ORDER
1. The challenge in this petition filed under section 482 of the Code of Criminal Procedure ('the Code' for short) is to the order dated February 15, 1989, made by the learned Additional Chief Judicial Magistrate, Dharwad, dismissing the Interlocutory Application filed by the petitioner herein under section 239 of the Code, seeking his discharge of the offences punishable under section 493 of the Penal Code and Section 4 of the Dowry Prohibition Act, 1961 (hereinafter referred to as 'the Act' for short), maintained and affirmed by the learned Principal Sessions Judge, Dharwad, by the order dated October, 27, 1989, in Criminal Revision Petition No. 219/89.
2. The learned counsel for the petitioner and the learned High Court Government Pleader for the Respondent-State are heard. The record in the petition and the record and proceedings in C.C. No. 474/86 on the file of the Additional Chief Judicial Magistrate, Dharwad, are perused and examined.
3. Before adverting to the two contentions raised by the learned counsel for the petitioner in support of the prayer made in the petition to quash the proceedings initiated and commenced against the petitioner in C.C. No. 474/86 in the Court of the Additional Chief Judicial Magistrate, Dharwad, it is necessary to state the facts leading to the prosecution of the petitioner. Shortly stated, the facts, as they appear from the record are these :
T. K. Narayanaswamy, the petitioner, is the accused in C.C. No. 474/86 pending trial in the Court of the Additional Chief Judicial Magistrate, Dharwad. The petitioner is an Assistant Professor of Sericulture, working in the University of Agricultural Sciences, GKVK Complex, Bangalore. During the year 1983, the petitioner then a bachelor was living in a room attached to the house of one Abbas Khan. situated at Hebbal. Jamuna is the daughter of the said Abbas Khan.
On 13-12-1985, Jamuna submitted a petition to the Director General of Police in Karnataka, Bangalore, alleging that the petitioner during his stay in the room belonging to her father, between 1981 and 1983, developed love towards her; that in the month of March, 1984, he was transferred to Dharwad; that he took her to Dharwad and there in a Temple presided over by Deity Anjaneya Swamy tied 'Mangalya' around her neck and gave an impression that he married her and lived with her as husband. She also alleged in the petition that the petitioner cohabitated with her making her to believe that she was lawfully, married to him and that in the month of January, 1985, the petitioner demanded a sum of Rs. 1,04,000/- as dowry from her.
The Director General of Police forwarded the petition to the Deputy Inspector General of Police, Belgaum, and the Deputy Inspector General of Police in turn sent the petition to the Superintendent of Police, Dharwad. The Superintendent of Police in turn forwarded it to the Deputy Superintendent of Police, Dharwad, for enquiry. The Deputy Superintendent of Police conducted inquiry into the petition, recorded the statements of Jamuna and other persons acquainted with the facts of the case and by the order dated 2-2-1986, directed the Sub-Inspector of Police, Sub-Urban Police Station, Dharwad, to take further action on the petition stating that the facts mentioned by Jamuna in her petition were true.
In obedience to the direction issued by the Deputy Superintendent of Police, the Sub-Inspector of Police recorded the complaint of Jamuna on 2-2-1986 at 21-45 hours registered a case in Crime No. 36/86 under S. 493 of the Indian Penal Code, issued F.I.R. and took up investigation.
4. On completion of investigation, the Sub-Inspector of Police laid charge-sheet against the petitioner for trial of the offences punishable under section 493 of the Indian Penal Code and Section 4 of the Act.
5. The Chief Judicial Magistrate, Dharwad, on 2-5-1986, registered the charge-sheet in Register No. III and made-over the case to the Additional Chief Judicial Magistrate, Dharwad. The Additional Chief Judicial Magistrate on the same day took cognizance of the offences alleged against the petitioner and directed summons making the same returnable by 23-6-1986.
6. The petitioner appeared. The Additional Chief Judicial Magistrate framed charges against the petitioner for the two offences, one under Section 493 of the Indian Penal Code, and another under section 4 of the Act. The petitioner pleaded not guilty to the charges framed and characterised the allegations as false.
