Deena Vs. State of Karnataka - Court Judgment

Excerpt:
criminal procedure code, 1973 (central act no. 2 of 1974 - section 468(2)(c) -- charge sheet filed beyond three years from date of offence -- prosecution barred -- in the absence of necessary material cannot be said that accused was absconding.;in this case, the date of offence was 17-8-1979 and the charge-sheet was filed on 14-3-1983 i e. beyond the period of limitation prescribed under section 468(2)(c) of the code. when the charge-sheet was prima facie barred by time, it was incumbent on the prosecution to file an application for condonation of delay stating the grounds for such condonation. no such endorsement is made on the charge sheet. it is not even alleged in the charge-sheet that the accused was absconding till 20-10-1982. the learned magistrate was not justified in presuming that the accused was avoiding arrest till 20-10-1982 because he was arrested on that day. - sections 8 & 14: [k.n. keshavanarayana, j] suit for partition - one s died intestate leaving behind him his wife and five sons - he had got the suit schedule property as his share in a partition between him and his brothers - wife (widow) made a will in respect of entire property in favour of great grandson, as an absolute owner - she died pending suit for partition -trial court held the property was separate property of s and on his death his wife became the absolute owner and that the will executed in favour of d-5 (great grandson) is valid and dismissed the suit - first appellate court reversed the finding of the trial court and held that all the five sons are entitled to 1/5 share each and that deceased d-1 (widow) was not the absolute owner - second appeal held, since the plaint schedule properties were the separate and exclusive properties of deceased s upon, his intestate death, his properties are inherited by all his class-i heirs as per section 8 of the hindu succession act. even if the original defendant no.1 has enjoyed the plaint schedule properties along with her husband after the partition, she did not acquire any exclusive right over the properties. at best she was entitled to enjoy the same till her lifetime. to a case of this nature, as rightly held by the lower appellate court, section 14 of the hindu succession act has no application. no doubt, as per sub-section (1) of section 14 of the hindu succession act, any property possessed by a female hindu, acquired either before or after commencement of the act, should be held by her as full owner thereof and not as a limited owner, explanation to sub-section explains the term property. according to this section, property includes moveable and immovable properties acquired by a female hindu by inheritance, or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person. whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as streedhana immediately before the commencement of this act. as noticed above, the plaint schedule properties were not inherited by defendant no. 1 nor it was transferred to her by any modes known to law. admittedly, it was allotted to the share of her husband at a partition and her husband died intestate. soon after the death of her husband, the estate left behind by him will have to be shared equally by his class-i heirs as directed by section 8. therefore, the trial court is in error in applying the provisions of section 14 of the hindu succession act to the present case. under these circumstances, the lower appellate court is justified in reversing the judgment of the trial court in this regard. merely because the 5th defendant (great grant son) has successfully established the execution and attestation of the will, it does not ipso-facto establish that he was succeeded to all the properties. the testatrix should have right over the properties bequeathed so that the beneficiary under the will succeeds to the properties. having regard to the fact that the original defendant no.1was not the absolute owner of the properties mentioned under the will, she could not have bequeathed the entire extent of the properties in favour of the 5th defendant under the will. there is no dispute that upon the death of s, defendant no.1 being the widow was entitled to succeed to the properties of her husband along with her sons and daughter. therefore, she succeeded to 1/6th share in the properties left behind by her husband. the question is as to whether she could bequeath her undivided 1/6th share in the plaint schedule properties under a will? section 30 of the hindu succession act, no doubt, empowers an hindu to dispose of the properties by will or other testamentary disposition of any property, which is capable of being so disposed of by him or by her in accordance with the provisions of the indian succession act, 1925. explanation to section 30 explains as to what is the interest of a hindu which can be disposed of by will or other testamentary disposition. according to this explanation, only the interest of a hindu in a mitakshara co-parenary property which can be disposed of by him or her by way of will or other testamentary dispositions. in the case on hand, in the case on hand, it is clear that the plaint schedule properties were not mitakshara coparcenary properties, as according to the contentions of the contesting parities, the plaint schedule properties were the exclusive and separate properties of s having been allotted to him towards his share, under the partition. therefore, section 30 of the hindu succession act has no application to the facts of the case. upon the death of s, original defendant no.1 became entitled to 1/6th share in the plaint schedule properties and each of her children were entitled to similar shares. thus, she became the co-owner along with her children in respect of the plaint schedule properties. her share was definite and only the division by meets and bounds had been postponed. under these circumstances, the submission of the learned counsel for the appellant that the original defendant no.1 could dispose of her undivided 1/6th share in plaint schedule properties by way of a will as provided in section 59 of the indian succession act has great force and deserves to be accepted. therefore, there is no difficulty in holding that the 1st defendant had right to dispose of her undivided 1/6th share in the plaint schedule properties by way of a will. the will of d-1 to the extent of 1/6th share is valid and the four sons and lrs of one son who was deceased will get 1/6th share each. as regards the alienation made by one of the son (plaintiff-4) while effecting partition by metes and bounds to the extent possible the share of plaintiff-4 to be identified in item-b (which he has sold). indian succession act (39 of 1925), section 59:will a testator who is having an undivided interest can dispose of her share by way of a will. section 30 of hindu succession act has no application. section 63: will interpretation testatrix claiming to be the absolute owner of entire property bequeathing in favour of her great grandson finding of the court that she is entitled to 1/6th share held, the will is valid to the extent of her 1/6th share. orderdesai, j.1. the petitioner is the accused in c. c. no. 513/83 on the file of the metropolitan magistrate, vth court, bangalore, one sri. b.n. prabhakar rao, a police constable no. 2898 attached to ulsoor police station who is the neighbour of the accused filed a complaint in the ulsoor police station on 17-8-79 alleging that on that day at 1.55 p.m. while he was, proceeding to bis house, the accused wrongfully restrained him and assaulted him with chappals and thereby committed offences punishable under sections 341 and 355 ipc. after completing the investigation, the charge-sheet was filed in the court-below against the accused on 14-3-1983 ie., after more than 3 1/2 years from the date of offence.2. according to section 468(2)(c) of the code of criminal procedure, 1973, (hereinafter referred to as the 'code') the charge-sheet ought to have been filed within three years from the date of offence as the offence under section 355 ipc is punishable with imprisonment for two years or with fine, or with both. therefore, the counsel for the accused contended that the prosecution was barred by section 468(2)(c) of the code.3. the learned magistrate, after hearing both sides, held that as the accused was arrested on 20-10-1982 he must be absconding till then and so the period from the date of offence till that date has to be excluded in computing the period of limitation according to section 470(4)(b) of the code and hence, the charge-sheet filed was in time. hence, this petition by the accused.4. in considering the scope and object of section 468 of the code, in state of punjab v. sarwan singh, 1981 crl. l.j 722 the supreme court was pleased to observe thus :'the object of criminal procedure code in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the court by filing vexatious and belated prosecutions long after the date of the offence. the object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in article 21 of the constitution. it is therefore, of the utmost importance that any prosecution, whether by the state or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation....'5. in this case, the date of offence was 17-8-79 and the charge-sheet was filed on 14-3-83 ie., beyond the period of limitation prescribed under section 468(2)(c) of the code. when the charge-sheet was prima facie barred by lime, it was incumbent on the prosecution to file an application for condonation of delay stating the grounds for such condonation. no such endorsement is made on the charge-sheet. it is not even alleged in the charge-sheet that the accused was absconding till 20-10-82. no affidavit of the investigating officer was also filed to that effect as can be seen from the records. even the case diary maintained by the investigating officer was not produced before the trial court to convince the court that the accused was absconding. under the circumstances, it cannot be said that the accused was absconding because the possibility of the investigating officer making up his mind to arrest the accused on 20-10-82 itself cannot be ruled out. therefore, the learned magistrate was not justified in presuming that the accused was avoiding arrest till 20-10 1982 merely because he was arrested on that day. as the charge-sheet has been filed beyond the period of limitation prescribed under section 468(2)(c) of the code, the learned magistrate ought not to have taken cognizance of the offences. hence, i think it proper to quash the proceedings against the petitioner in the court-below.6. in the result, the petition is allowed and the proceedings against the petitioner in c. c. no, 513/83 pending on the file of the metropolitan magistrate, vth court, bangalore, are hereby quashed.

