Wednesday, 18 September 2019

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
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.

9. Before parting with this order, we must make a reference to the
argument made by Ms.Shah, learned counsel for respondent No.2,
regarding petitioner being serial sexual offender and the provisions of
limitation could not be made applicable to sexual offences. We are unable
to accept the said argument in the absence of any supporting material.
Section 468 of Cr.PC. is applicable to every offence under IPC and
offences under Sections 354 and 509 as alleged against the petitioner are
under IPC. The allegations against the petitioner that he is a serial sexual
offender would not be relevant to examine the validity and legality of
subject criminal proceedings pending before the learned Magistrate.
10. Taking totality of the facts and circumstances of the case into
consideration, we are of the view that continuation of the impugned
proceedings against the petitioner would be abuse of the process of law
and, therefore, same are required to be quashed and set-aside. The writ
petition is, accordingly, made absolute in terms of prayer clause (a) and is
disposed off as such.
[N. J. JAMADAR, J.] [RANJIT MORE, J.]

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