Law Web: When prosecution for sexual offence is liable to be quashed?

The commission of offence as alleged by respondent No.2

against the petitioner is in the month of February, 2004. On that day,

offence under Section 354 of the IPC was punishable with imprisonment

of either description for a term which may extend to two years, or with

fine, or with both and offence under Section 509 of the IPC was

punishable with simple imprisonment for a term which may extend to one

year, or fine, or both. If the punishment provided under offences under

Sections 354 and 509 of the IPC is considered along with limitation

provided under Section 468 of the Cr.PC., then, it is clear that for the

offences punishable under Section 509 of the IPC, the limitation provided

is of one year and for offences punishable under Section 354 of the IPC is

concerned, the limitation provided is of three years.

8. No doubt, the provisions of Section 473 of the Cr.PC. deals

with extension of period of limitation in certain cases. Under these

provisions, the Court may take cognizance of an offence after the expiry

of the period of limitation, provided it is satisfied on the facts and

circumstances of the case that the delay has been properly explained or it

is necessary to do so in the interests of justice. The subject FIR came to

be filed 14 years after the occurrence of the incident in question and

11 years after the period of expiration of limitation. We have perused the

order taking cognizance by the concerned Magistrate and, we find that

neither there is an application by the prosecutions for extension of

limitation or condonation of delay nor there are reasons for condoning

such delay by the Magistrate. In other words, neither delay is properly

explained nor there are reasons by Magistrate for condoning the same in

the interests of justice. In our opinion, the Magistrate, after expiry of the

period of limitation, could not have taken cognizance especially in the

absence of explanation under Section 473 of the Cr.PC..

9. The Apex Court in Bhajanlal and ors. (supra) has given

categories of cases, by way of illustrations, wherein powers of the High

Court under Article 226 of the Constitution of India and Section 482 of the

Cr.PC. can be exercised to secure the ends of justice. We are concerned

with category (6) which reads as under :

“102….

(6) Where there is an express legal bar engrafted in any of the

provisions of the Code or the concerned Act (under which a criminal

proceeding is instituted) to the institution and continuance of the

proceedings and/or where there is a specific provision in the Code

or the concerned Act, providing efficacious redress for the

grievance of the aggrieved party.”

The facts and circumstances of the present case, in our

considered opinion, clearly falls in the above category. We are satisfied

that the Magistrate, in view of the provisions of Section 468 of the Cr.PC

and when there is no case made out under Section 473 of the Cr.PC.,

could not have taken cognizance. Continuation of the prosecution of the

petitioner, therefore, in our opinion, would be abuse of the process of law.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO. 1854 OF 2018

Mahesh Murthy vs The State of Maharashtra

CORAM : RANJIT MORE & N. J. JAMADAR, JJ.

DATE : 9th

SEPTEMBER, 2019.

Rule. Rule is made returnable forthwith and, by consent, the

matter is heard finally.

2. Heard learned counsel and learned APP appearing for the

respective parties.

3. The petition is filed for quashing and setting-aside the

proceedings of CC No.1172/PW/2018 pending on the file of learned

Metropolitan Magistrate, 12th Court at Bandra, Mumbai. The said case

arises out of registration of FIR bearing CR No.174 of 2018 with Bandra

Police Station, at the instance of respondent No.2, for the offences

punishable under Sections 354 and 509 of the Indian Penal Code, 1860

(for short “the IPC”). The said FIR is registered on 16th March, 2018 and

after completion of investigation, charge-sheet is filed before the

concerned Magistrate at Bandra and cognizance of the offence is taken

by the Magistrate on 3rd September, 2019.

4. Dr. Chaudry, learned counsel for the petitioner, took us

through the charge-sheet and especially the FIR. He stated that he is not

disputing the allegation in the FIR for the purpose of quashing. He

submitted that even if the allegations made in the FIR are taken on face

value, the same are barred by limitation and, therefore, cognizance could

not have been taken. He relied upon the decision of the Hon’ble Apex

Court in the case of State of Haryana and ors. versus Bhajanlal and

ors. 1992 Supp (1) SCC 335.

5. Ms. Shah, learned counsel for respondent No.2, opposed the

petition vehemently. She submitted that the petitioner is a serial sexual

offender and charge-sheet being filed after completion of investigation

into the subject FIR, this Court should not entertain the petition in

exercise of jurisdiction conferred upon it under Article 226 of the

Constitution of India and under Section 482 of the Code of Criminal

Procedure, 1973 (for short “the Cr.PC.”). She also submitted that the

limitation provided under Section 468 of the Cr.PC. does not apply to

sexual offences. She lastly submitted that the petitioner should face the

trial and there in no question of the quashing the proceedings of the

subject criminal case, at this stage.

6. We have considered the rival submissions. We have also gone

through the charge-sheet and especially the FIR. The FIR, as stated, is

registered on 16th March, 2018. The allegations made by the

complainant/respondent No.2 against the petitioner is in respect of the

incident that occurred in the month of February 2004, when the petitioner

and the complainant were sitting in a coffee shop and the petitioner

misbehaved with her by putting his hands on her thigh and by kissing her

against her will. As stated above, investigation into the subject FIR,

having been completed, charge-sheet is filed and cognizance of the

offence is also taken on 3rd September, 2019.

7. Section 468 of the Cr.PC speaks about limitation period to

take cognizance of an offence, which reads as follows:

“468. Bar to taking cognizance after lapse of the period of

limitation.

(1) Except as otherwise provided elsewhere in this Code, no Court

shall take cognizance of an offence of the category specified in

sub- section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be-

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for

a term not exceeding one year;

(c) three years, if the offence is punishable with imprisonment

for term exceeding one year but not exceeding three years.

(3) For the purposes of this section, the period of limitation in

relation to offences which may be tried together, shall be

determined with reference to the offence which is punishable with

the more severe punishment or, as the case may be, the most

severe punishment.”

7. The commission of offence as alleged by respondent No.2