7. On 23-7-1988, to which date the case had stood adjourned for evidence, the petitioner filed an application under section 239 of the Code, seeking his discharge of the offences charged against him, placing reliance on the decision of a learned single Judge of this Court in Nanjanna v. State of Karnataka, 1987 Cri LJ 1386 (Kant). The respondent State resisted the prayer made by the petitioner on the ground that there was a prima facie case made out against the petitioner for the offences and that the case was ready for evidence, charges against the petitioner having been framed.
8. The Additional Chief Judicial Magistrate took up the application for consideration. After hearing both the sides, placing dependence on the provisions contained in Section 468(3) of the Code, he held that the offences alleged against the petitioner were not barred by limitation. As regards the contention that the cognizance of the offences alleged against the petitioner, taken by him being investigated without the prior permission or order of the jurisdiction Magistrate under section 155(2) of the Code, was without jurisdiction, he held referring to the material on record and certain decisions that the contention was liable to be rejected. He, therefore, by the order dated February 15, 1989, rejected the application.
9. The petitioner, feeling dissatisfied with the order, went to the Court of Session at Dharwad with his Criminal Revision Petition No. 219/89. The Principal Sessions Judge, who heard and disposed of the Revision Petition, took the view that the bar enacted in Section 468 of the Code to take cognizance of the offences alleged against the petitioner did not operate and that the inquiry conducted by the Deputy Superintendent of Police, Dharwad, was not investigation within the meaning of the expression defined in Section 2(h) of the Code. He held that the order made by the Chief Judicial Magistrate was correct and proper calling for no interference. In the view he took, he dismissed the Revision Petition.
10. The petitioner wants this Court, in exercise of its inherent jurisdiction, to set aside the orders made by the trial Court and the Court of Revision and to quash the prosecution launched against him.
11. Sri G. K. Shevgoor, the learned counsel for the petitioner, urged two contentions in support of the prayer that the case calls for the exercise of inherent jurisdiction. He firstly contended that the offences alleged against the petitioner in respect of which charges have been framed against the petitioner being non-cognizable offences, the investigation done by the Deputy Superintendent of Police without obtaining the permission or order from the jurisdictional Magistrate as required by Section 155(2) of the Code, the charge-sheet laid on the basis of the said investigation unauthorised by law was illegal and that, therefore, the proceedings initiated and commenced against the petitioner by the Additional Chief Judicial Magistrate were without jurisdiction. He nextly contended that the offence alleged against the petitioner under section 4 of the Act by the time the complaint came to be lodged in respect of the said-offence having been barred by the law of imitation, the cognizance of the said offence taken by the Additional Chief Judicial Magistrate was illegal, being without jurisdiction.
12. As against this, the learned High Court Government Pleader for the respondent-State, submitted that the probe done by the Deputy Superintendent of Police into the petition presented by Jamuna to the Director General of Police in Karnataka, Bangalore, was not the investigation, but a preliminary enquiry to determine the truth or falsity of the allegations made in the petition; that the real investigation was done by the Sub-Inspector of Police after obtaining the necessary permission from the jurisdictional Magistrate and that, therefore, the first contention has to be negatived. As regards the second contention, he submitted that the offences alleged against the petitioner under section 493 of the Indian Penal Code and Section 4 of the Act are alleged to have been committed by him in the course of the same transaction and that, therefore, the joint trial of the said offences is permissible under the Code and that though the offence punishable under section 4 of the Act stood barred by 'the expiry of the period of limitation by the date of the complaint' in view of the provisions contained in Section 468(3) of the Code. The cognizance of the offences taken by the Additional Chief Judicial Magistrate on 2-5-86 was perfectly legal and valid. According to him, in view of the aforesaid facts, the second contention also needs to be negatived.
