ASHUTOSH CHOWDHURY Vs. STATE
HIGH COURT OF CALCUTTA
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(1.)By this revision under Sections 397 and 401 read with Section 482 of the Code of Criminal Procedure, the petitioners have challenged a proceeding in G.R. Case No. 19 of 1992 arising out of Deganga P.S. Case No. 1 dated 2-1-92 under Section 498A/406/120B of the Indian Penal Code, pending in the Court of the learned Sub-divisional Judicial Magistrate, Barasat, North 24-Paraganas. According to the petitioners, the entire incident happened on and from 8th May, 1985 and continued up to 4th April, 1986 when, according to the wife opposite party No. 2, she was driven out from her matrimonial home. Thereafter, on 2nd July, 1991 the wife opposite party No. 2 filed a petition of complaint alleging torture, both mental and physical, by the accused persons upon her and the said complaint was forwarded to the police by the learned Magistrate in exercise of his power under Section 156(3) of the Code of Criminal Procedure. The said complaint was treated as an FIR and the police case was started being Deganga P.S. Case No. 1 dated 2-4-92 under Sections 498A/406/120B of the Indian Penal code, as stated above. The matter was investigated by the police and the charge-sheet was submitted on 5th June, 1992 and cognizance was taken upon that charge-sheet on 15th February, 1993.
(2.)Appearing for the petitioners, learned Advocate, Mr. Debi Prosad Sengupta, contended that the order of taking cognizance is bad inasmuch as the cognizance had been taken at a point of time when the period of limitation had already started, and taking cognizance is a bar under Section 468 of the Code of Criminal Procedure. According to, Mr. Sengupta, cognizance has been taken against the accused persons by the learned Magistrate for offence under Sections 498A and 406 of the Indian Penal Code. Mr. Sengupta submitted that both the offences are not in the nature of continuing offence and as such the provision of Section 468 of the Code of Criminal Procedure will apply in the instant case with all its intents and purposes. His second contention is that unless and until an application is made for condonation of delay under Section 473 of the Code of Criminal Procedure and unless the matter has been disposed of by the learned Magistrate with notice upon the accused persons there is a bar of taking cognizance in the matter. In support of his submission Mr. Sengupta relied upon two decisions of the Supreme Court in the case of the State of Maharashtra v. Sharadchandra Vinayak Dongre, reported in 1955 SCC (Crl) 16 : (AIR 1995 SC 231). He submitted that the offence under Section 406 of the Indian Penal Code is not a continuing offence. Mr. Sengupta further placed reliance on a Supreme Court decision in the case of the State of Punjab v. Sarwan Singh reported in AIR 1981 SC 1054 : (1981 Cri LJ 722) and also on a decision of a single Bench of this Court in the case of Dinabandhu Banerjee v. Nandini Mukherjee reported in (1993) 2 Cal HN 292 (1994 Cri LJ 422).
(3.)Mr. Pinaki Ranjan Mitra, learned Advocate appearing for the opposite party No. 2, on the other hand, contended that Section 406 is a continuing offence as it is a stridhan property and as such Section 468 has no manner of application in this case. In the second place, he contended that Section 473 of the Code of Criminal Procedure can be applied by the learned Magistrate suo motu for the purpose of condonation of delay if the learned Magistrate is satisfied that it is required for the interests of justice. In support of his submission Mr. Mitra relied on two Supreme Court decisions in the case of Bhagirath Kanoria v. The State of M.P. reported in AIR 1984 SC 1688 and in the case of Vanka Radhamanohari (Smt.) v. Vanka Venkata Reddy, reported in (1993) 3 SCC 4 : (1993 AIR SCW 3595).
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