the alleged accused being barred by the limitation, the conviction as
also the sentence of the alleged accused as also the entire proceedings culminating in the conviction of the alleged accused herein is non est. Thus, the
Supreme Court has gone to the extent of saying that the object of Section 468 is in consonance with the concept of the fairness of the trial as
enshrined in Article 21of the Constitution of India and that any proceeding culminating in the conviction in a criminal case, which has been taken
cognizance of after the expiry of the period of limitation, is non est.Â
34. In Jagmohan v. State, 1980 Cri LJ 742 (Delhi), Luthra, J., has quoted the observation of the Division Bench of the Delhi High Court in State v.
Anil Puri Criminal Appeal No. 389 of 1977 viz., that ""once cognizance is barred in favour of a person, he acquires a valuable right, this right cannot be
taken away except under law.
35. In Krishna v. State of M.P., 1977 Cri.LJ 90, it was held that in view of the mandatory bar contained in Section 468 to the court taking cognizance
of the offences after the lapse of the period of the period of the limitation, the overriding powers granted in Section 473 of the Code can be brought
into play only before cognizance of an offence is taken and not subsequently. It was further held that if the court acts otherwise, it would be clearly
acting without jurisdiction. Â
36. The Supreme Court in Venka Radhamanohari v. Vanka Venkata Reddy, 1993 (3) SCC 4, considered the applicability of Section 468 to the cases
involving matrimonial offences, referred to the judgment in Sarwan Singh’s case (supra) and observed:Â
“It is true that the object of introducing Section 468 was to put a bar of limitation on prosecutions and to prevent the parties from filing cases after a
long time, as it was thought proper that after a long lapse of time, launching of prosecution may be vexatious, because by that time even the evidence
may disappear. This aspect has been mentioned in the statement and object, for introducing a period of limitation, as well as by this Court in the case
of Sarwan Singh (supra). But, that consideration cannot be extended to matrimonial offences, where the allegations are of cruelty, torture and assault
by the husband or other members of the family to the complainant. It is a matter of common experience that victim is subjected to such cruelty
repeatedly and it is more or less like a continuing offence. It is only as a last resort that a wife openly comes before a court to unfold and relate the
day-to-day torture and cruelty faced by her, inside the house, which many of such victims do not like to be made public. As such, courts while
considering the question of limitation for an offence under Section 498-A i.e. subjecting a woman to cruelty by her husband or the relative of her
husband, should judge that question, in the light of Section 473 of the Code, which requires the Court, not only to examine as to whether the delay has
been properly explained, but as to whether it is necessary to do so in the interests of justice.â€
37. The Supreme Court then compared Section 473 Cr.P.C. (Section 538-G of the J&K Cr.P.C.) with Section 5 of the Limitation Act and observed :
“For exercise of power under Section 5 of the Limitation Act, the onus is on the appellant or the applicant to satisfy the court that there was
sufficient cause for condonation of the delay, whereas Section 473 enjoins a duty on the court to examine not only whether such delay has been
explained but as to whether it is the requirement of the justice to condone or ignore such delay. As such, whenever the bar of Section 468 is
applicable, the court has to apply its mind on the question, whether it is necessary to condone such delay in the interests of justice. While examining
the question as to whether it is necessary to condone the delay in the interest of justice, the Court has to take note of the nature of offence, the class
to which the victim belongs, including the background of the victim. If the power under Section 473 of the Code is to be exercised in the interests of
justice, then while considering the grievance by a lady, of torture, cruelty and inhuman treatment, by the husband and the relatives of the husband, the
interest of justice requires a deeper examination of such grievances, instead of applying the rule of limitation and saying that with lapse of time the
cause of action itself has come to an end. The general rule of limitation is based on the Latin maxim : v igilantibus, et non, dormientibus, jura
subveniunt (the vigilant, and not the sleepy, are assisted by the laws). That maxim cannot be applied in connection with offences relating to cruelty
against women.â€
38. A Three Judges’ Bench of the Supreme Court in State of H.P. v. Tara Dutt, 2000 (1) SCC 230, considered whether there can be a
presumption of condonation of delay under Section 473 Cr. P.C. and observed that Section 473 confers power on the court taking cognizance after the
expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained and that it
is necessary so to do in the interest of justice. Obviously, therefore in respect of the offences for which a period of limitation has been provided in
Section 478, the power has been conferred on the court taking cognizance to extend the said period of limitation where a proper and satisfactory
explanation of the delay is available and where the court, taking cognizance, finds that it would be in the interest of justice. This discretion conferred
on the court has to be exercised judicially and on well-recognised principles. This being a discretion conferred on the court taking cognizance,
wherever the court exercises this discretion, the same must be by a speaking order, indicating the satisfaction of the court that the delay was
satisfactorily explained and condonation of the same was in the interest of justice. In the absence of a positive order to that effect it may not be
permissible for a superior court to come to the conclusion that the court must be deemed to have taken cognizance by condoning the delay whenever
the cognizance was barred and yet the court took cognizance and proceeded with the trial of the offence.Â
39. A mere reading of the Section 473 (Section 538-G of the J&K State Code) would itself show that a court can take cognizance of the offence after
the period of limitation only after condoning the delay. In other words, the condonation of the delay must precede the taking cognizance of the offence.