13. On the aforesaid contentions of the petitioner and the respondent, the points that arise for consideration and determination are these :
1. Whether the action taken by the Deputy Superintendent of Police, Dharwad, on the petition presented by Jamuna to the Director General of Police in Karnataka, Bangalore, was investigation within the meaning of the expression given in Section 2(h) of the Code
2. If so, what is the effect of such action on the cognizance of the offences taken by the Additional Chief Judicial Magistrate and the proceedings commenced against the petitioner on the basis of the charge-sheet filed by the Sub-Inspector of Police
3. Whether the provisions contained in Section 468(3) of the Code are attracted to the facts of the case
4. If so, whether the cognizance of the offence under section 4 of the Act taken by the Additional Chief Judicial Magistrate is within his jurisdiction
14. The expression 'investigation' has been defined in Section 2(h) of the Code as under :
'(h) 'investigation' includes all the proceedings under this Code for the collection of evidence conducted by a Police Officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;'
15. In H. N. Rishbad v. State of Delhi, : 1955CriLJ526 , it has been laid down on the meaning and the scheme of the Code with regard to investigation thus :
'Under the Code 'Investigation' consists generally of the following steps : (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge sheet under section 173. The scheme of the Code also shows that while it is permissible for an officer in charge of a police station to depute some subordinate officer to conduct some of these steps in the investigation, the responsibility for every one of these steps is that of the person in the situation of the officer in charge of the police station, it having been clearly provided in S. 168 that when a subordinate officer makes an investigation he should report the result to the officer in charge of the police station. It is also clear that the final step in the investigation, viz., the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in charge of the police station. There is no provision permitting delegation thereof but only a provision entitling superior officers to supervise or participate under S. 551.'
16. We have to determine as to whether the action taken by the Deputy Superintendent of Police, Dharwad, would amount to investigation applying the test laid down by the Supreme Court.
17. It appears clear from the record and the statement of the Deputy Superintendent of Police recorded by the Sub-Inspector of Police on 26-3-1986 that the Deputy Superintendent of Police received the petition given by Jamuna from the Superintendent of Police, Dharwad on 23-12-1985 for inquiry and necessary action; that the Deputy Superintendent of Police enquired into the petition and recorded the statements of some witnesses at Dharwad on 3-1-1986 and some witnesses at Bangalore on 28-1-86 and that as a result of the inquiry conducted by him, he reached the conclusion that the averments made by Jamuna in the petition were true. In view of his conclusion he directed the Sub-Inspector of Police to register the case and take further action. It appears to me, having regard to the circumstances in which Jamuna presented her petition to the Director General of Police in Karnataka, Bangalore, the action initiated on the petition by the Director General of Police, Bangalore, the Deputy Inspector General of Police, Belgaum, and the Superintendent of Police, Dharwad as that the petition was taken up for inquiry and that it was ultimately sent to the Deputy Superintendent of Police, Dharwad, for purposes of inquiry. There is no gain saying of the fact that the Deputy Superintendent of Police, Dharwad, without registering any case on the basis of the petition, proceeded to hold inquiry. Though the inquiry conducted by him would not fall within the scope and ambit of the expression 'inquiry' as defined in Section 2(g) of the Code, the fact remains that it was an inquiry. Such an inquiry as is shown to have been done by the Deputy Superintendent of Police is not unknown to criminal jurisprudence : In P. Sirajuddin v. State of Madras, : 1971CriLJ523 , in a case relating to a public servant charged for serious misdemeanour amounting to the offence of criminal misconduct punishable under the provisions of the Prevention of Corruption Act, 1947, there was a preliminary enquiry before lodging the First Information Report. The Supreme Court approved the action and observed :
'17. ............................................................... Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general. If the Government had set up a Vigilance and Anti-Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department .......................................
18. The preliminary inquiry of the kind done in the instant case is not forbidden by law. Added to that, Jamuna alleged the serious offences against the petitioner working as Assistant Professor of Sericulture in the University of Agricultural Sciences. In view of the seriousness of the allegations made against the petitioner, the status and position held by him, if the Director General of Police and his subordinates thought of holding a preliminary inquiry into the petition before taking any legal action against the petitioner to determine the truthfulness or otherwise of the allegations in the petition, no exception could be taken to it.
