Asha Arora, J. - (1.) By the instant application petitioners have assailed the order dated 20/4/2017 passed by the learned Judicial Magistrate, 10th Court, Alipore in ACGR Case No. 12561 of 2012 arising out of Jadavpur P.S. Case No. 649 of 2012 dated 18/11/2012 under section 498A/323/114 of the Indian Penal Code whereby a petition dated 7/12/2016 filed by the accused persons/petitioners herein praying for discharge from the said case was rejected on contest and the case was posted for framing of charge. The petitioners have sought for quashing of the aforesaid proceeding which is pending before the trial Court.
(2.) The facts in brief leading to the present application may be summarized as follows: On 25/10/2012 the opposite party no. 2 herein/complainant lodged a written complaint at Jadavpur P.S. alleging offences under 498A/323/114 IPC against the petitioners who are the husband and mother-in-law of the opposite party no. 2. According to the aforesaid complaint, on 1/12/1995 the complainant was married to the petitioner no. 1 whereafter she started residing in her matrimonial home with her husband and in laws. It is alleged by the complainant that she was subjected to mental and physical torture by her husband and his family members regarding caste, age and household articles which were given by her mother at the time of marriage. Her husband would pressurize her to bring money from her father's house and assault her on the provocation of her mother-in-law. Within a few months of her marriage when she became pregnant, her husband made her undergo abortion. On 27/8/1999 when the complainant gave birth to a female child, her mother-in-law would taunt and humiliate her for not giving birth to a male child. Her husband continued to torture her when she went to reside with him in his place of posting at Kanpur. In the year 2003 the complainant returned with her husband to Kolkata and started residing with her in laws. Again the physical torture upon her by her husband and in laws started. In August 2005 the petitioner no. 1 shifted to another flat with the complainant and her daughter. During their stay in the said flat the complainant would protest against her husband's illicit relation with other women so he started residing in a separate room and later shifted to another apartment on the third floor of the same building. It is further alleged that a divorce suit has been filed by her husband who continued to assault her for which she made several diaries at Jadavpur P.S.. Lastly on 23/10/2012 her husband along with her mother-in-law entered her flat and started assaulting her in consequence of which she sustained injuries. On the basis of the aforesaid written complaint the criminal proceeding being Jadavpur P.S. Case No. 649 of 2012 dated 18/11/2012 was initiated. Investigation culminated in the submission of the charge-sheet under section 498A/323/114 IPC against the present petitioners.
(3.) Learned senior counsel appearing for the petitioners strenuously argued that the allegations made in the written complaint and the materials collected during investigation indicate that the last act of cruelty was allegedly committed in the year 2005 but the complaint was lodged in the year 2012 (on 25/10/2012) followed by investigation thereon so in view of section 468 of the Code of Criminal Procedure, taking of cognizance is barred by limitation. To buttress such submission reliance has been placed upon the case of State of Punjab versus Sarwan Singh reported in, 1981 AIR(SC) 1054. Reference has been made to the case of Arun Vyas and another versus Anita Vyas reported in, 1999 AIR(SC) 2071 (paragraph 9) in support of the submission that the issue of limitation should be considered by the trial court at the stage of framing of charge. If taking cognizance of the offence itself is contrary to any provision of law, like section 468 CrPC, the complaint being barred by limitation, the charge cannot be framed and the accused should be discharged. It is argued that the point of limitation was urged before the learned Magistrate with reference to section 469(1)(a) CrPC but it has erroneously been observed in the impugned order that such an issue is a mixed question of fact and law which can only be decided by evidence during trial. It is further argued that the contents of the written complaint do not disclose the ingredients of the offence under section 498A IPC. So far as the petitioner no. 2 is concerned, there is no iota of material either under section 498A or under section 323 IPC. Learned counsel sought to impress that the allegations in the FIR and the statement of witnesses indicate that on and from 2005 the petitioner no. 1, the complainant and their daughter were residing separately from the petitioner no. 2 though she had her residence in the same building. It is canvassed that the alleged presence of the petitioner no. 2 on 23/10/2012 in the flat of the complainant at or around the time when she was allegedly assaulted by the petitioner no. 1 does not characterize her as an abettor within the meaning of section 107 IPC. To fortify his argument learned counsel for the petitioners placed reliance upon Satish Mehra versus State (NCT of Delhi) and Another reported in, 2012 13 SCC 614, Geeta Mehrotra and another versus State of Uttar Pradesh and another reported in, 2012 10 SCC 741, Varala Bharath Kumar and another versus State of Telangana and another reported in, 2017 3 SCC(Cri) 740 and Century Spinning & Manufacturing Co. Ltd. versus State of Maharashtra reported in, 1972 AIR(SC) 545. Reference has also been made to the case of State of U.P. versus Dr. Sanjay Singh and another reported in, 1994 SCC(Cri) 1701 and State Anti Corruption Bureau Hyderabad and another versus P. Suryaprakasam reported in, 1999 SCC(Cri) 373.;