SHIVA SANKAR BABA VS STATE, REPRESENTED BY INSPECTOR OF POLICE AND ANOTHER
| COURT MADRAS HIGH COURT |
| BENCH R.N. MANJULA, J |
| PARTY SHIVA SANKAR BABA(PETITIONER) STATE,REPRESENTED BY INSPECTOR OF POLICE AND ANOTHER (RESPONDENT) |
| DATE OF JUDGEMENT OCTOBER 17, 2022 |
| CITATION 2022 SCC ONLINE MAD 4971 |
| ADVOCATES MR. R. VIJAYA KUMAR (PETITIONER) MR .A. DAMODARAN ADDITIONAL PUBLIC PROSECUTOR (RESPONDENT) |
| RELATED SECTION: SECTION 354 OF IPC SECTION 4 OF TAMIL NADU PROHIBITION OF HARASSMENT OF WOMAN ACT, 2002 SECTION 468 CR.P.C |
FACT OF THE CASE:
Second Respondent registered a complaint through email against the petitioner and stated that she got a chance to meet the petitioner in connection with her son’s academic issue.
His son is said to have got admitted in Sushil Hari International Residential School which is being run by the petitioner. During the academic year 2010-2011, when the complainant’s son attended the school, he was suddenly removed from the school and his Transfer Certificate was also given. So the complainant (second respondent) went to the school and met the school authorities by this she got a chance to meet the petitioner and during that time, it was alleged that the complainant was sexually harassed by the petitioner and for which a case has been registered against the petitioner for the offences under Section 354 IPC and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002. So the Criminal Original Petition filed by the petitioner to call for the records pertaining to Crime No. 2 of 2021 which is registered by the First Respondent Inspector of Police, CBCID, OCU Police Station II, Chennai and to quash the same as against the petitioner also the
allegations of sexual harassment made by the second respondent against the petitioner herein, a case in Cr. No. 2 of 2021 was registered for the offences under Section 354 IPC and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002.
ARGUMENTS:
BY LEARNED COUNSEL OF THE PETITIONER:
a. He submitted that the case itself is totally barred by limitation because of the expiry of the prescribed limit under section 468 Cr PC. As the maximum punishment for offence under section 354 IPC is 2 years and for the offence under section 4 of Tamil Nadu Prohibition of Harassment of Woman, the maximum punishment is 3 years. Since more than 3 years have lapsed so the case is clearly barred by limitation.
b. In support of his above statement learned counsel cite the decision of the Hon’ble Supreme Court in the case of State of Haryana v. Bhajan Lal reported in 1992 SUPP (1) SCC 335 and submitted that if there is any legal bar to the institution and continuation of the proceedings, the FIR should be quashed.
FIRST RESPONDENT:
a. He states that there is sufficient material available on record to make out the case against the petitioner under Section 354 of IPC and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002. He said that the petitioner is a highly influential person and due to fear the complainant ( second petitioner) who is a single mother would not have come forward to give the complaint immediately after the occurrence of the event.
b. The sexual atrocities of the petitioner came in light recently and he has been charged for offences under POCSO Act for causing sexual abuse against many children of the school; the petitioner was in the habit of targeting innocent children, students who are economically weak, children of single parents on various occasions and abused them sexually. So, due to fear, family relations, personal reputation and all other said factors they did not file the complaint immediately. The delay in lodging the complaint cannot be the reason for not accepting the complaint of sexual harassment. He requested the Court to condone the delay for appropriate reasons; hence, the proceedings cannot be quashed on the ground of delay.
c. He also extracted the judgement of the Hon’ble Supreme Court rendered in the case of Neeharika Infrastructure Pvt. Ltd v. State of Maharashtra i.e.
i. Police have a statutory right and duty to investigate a cognizable offence.
ii. Courts would not thwart any investigation into cognizable offences.
iii.Criminal proceedings ought not to be scuttled at the initial stage.
iv. Quashing of a complaint/FIR should be an exception rather than an ordinary rule.