19. Added to that, it is clear from the record that on the direction issued by the Deputy Superintendent of Police on 2-21986, the Sub-Inspector of Police of the jurisdictional Police Station secured Jamuna, took her statement in the form of complaint and on the basis of the said complaint, registered a case against the petitioner under Section 493 of the Indian Penal Code and issued F.I.R. A perusal of the record and proceedings of the trial Court would indicate that after obtaining necessary permission from the jurisdictional Magistrate on 3-2-1986, the Sub-Inspector of Police conducted investigation into the complaint by recording the statements of the witnesses acquainted with the facts of the case and collected evidence.
20. On being specifically questioned, the learned High Court Government Pleader made a statement before this Court that the Sub-Inspector of Police while forming the opinion that the petitioner was required to be forwarded with the final report for the trial of the offences under section 493 of the Indian Penal Code and Section 4 of the Act, he took into consideration the evidence collected by him and was not in any manner influenced by the material that emerged from the statements of the witnesses recorded by the Deputy Superintendent of Police, Dharwad.
21. In view of the aforesaid facts and for the reasons staled earlier, I find it difficult to agree with the learned counsel far the petitioner that the inquiry made into the petition by the Deputy Superintendent of Police was investigation within the meaning of Section 2(h) of the Code and that forward of the petitioner to the trial Court for the trial of the offences was the result of the inquiry conducted by the Deputy Superintendent of Police.
22. Indeed, it is true, investigation can be done under the Code without formally registering a case. Registration of a case in the jurisdictional Police Station is not a condition precedent for embarking on the investigation. In Maha Singh v. State (Delhi Administration), : 1976CriLJ346 , on a complaint made to the Inspector of Anti-Corruption Department, the Inspector had recorded the same and had arranged the raid by noting each step taken thereafter in a regular manner, he had himself examined the witnesses under Section 161 of the Code of Criminal Procedure, 1898 and had completed the investigation. He had later on forwarded the complaint for formal registration of the case at the Police Station. Dealing with the question as to whether the steps taken by the Inspector were 'investigation' within Section 4(1) of the Code of Criminal Procedure, 1898, the Supreme Court held that what was done by the Inspector in order to detect the accused while taking the bribe came within the term 'investigation' under section 4(1) of the Code of Criminal Procedure, 1898 and the fact that he had also later on forwarded the complaint for formal registration of the case at the Police Station did not do away with the character of the investigation already commenced by the Inspector on recording the complainant's statement disclosing a cognisable offence. On the basis of the aforesaid view, the Supreme Court held that any statement made by the accused in answer to question put by the Inspector was inadmissible under Section 162 and neither the prosecution nor the accused could take advantage of those answers.
23. In the present case, in view of my conclusion that the inquiry done by the Deputy Superintendent of Police cannot be held to be investigation within the meaning of the expression in Section 2(h) of the Code, the application of the principles enunciated by the Supreme Court in the case of Maha Singh, (supra), does not arise.
24. It is clear from the material on record that on the basis of the statement made by Jamuna, the Sub-Inspector of Police registered a case, issued F.I.R. and applied to the jurisdictional Magistrate seeking permission to investigate into the offences, by a petition dated 2-2-1986. It is clear from the order made by the jurisdictional Magistrate on the margin of the petition that the permission sought for was granted by him on 2-2-1986 itself. It was only thereafter that the Sub-Inspector of Police proceeded with the investigation. Therefore, in view of the aforesaid clear facts emerging from the record, the application of the well settled principle that any investigation by a Police Officer under section 155(2) of the Code into a non-cognizable offence without the requisite permission or order of the Magistrate would be one with out jurisdiction, does not arise.