To say that the court has power to exercise the jurisdiction vested in it under section 538-G of the Code of Criminal Procedure after taking the
cognizance of the offence could mean that this power can be exercised at any stage, i.e., even at the time of delivering the judgment after trial. That
cannot be the intendment of the Legislature. In my view, it is incumbent upon every Magistrate before taking cognizance of a complaint to apply his
mind to the question of limitation and if prima facie the complaint is out of time, to decide the question of limitation after due notice to the complaint
and to the accused. I am unable to visualise any difficulty in issuing notice to the accused before taking the complaint on file by giving a Criminal
Miscellaneous number and hearing the parties on the question of limitation, as is done under Section 5Â of the Limitation Act.
40. For all the discussions made above, I hold that Section 538B Cr.P.C. which prohibits every court from taking cognizance of the categories of
offences in respect of which the periods of limitation, have been prescribed under subsection (2) of that section, after the expiry of such periods of
limitation, vests a valuable right in the persons sought to be prosecuted. The main object of such a prohibition is to see that the parties do not resort to
the dilatory tactics and to shut out the belated and dormant claims in order to save the accused persons from the unnecessary harassment but to seek
their remedies within the statutory periods fixed by the legislature.Â
41. As observed by the Supreme Court in State of Punjab v. Sarwan Singh (surpa), this object, which the statute seeks to subserve, is clearly in
consonance with the concept of the fairness of the trial as enshrined in Article 21 of the Constitution. Therefore, it is of the utmost importance that
any prosecution, whether by the State or by a private person, must abide by the letter of law and take the risk of the prosecution failing on the ground
of limitation. This valuable right accrued to an accused person cannot be allowed to be taken away except by strictly satisfying the conditions
prescribed under Section 538-G and that too for proper reasons. Section 538-G, which is an exception to Section 538-B, empowers the court to extend
the period of limitation in certain cases, which power has to be exercised having regard to the facts and circumstances of those cases. As the
discretion granted under Section 538-G is wider, the very width requires a corresponding caution on the part of the court while exercising that power.
Of course, it cannot be laid down by any hard and fast rule as to what constitutes the sufficient reason to properly explain the delay occasioned or as
to what is necessary so to do in the interests of justice. It must be determined with reference to the facts and circumstances of each particular case.
In other words, the limitation of Court's jurisdiction must obviously be dictated by the exigency of the situation and fair-play and good sense have to be
the only safeguard. This power must be exercised only in suitable cases where the court is satisfied that the delay has been properly explained or it is
in the interests of justice, because the court, being the legal custodian and guardian of the rights of the citizens, has a primary obligation to protect them
from vindictive or vexatious time-barred prosecutions, and the valuable vested right should not be easily brushed aside or whittled down by
indiscriminately exercising this discretionary power. When once the court is satisfied that the delay has been properly explained or that it is necessary
for the court so to do in the interests of justice, then there cannot be any restriction or limit or fetter in the exercise of such power. Needless to say,
that the discretion should not be exercised in a capricious or arbitrary manner or for fanciful reasons. This discretionary power vested in the court can
be exercised by applying its mind to the facts and circumstances of the case and considering the reasons offered by the complainant in justification of
his request for condonation of delay, which reasons can be made either in the complaint or the charge-sheet, as the case may be, or in a separate
application filed for the purpose, or the Court itself may suo motu condone the delay on its being satisfied, on the facts and in the circumstances of the
case, that it has become necessary so to do in the interests of justice.Â
42. In any case, the exercise of the power under Section 538-G, extending the period of limitation by condoning the delay in launching the prosecution,
should precede the taking cognizance of the offence. While so exercising such discretionary power, the court is obliged to record its order in writing,
giving its reasons therefor. In my opinion, any proceeding culminating in the conviction of a person in a criminal case, the cognizance whereof has
been taken after the expiry of the period of limitation as prescribed under 538-B (2) without first resorting to 538-F, is non est in the eye of law.Â
43. Having regard to what has been said and done above, the impugned order of the learned Trial Magistrate cannot sustain. The instant petition is,
accordingly, allowed. The order of the learned Trial Magistrate (Municipal Magistrate, Jammu) dated 25.11.2006 passed in File no.100/compl., is set-
aside, and as a corollary the complaint titled Shivani Mehta v. Dr Jitender Mehta and others, is also quashed.
44. Trial Court record along copy of this order be sent down.