d. The one and only argument submitted by the petitioner is huge delay in filing the complaint which is barred by the limitation. Though it is barred by limitation but the public prosecuter submitted even at the time of filing the charge sheet before the
e. Court, the prosecution would file a petition for extension of period of limitation under Section 473 Cr.PC. and get the delay condoned and hence the FIR cannot be quashed on the ground of delay alone. f. The reason for not filing the complaint is not only the fear and in the mind of the victim, but also the intimidating influential position of the perpetrator in the society. The petitioner is an influential religious person who projected himself as the star of hope for many people and for whom there were a lot of devotees. There are also some serious complaints against the petitioner that the children studying in his school were the targets for his sexual exploitations. It is not uncommon when long suppressed illegal acts of any influential person are brought out, many people affected by him.
g. The second respondent who was victim of sexual harassment also tried to swallow the bitter part of his life,like many other women she also tried to suppress the occurrence within herself but she gathered courage after seeing many complaints of sexual abuse made against the petitioner and he was arrested.
h. No doubt the case is barred by limitation in view of Section 468 Cr.P.C. However, a chance should be given to prove the facts and circumstances and if proof then, the court may make cognizance of an offence by the magistrate after the expiry of the period of limitation.
In Sarah Mathew v. Institute of Cardiovascular Diseases reported in (2014) 2 SCC 62 the Hon’ble Supreme Court held that the Magistrate takes cognizance when he applies his mind or takes judicial notice of an offence with a view to initiating proceedings.Taking cognizance is entirely an act of the magistrate and it may be delayed because of several reasons. It may be delayed because of systemic reasons. It may be delayed because of the Magistrate’s personal reasons.
REASONING AND JUDGEMENT:
Keep this argument in mind and examine both points of view whether the date of taking cognizance or the date of complaint is material for computing limitations.
If the date on which complaint filed is taken to be material
a. If a complaint is filed within limitation so no question of time barred arises.
b. If a complaint is filed after limitation, the complainant has to make an application under section 373 CrPC for the condonation of delay and court has to issue notice to the accused. Heard the accused and the complainant and then, the court decided whether to condone the delay or not.
If the date of taking the cognizance is considered to be material
a. If the court takes cognizance within limitation so no question of time barred arises.
b. If the court takes cognizance after the period of limitation so the question arises how section 473 CrPC works. If the delay is caused by the Magistrate by not taking cognizance in time, it is absurd to expect the complainant to make an application for condonation of delay. The complainant surely cannot explain that delay. Then in such a situation, the question is whether the Magistrate has to issue notice to the accused, explain to the accused the reason, why delay was caused and then hear the accused and decide whether to condone the delay or not. This would also mean that the Magistrate can decide whether to condone delay or not, caused by
him. Such a situation will be anomalous and such a procedure is not known to law. But, we do find this situation absurd. It is absurd to hold that the court should issue notice to the accused for condonation of delay, explain the delay caused at its end and then pass an order condoning or not condoning the delay. The law cannot be reduced to such absurdity. Therefore, the only harmonious construction which can be placed on Sections 468, 469 and 470 CrPC is that the Magistrate can take cognizance of an offence only if the complaint in respect of it is filed within the prescribed limitation period.
Court further observed that there is a basic difference between section 5 of the Limitation Act and Section 473 of the Criminal Procedure Code.
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. By examined in the light of legislative intent and meaning ascribed to the term “cognizance” by this Court, it is clear that Section 473 CrPC postulates condonation of delay caused by the complainant in filing the complaint. It is the date of filing of the complaint which is material.”
In the above judgement, the Hon’ble Supreme Court has laid down the law by stating that the petition to condone the delay should be filed at the time of giving the complaint itself. It was admitted that at the time of filing the complaint, no petition under Section 473 Cr.P.C. was filed.The FIR sent to the Magistrate did not accompany any petition filed under Section 473 CrPC. The act of cognizance by the Magistrate would start from the moment the Magistrate applies his mind while reading the FIR. Hence the relevant date for filing the petition under Section 473 Cr.P.C. is the date on which the complaint is sent to the Magistrate and not while filing the final report.
Though the allegations made by the second respondent are serious in nature, because of the absence of any petition under Section 473 Cr.P.C. to condone the delay filed along with the complainant, the case becomes barred by limitation. In the said circumstances, I feel that the investigation cannot serve any fruitful purpose and for the reasons of technical flaw, the FIR is liable to be quashed. Accordingly, the Criminal Original Petition is allowed and the case in Cr. No. 2 of 2021 on the file of the first respondent is hereby quashed. Consequently, the connected miscellaneous petition is closed.
This article is written by ALI MOHD SAMAD, Intern at LEGAL VIDHIYA.