Judgment:
ORDER

Desai, J.

1. The petitioner is the accused in C. C. No. 513/83 on the file of the Metropolitan Magistrate, Vth Court, Bangalore, One Sri. B.N. Prabhakar Rao, a police constable No. 2898 attached to Ulsoor police station who is the neighbour of the accused filed a complaint in the Ulsoor police station on 17-8-79 alleging that on that day at 1.55 p.m. while he was, proceeding to bis house, the accused wrongfully restrained him and assaulted him with chappals and thereby committed offences punishable under Sections 341 and 355 IPC. After completing the investigation, the charge-sheet was filed in the Court-below against the accused on 14-3-1983 ie., after more than 3 1/2 years from the date of offence.

2. According to Section 468(2)(c) of the Code of Criminal Procedure, 1973, (hereinafter referred to as the 'Code') the charge-sheet ought to have been filed within three years from the date of offence as the offence under Section 355 IPC is punishable with imprisonment for two years or with fine, or with both. Therefore, the Counsel for the accused contended that the prosecution was barred by Section 468(2)(c) of the Code.

3. The learned Magistrate, after hearing both sides, held that as the accused was arrested on 20-10-1982 he must be absconding till then and so the period from the date of offence till that date has to be excluded in computing the period of limitation according to Section 470(4)(b) of the Code and hence, the charge-sheet filed was in time. Hence, this Petition by the accused.

4. In considering the scope and object of Section 468 of the Code, in State of Punjab v. Sarwan Singh, 1981 Crl. L.J 722 the Supreme Court was pleased to observe thus :

'The object of Criminal Procedure Code in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the Court by filing vexatious and belated prosecutions long after the date of the offence. The object which the statute seeks to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution. It is therefore, of the utmost importance that any prosecution, whether by the State or a private complainant must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation....'

5. In this case, the date of offence was 17-8-79 and the charge-sheet was filed on 14-3-83 ie., beyond the period of limitation prescribed under Section 468(2)(c) of the Code. When the charge-sheet was prima facie barred by lime, it was incumbent on the prosecution to file an application for condonation of delay stating the grounds for such condonation. No such endorsement is made on the charge-sheet. It is not even alleged in the charge-sheet that the accused was absconding till 20-10-82. No affidavit of the Investigating Officer was also filed to that effect as can be seen from the records. Even the case diary maintained by the Investigating Officer was not produced before the Trial Court to convince the Court that the accused was absconding. Under the circumstances, it cannot be said that the accused was absconding because the possibility of the Investigating Officer making up his mind to arrest the accused on 20-10-82 itself cannot be ruled out. Therefore, the learned Magistrate was not justified in presuming that the accused was avoiding arrest till 20-10 1982 merely because he was arrested on that day. As the charge-sheet has been filed beyond the period of limitation prescribed under Section 468(2)(c) of the Code, the learned Magistrate ought not to have taken cognizance of the offences. Hence, I think it proper to quash the proceedings against the petitioner in the Court-below.

6. In the result, the Petition is allowed and the proceedings against the petitioner in C. C. No, 513/83 pending on the file of the Metropolitan Magistrate, Vth Court, Bangalore, are hereby quashed.