25. Even assuming for the sake of argument, without so deciding, that the inquiry done by the Deputy Superintendent of Police into the petition comes within the definition of the expression 'investigation', in my considered view, that would be having no bearing on competence or procedure relating to cognizance or trial. It is well settled in view of the decision of the Supreme Court in the case of H. N. Rishbad, (1955 Cri LJ 526) (supra), that a defect or illegality in investigation, however serious, has no direct bearing on the competence or procedure relating to cognizance or trial. In Kumar v. State of Karnataka, ILR (1985) Kant 1450, the charge-sheet filed against the petitioner therein for an offence under section 32 of the Karnataka Excise Act (a summons case) beyond six months from the date of the arrest of the petitioner contrary to the mandatory provisions of Section 167(5) of the Cede. The Magistrate had taken cognizance of the offence and had issued process. Dealing with the contention that the cognizance taken by the Magistrate was bad in law and the subsequent proceeding was without jurisdiction, a learned single Judge of this Court held that the bar under Section 167(5) of the Code was for the investigation and not for the Court taking cognizance of the offence and that, therefore, at best it can be said that the filing of the charge-sheet by the Investigating Officer beyond the period of six months from the date of the arrest of the petitioner therein was illegal and the evidence collected by the Investigating Officer after the period of six months had to be excluded from consideration. The learned single Judge in the said case, in the view he took, differed from the view taken by the High Court of Judicature at Calcutta in Jay Sankar Jha v. State, 1982 Cri LJ 744, the decision on which considerable dependence was placed by Sri G. K. Shevgoor in the present case.
26. To sum up, all that can be said in favour of the petitioner, even taking a charitable view of his contention that the inquiry done by the Deputy Superintendent of Police was investigation under the Code is that he would be within his right to ask the Additional Chief Judicial Magistrate, Dharwad, not to admit the material collected by the Deputy Superintendent of Police, Dharwad if it were to come in the form of legal evidence on the ground of its inadmissibility.
27. Subject to the above observations, I (hold that the inquiry done by the Deputy Superintendent of Police, Dharwad, into the petition presented by Jamuna was a preliminary inquiry and not an investigation coming within the definition of the expression investigation' given in Section 2(h) of the Code.
28. I record my finding accordingly on Point No. 1.
29. In view of my finding on Point No. 1, I hold that the inquiry done by the Deputy Superintendent of Police, Dharwad, has no effect whatsoever on the cognizance of the offences alleged against the petitioner, taken by the Additional Chief Judicial Magistrate, Dharwad, and the initiation and commencement of the proceedings on the basis of the charge-sheet filed by the Sub-Inspector of Police. I may add that the cognizance of the offences taken by the Additional Chief Judicial Magistrate and the initiation and commencement of the proceedings by him against the petitioner were on a validly instituted final report on the basis of the collection of evidence during the course of investigation conducted and carried on in accordance with law. My finding on Point No. 2 is, therefore, as indicated above.
30. The petitioner has been accused of having committed the offence under Section 493 of the Penal Code and the offence under section 4 of the Act, as it stood prior to its substitution by Act 63 of 1984 which came into force with effect from 2-10-1985.
31. The offence under section 493 of the Indian Penal Code under the First Schedule to the Code is a non-cognizable offence. The punishment prescribed for the said offence is imprisonment of either description for a term which may extend to ten years and fine. Having regard to the quantum of punishment prescribed for the said offence, the offence would be a warrant case within the meaning of the expression given in Section 2(x) of the Code. In view of the punishment, provided for the offence the provisions contained in Section 468 of the Code appearing in Chapter XXXVI under the heading 'Limitation for taking cognizance of certain offences' are not attracted.
32. Section 4 of the Act, as it stood prior to its substitution with effect from 2-10-1985, reads as under :
'4. Penalty for demanding dowry.- If any person, after the commencement of this Act, demands, directly or indirectly, from the parents or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment which may extend to six months, or with fine which may extend to five thousand rupees, or with both :
Provided that no Court shall take cognizance of any offence under this section except with the previous sanction of the State Government or of such officer as the State Government may, by general or special order, specify in this behalf.'
33. It is the provisions of this section that we are concerned with.
34. There is no dispute that by virtue of the provisions contained in Section 4(2) of the code the offences under the Act have to be investigated, inquired into, tried, and other wise dealt with according to the provisions contained in the code, but subject to the provisions in the Act for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with the offences under the Act.
