Court: Jammu & Kashmir High Court
Bench: JUSTICE B Bhat
Jagjit Singh And Anr. vs Ravinder Kour on 1 May 2003
Complaint Against the Petitioner and Taking of Cognizance by the Learned Magistrate under Section 406 RPC and Issuance of Process Being Time-barred by Law, are Quashed because the Continuance of the Proceedings against the Petitioners in the case will Amount to Abuse of Process of law. Therefore, taking of Cognizance Against the Petitioners and Issuance of Process Against them by the Learned Magistrate, are Hereby Quashed.
1. Petitioner Jagjit Singh and his wife namely Ravinder Kour who figure as accused in criminal complaint titled as Ravinder Kour v. Charanjit Singh and Ors. File No. 29 pending decision before the learned Sub-Judge, Jammu have through the medium of this petition under Section 561-A Cr. PC sought indulgence of this Court for quashing the order of cognizance taken by the learned Magistrate for offence under Section 406 I.PC and for issuance of process against them.
2. It appears that the respondent came to institute complaint for offence under Sections 405, 406 and 409 RPC before the court of learned Chief Judicial Magistrate, Jammu, who in turn came to transfer this case to the learned Sub-Judge, Judicial Magistrate 1st Class, Jammu.
3. It is inter alia maintained in this complaint that respondent/complainant and the accused came to be married on 12.11.1995 and their marriage was solemnized at Nanak Nagar, Jammu according to the Sikh rites and ceremonies. After the marriage, the respondent-accused-1, took that the complainant to her matrimonial house. That at the time of marriage, the respondent/complainant received items of dowry from her parents and other relations as detailed in the list enclosed with the petition. The items of dowry are shown as Fridge, T.V., Almirah, Washing Machine, Tape Recorder, Ceiling Fan, Kitchenwares, Furniture items, Bedding items and Wrist Watch etc. After marriage, the respondent/accused did not treat her well and demanded more dowry items from her and turned her out from his house, then on the intervention of Bradari in the year 1996, she was sent back to her matrimonial house but the attitude of the accused did not change. The accused repeated his old demand of more dowry and finally turned her out after retaining her items of dowry received by her in marriage. The learned Magistrate after examining the petitioner and the witnesses under Section 200 Cr. PC took cognizance of the offence under Section 406 RPC and issued process against the petitioner-accused-1.
4. Heard learned counsel for the parties and have also gone through the record of the case.
5. A similar question fell for consideration before the Full Bench of the Punjab and Haryana High Court in case titled as Vinod Kumar Sethi and Ors. v. State of Punjab and Anr., AIR 1982 P&H 372 wherein their Lordhips have:
“The concept of the matrimonial home connotes a jointness of possession and custody by the spouses even with regard to the moveable properties exclusively owned by each of them. It is, therefore, inapt to view the same in view of the conjugal relationship as involving any entrustment or passing of dominion over property day to day by the husband to the wife or vice versa. Consequently, barring a special written agreement to the contrary, no question of any entrustment or dominion over property would normally arise during coverture or its imminent break-up. Therefore, the very essential prerequisites and the care ingredients of the offence under Section 406 would be lacking in a charge of criminal breach of trust of property by one spouse against the other. Inevitably therefore, the purported allegations of breach of trust between husband and wife so long as the conjugal relationship lasts and the matrimonial home subsists, cannot constitute an offence under Section 406 subject to any special written agreement. Equally, as against the close relationship of the husband, no facile presumption of entrustment and dominion over the dowry can be raised prima facie and this inevitably has to be by subsequent conscious act of volition which must be specifically alleged and conclusively established by proof.”
6. Having regard to this ratio of the Full Bench of the Punjab and Haryana High Court in the authority supra prima facie entrustment and dominion of the dowry cannot be raised against the petitioner being brother and sister-in-law of the accused-1 to whom the respondent was married and the dowry items were given by her parents and other relations to her at the time of her marriage with accused-1. This takes me to the other aspect of the case i.e. limitation for taking cognizance of certain offences. Chapter XLV-A Cr. PC deals with limitation for taking cognizance of certain offences (Cr. PC 1989-1933 AD), Section 538A defines period of limitation, which means the period specified under Section 538-B Sub-section (2) prescribes period of limitation and Sub-section (1) to this section provides that court shall take cognizance of the offence after the expiry of period of limitation. The period of limitation is prescribed with reference to the punishment prescribed for a particular offence. If the offence is punishable with fine, the period of limitation shall be six months; if the offence is punishable with imprisonment for a period not exceeding one year, period of limitation shall be one year and if the offence is punishable with imprisonment exceeding one year, but not exceeding three years, period of limitation shall be three years. No period of limitation is prescribed for offence punishable with imprisonment exceeding three years. Section 538-C lays down that when the period of limitation commence, it provides that period of limitation shall commence on the date when the offence is committed but if commission of the offence was not known to the person aggrieved by the offence or to any police officer or identity of the person is not known either to the person aggrieved or to the police, period of limitation is commenced in the former case on the date of commission of offence comes to the knowledge of such person or to police officer, whichever is earlier and in the later case, period of limitation shall commence from the date identity of the person is known to the person aggrieved or the police, whichever is earlier. Section 538-D Cr. PC deals with extension of time in certain cases in calculating the period of limitation that to say the time during which any person has been prosecuting in due diligence of prosecution the time during which the proceedings were stayed by injunction or order the period of notice be given or time required for obtaining sanction for prosecution; the period during which the offender has been absented from India or from any territory outside India which is under the administration of Central Government or has avoided arrest by absconding or concealing himself. Section 538-E lays down that if the day of limitation under Section 538-B Sub-section (2), happens to be closed, the court may take cognizance of the next opening day. Section 538-F Cr. PC provides that in case of continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues. Section 538-G deals with extension of period of limitation, if it is satisfied on the facts and circumstances of the case that the delay has been properly explained
7. Having regard to the aforesaid law as indicated it is alleged that the marriage between the respondent and accused-1 took place on 12.11.1995 at Nanak Nagar, Jammu according to Sikh rites and ceremonies; that the parties after marriage could not carry on well. It is alleged by the respondent that at the time of marriage, she had received items of dowry from her parents and other relations presents, valuable clothes, furniture items and kitchenware etc.; that after the marriage, the petitioner as well as her husband started maltreating her demanding more dowry from her parents and did not threat her well and finally turned her out from her matrimonial house and then with the intervention of Biradari, she returned back to her matrimonial house in the year 1996 but the attitude of petitioner and accused-1 remain unchanged and finally she turned out from her matrimonial house and since then she is living in her parental house and the accused despite her repeated demand, did not return her dowry items and mis-appropriated them and converted them into his own use. From these averments of the complaint, it is manifest that the occurrence took place in the year 1996 and the complaint in hand came to be instituted on 30.5.2002 that is to say well after six years of the commission of offence, when under Section 538-B Sub-section (2), the period of limitation prescribed is three years. This being so, the cognizance of the offence taken on 30.5.2002 and issuance of process against the accused on this date by the learned Magistrate is totally barred.
8. Viewed thus, the petition is allowed and the complaint against the petitioner and taking of cognizance by the learned Magistrate under Section 406 RPC and issuance of process being time-barred by law, are quashed because the continuance of the proceedings against the petitioners in the case will amount to abuse of process of law. Therefore, taking of cognizance against the petitioners and issuance of process against them by the learned Magistrate, are hereby quashed. Record of the cases together with copy of this order, shall be sent to learned Magistrate for information and necessary action.