Akbar Basha vs State of Tamil Nadu

K. Govindarajan, J.—The Petitioner has filed the above Crl.O.P. to quash the proceedings in S.C. No. 19 of 1997 on the file of the Assistant Sessions Judge, Dharmapuri, in so far as the Petitioner is concerned.

To appreciate the case, the following facts are necessary:

The first accused married the deceased on 22.8.1993. It is alleged that at the time of marriage A-1 to A-3 demanded and accepted dowry by way of jewellery, cash and motorcycle. Ever-since the date of marriage she was subjected to mental cruelty by the abovesaid accused A-1 to A-3 by demanding further dowry from her parents as result of which she committed suicide on 28.2.1993. She was cremated in the village itself before the arrival of her parents. Thereafter on 18.12.1993 a complaint was lodged by the father of the deceased and a case was registered in Crl. No. 497 of 1993 under Sections 498-A, 306, 304(B) of the Indian Penal Code read with Section 4 off the Dowry Prohibition Act. Thereafter the Petitioner was charged u/s 202 of I.P.C. along with other two village menials on the ground that they failed to give information about the commission of the offence by other accused. The charge sheet was filed on 21.2.1995. The Petitioner is the fifth accused in the said proceedings.

In the chargesheet it is stated as follows:-

At about the same place and in the course of the same transaction A-4 to A-7 knowing that the offences have been committed by A-1 to A-3 u/s 498-A, 306, and 304(B) of I.P.C. and Section 4 of the Dowry Prohibition Act intentionally omitted to give information about the said suicide though they were legally bound to give such information to the police and to other authorities and thereby A-4 to A-7 have committed an offence punishable u/s 202 I.P.C.

Thereafter the learned Magistrate has committed the case to the Sessions Court by his order dated 5.3.1997. To quash the said proceedings, the above Crl.O.P. has been filed.

The learned Counsel appearing for the Petitioner has submitted that even according to the prosecution the Petitioner is alleged to have committed the offence only u/s 202 I.P.C. and taking into consideration of the date of occurrence, the Court cannot take cognizance of the offence as it is beyond the period of limitation prescribed under the law. According to the prosecution the alleged offence has been committed on 28.11.1993 and chargesheet was filed only on 21.2.1995. The committal order was passed on 5.3.1997. The punishment u/s 202 of I.P.C. may extend to six months or with fine or with both. So, the Court should take cognizance of the offence within one year as contemplated u/s 468 of Code of Criminal Procedure. Section 469 of Code of Criminal Procedure explains about the commencement of period of limitation. In this case if it is commenced from the date of occurrence, the Court cannot take cognizance of the offence, in view of the prohibition u/s 468(1) and (2) Code of Criminal Procedure

The learned Counsel appearing for the Petitioner has submitted that even in the statements recorded u/s 161 Code of Criminal Procedure nowhere it is stated that the Petitioner had knowledge about the occurrence. According to the statement of the Petitioner he knew about the date of occurrence of the offence only on 14.12.1993 and immediately he informed the Tahsildar on the same date.

Per contra, the learned Government Advocate, Mr. Kumaresan, has submitted that in view of Section 468(3) of Code of Criminal Procedure, the period of limitation should be determined with reference to the offence which is punishable with more severe punishment. In this case, according to him, the other accused are liable to be punished u/s 304-B, 498-A and 306 of I.P.C. and Section 4 of the Dowry Prohibition Act. On this basis the learned Government Advocate has submitted that it cannot be said that the Petitioner can take advantage of the period of sentence contemplated for the offence u/s 202 of I.P.C. and that it is barred by limitation.

Section 468 of Code of Criminal Procedure reads as follows:

"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 a term exceeding one year but not exceeding three years.

(3) For the purpose 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 more severe punishment or, as the case may be, the most severe punishment".

Section 468(3), Code of Criminal Procedure had been inserted by Act 45 of 1978 for the following object:-

"In the new Code, there is no provision for computing the period of limitation in relation to offences which can be tried together. Section 468 is being amended to provide that for the purpose of computing the period of limitation in relation to offences which may be tried together, the offence for which the more severe punishment or as the case may be, the most severe punishment can be imposed shall be taken into account".

Section 468(3) Code of Criminal Procedure applies in a case where more than one offence which may be tried together is involved. According to the said provision, in relation to offences which may be tried together, the period of limitation should be determined with reference to the offence which is punishable with more severe punishment.

Section 223 of Code of Criminal Procedure speaks about the persons who may be charged jointly. Section 223(d), Code of Criminal Procedure reads as follows:-

Section 223. What persons may be charged jointly - The following persons may be charged and tried together, namely:-

(a)...

(b)...

(c)...

(d) persons accused of different offences committed in the course of the same transaction.

What is meant by "same transaction" is not defined in the Code Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case. Generally it is thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of series of acts, it may be possible to infer that they form part of the same transaction. The Apex Court in the judgment reported in State of Andhra Pradesh Vs. Cheemalapati Ganeswara Rao and Another, has explained the meaning of the expression the ''same transaction'' as follows:-

"While providing for the joint trial for more than one offence, indicates that there must be connection between the acts and the transaction. According to this provision there must thus be a connection between a series of acts before they could be regarded as forming the same transaction. What is meant by "same transaction" is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co- exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction. The connection between a series of acts seems to us to be an essential ingredient for those acts to constitute the same transaction".

In this case the transaction is the suicide of the deceased on 28.11.1993. In the said course of transaction, the accused in this case had committed different offences. So, all the charges have to be tried together. That being so, Section 468(3) of Code of Criminal Procedure will squarely apply to the Petitioner also. Then the period of limitation should be taken into account with reference to the offences which are punishable with more severe punishment in the same transaction. So, the Petitioner cannot take advantage of the limitation as alleged by him and the proceedings initiated against him cannot be quashed.

The learned Counsel has submitted on merits that no evidence is available against the Petitioner to constitute the offence u/s 202 of I.P.C. At this stage, this Court cannot go into the evidence and arrive at a conclusion that no offence is made out against the Petitioner for the purpose of exercising the powers u/s 482 of Code of Criminal Procedure

In view of the above, I do not find any valid ground to quash the proceedings. Hence this Crl.O.P. is dismissed.