35. Section 7, another provision of the Act, with which we are concerned, as it stood prior to its substitution by Section 6 of Act 63 of 1984 with effect from 2-10-1985, reads as under :
'7. Cognizance of offences.- Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898),
(a) no Court inferior to that of a presidency magistrate or a magistrate of the first class shall try any offence under this Act;
(b) no Court shall take cognizance of any such offence except on a complaint made within one Year from the date of the offence;
(c) it shall be lawful for a presidency magistrate or a magistrate of the first class to pass any sentence authorised by this Act on any person convicted of an offence under this Act.
36. Under Section 8, as it stood prior to 2-10-85 on which date it was substituted, every offence under the Act was non-cognizable, bailable and non-compoundable. By Act 63 of 1984, the section was substituted, making the provisions of the Code applicable to the offences under the Act as if they were cognizable offences for the purposes of investigation of the offences and for the purpose of matters other than matters referred to in Section 42 of the Code and the arrest of a person without a warrant or without an order of the Magistrate.
37. In the present case, the offence alleged against the petitioner under Section 4 of the Act took-place in the month of January 1985. The complaint should have been filed within one year from the date of the offence to invest the jurisdictional Magistrate with the jurisdiction to take cognizance of the offence and to try It. Under Section 7(b) of the Act, extracted earlier, there was a total and blanket prohibition against the Court from taking cognizance of any offence except on a complaint made within one year from the date of the offence. There is no denial of the fact that the charge-sheet was filed against the petitioner in the Court on 2-5-1956. As on 2-5-1986, the offence under section 4 of the Act alleged against the petitioner having stood barred by time, a right which had accrued to the petitioner from being prosecuted by virtue of lapse of time of limitation prescribed for lodging the complaint could not have been Interfered with by the Additional Chief Judicial Magistrate by taking cognizance
38. It is by now well settled that rules of limitation are prima facie rules of procedure and operate retrospectively. They do not create any right in favour of any person nor do they define or create causes of action, but simply prescribe that the remedy would be exercised only up to a certain period and not subsequently.
39. In Nani Gopal Mitra v. State of Bihar. : 1970CriLJ1396 , the Supreme Court held that as a general rule, alterations in the form of procedure are retrospective in character unless there Is some good reason or other why they should not be. Quoting with approval the decisions in James Gardner v. Edward A. Lucas, (1878) 3 AC 582, and in King v. Chandra Dharma, (1905) 2 KB 335, the Supreme Court said :
'... It is therefore clear that as a general rule the amended law relating to procedure operates retrospectively. But there is another equally important principle, viz., that a statute should not be so construed as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the amending Act came into force (see In re a Debtor, 1936 Ch 237 and In re Vernazza, 1960 AC 965) .......'
40. The decision lays down that the principle stated In re a Debtor. 1936 Ch 237 and In re Vernazza, 1960 AC 965 is embodied in Section 6 of the General Clauses Act and that the effect of the application of the principle is that pending cases although instituted under the old Act, but still pending, are governed by the new procedure under the amended law. But whatever procedure was correctly adopted and concluded under the old law cannot be opened again for the purpose of applying the new procedure. The Supreme Court ruled that this principle is an equally Important principle which constitutes an exception to the general rule.
41. Since the complaint lodged against the petitioner in respect of the offence under section 4(1) of the Act (though there was in fact no complaint before the Additional Chief Judicial Magistrate on 2-5-1986, but only a final report in view of the explanation to Section 2(d) of the Code, the final report has to be deemed to be complaint disclosing the commission of the offence punishable under section 4 of the Act) was admittedly beyond the period of limitation, in my considered opinion, it cannot stand revived by substitution of Section 7 with effect from 2-10-1985 deleting the period of limitation altogether from the section. The substitution of Section 7 from 2-10-1985 could have saved the prosecution only if the right to prosecute was alive as on 2-10-1985 when the section was substituted. That is so by virtue of Section 6(a) of the General Clauses Act, 1897 which is as follows :
'6. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
.......................................'
42. It is almost well settled that an Amended Act taking away the period of limitation cannot and will not revive the right that had already become extinct by limitation.
43. The intention of the law of limitation is not to give a right where there is none but to impose a ban after a certain period in the enforcement of the existing right. Though the law of limitation is a law of procedure and as such is of retrospective operation, if under an existing law of limitation the right has become time barred, that right cannot revive under a subsequent legislation as to limitation unless there Is express provision to that effect. In view of the aforesaid facts and reasons, I hold that the prosecution cannot derive any benefit from Section 7 as substituted with effect from 2-10-1985 taking away the limitation.
44. The question would be, whether the right accrued to the petitioner in respect of the offence under section 4 of the Act alleged against him by virtue of the expiry of the period of limitation prescribed for preferring a complaint would not be available to him in view of the provisions contained in Section 465(3) of the Code.
45. Before considering the said question, it is necessary to examine as to what extent the provisions in the Code stood excluded by virtue of the non obstante clause in Section 7 of the Act as it stood prior to 2-10-1985.
46. In my View, the effect of the non obstante clause in Section 7 of the Act referring to the Code cannot exclude the entire Code from the purview of the Section. The exclusion, relevant and material for the case on hand as is clear from the language employed in the section, is limited to the actual period of limitation prescribed under section 7(b) of the Act. The effect of a non-obstante clause in a legislation is to empower that legislation to prevail over the provisions in any other legislation which are contrary to of inconsistent with it. In the case of conflict, the legislation having non-obstante clause would prevail. In the present case, Section 7 of the Act as it stood prior to 2-10-1985, prescribed one year as the period of limitation for launching prosecution. If in the Code a different period of limitation has been prescribed for prosecution of offences under the Act depending upon the punishment awarded for such offence, then by virtue of the non obstante clause in Section 7, the period of limitation provided under the Act would prevail over the period of limitation prescribed under the Code. It is only in this area and this area alone that the non-obstante clause would really come into operation. In matters where there does not exist any conflict or where the special law is silent, the general law relating to procedure would apply. That is so by virtue of Section 4(2) of the Code to which I have made a reference in the earlier paragraph. In union of India v. I. C. Lala, 1973 Cri LJ 1190, the Supreme Court held that the non-obstante clause in Section 5A(1) of the Prevention of Corruption Act, 1947 merely carved out a limited exemption from the provisions of the Code in so far as they limited to the class of persons who were competent to investigate into offences mentioned in the section and to arrest without a warrant and that it did not make the rest of the Code including Schedule II inapplicable.
47. If we analyse the provisions of Section 7 in the light of the principles stated by the Supreme Court in the case of I. C. Lala, it Would be clear that in only three specified areas Section 7 of the Act excludes the Code. Section 7(a) prohibits any Magistrate below the rank of a Presidency Magistrate or Magistrate of the First Class to try any offence under the Act. While Section 7(b) refers to limitation, whereas Section 7(c) makes it possible for the Presidency Magistrates or Magistrates of the First Class to pass any sentence authorised by the Act on any person convicted thereunder. The corresponding provisions relating to these three areas will, by virtue of the non-obstante clause in Section 7, yield to the provisions of the Act. These are the areas in which what the Act provides deserve consideration and attention. In other areas where there is no conflict or where the Act is silent, the Code would apply.
48. Section 468(3) of the Code provides :
'(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.'
49. This section was added by the Code of Criminal Procedure Amendment Act, 1978. It provides for limitation in relation to offences which may be tried together.
50-51. Having regard to the facts of the case, there can be no doubt that the offences under section 493 of the Penal Code and Section 4 of the Act alleged against the petitioner may be tried together. If it is to be held that Section 468(3) is attracted to the facts of the present case, the period of limitation, in relation to offence under Section 4 of the Act, has to be determined with reference to the offence under section 493 of the Indian Penal Code which is punishable with more severe punishment and for which the provisions contained in Section 468 are not attracted. If it is held that the provisions contained in Section 468(3) of the Code are attracted, it will have to be conclude that though by 2-5-1986, the right to prosecute the petitioner under section 4(1) of the Act had stood extinct with the corresponding accrual of right by the petitioner from the fear and peril of the prosecution, the action taken by the Additional Chief Judicial Magistrate was legal. If that were to be the view, then the cognizance of the offence under section 4(1) of the Act alleged against the petitioner taken on 2-5-1986 would be within the jurisdiction.
52. But the question is whether Section 468(3) of the Code would be attracted to the case of the petitioner in so far as it relates to the offence under section 4(1) of the Act. The punishment provided for the offence under section 4(1) of the Act is imprisonment which may extend to six months or fine which may extend to five hundred rupees or both. The limitation prescribed by Section 7(b) of the Act as it stood prior to its substitution by Section 6 of Act 63 of 1984 with effect from 2-10-1985 was one year from the date of the offence. Under Section 468(2) of the Code, the limitation would be one year. Since the Act prescribed its own limitation, it being a special Act, the provisions of Section 468(2) would not apply.
53. Thus, it can be said that in the case so far as it relates to the offence under section 4(1) of the Act, the provisions contained in Sections 468(1) and 468(2) of the Code would not be attracted.
54. Section 468(3) of the Code open with the words 'for the purposes of this section' Since Sections 468(1) and 468(2) of the Code are not attracted, in my considered view, the respondent-State cannot take the aid of Section 468(3) to contend that the cognizance of the offence under S. 4(1) of the Act alleged against the petitioner taken on 2-5-1986 would be within the jurisdiction.
55. In view of the aforesaid reasons, I hold that the provisions contained in Section 468(3) of the Code are not attracted to the case of the petitioner in so far as it relates to the offence under section 4(1) of the Act. I accordingly record my finding on Point No. 3.
56. In view of my finding on Point No. 3, I hold that cognizance of the offence under section 4(1) of the Act alleged against the petitioner taken on 2-5-1986 admittedly beyond the period of limitation prescribed in section 7(b) of-the Act is with out jurisdiction. Both the learned trial Magistrate and the learned Principal Sessions Judge have negatived the plea of limitation raised by the petitioner with regard to the offence under section 4(1) of the Act on the assumption that the provisions of Section 468(3) of the Code are attracted. The findings, for the reasons stated above, cannot be upheld. I, therefore, hold that the cognizance of the offence under Section 4(1) of the Act taken by the Additional Chief Judicial Magistrate is with jurisdiction.
57. The learned counsel for the petitioner submitted, inviting my attention to the contents of the petition filed by Jamuna under Section 9 of the Hindu Marriage Act, the copy of which the petitioner has produced, (the sentence begins with illegible words) would be sufficient to hold that the offence under section 493 of the Penal Code is made out even prima facie.
58. The fact that Jamuna subsequent to her petition and complaint has filed a petition under section 9 of the Hindu Marriage Act, 1955 in M.C. No. 73/88 in the Family Court at Bangalore claiming the status of legally wedded wife of the petitioner cannot ipse dixit be sufficient to hold that the offence under section 493 of the Indian Penal Code is not made out even prima facie and on that basis no relief as prayed for by the petitioner can be granted. What would be the effect of such a move on the part of Jamuna would be a matter falling for consideration by the trial Court at the time of adjudging guilt or otherwise of the petitioner.
59. In the result, for the reasons aforesaid, I proceed to pass the following order :
The petition is dismissed in part. The action of the learned Additional Chief Judicial Magistrate in taking cognizance of the offence under section 493 of the Penal Code and initiating and commencing the proceedings against the petitioner for the said offence is left untouched and undisturbed. The trial of the said offence shall proceed in accordance with law. The petition is allowed in respect of the action taken by the Additional Chief Judicial Magistrate taking cognizance of the offence under section 4(1) of the Act against the petitioner and initiating and commencing proceedings for the said offence. The said action is hereby quashed. Consequently the prosecution launched against the petitioner for the offence under section 4(1) of the Act is quashed. The petition in terms stated above is disposed of.
60. Order accordingly.