Judgment - Section 498A and 406 - Dowry Harassment - Breach of Trust

Court: Punjab and Haryana High Court

Bench: JUSTICE V.M. Jain

Hussan Lal Vs. State Of Punjab & Anr. On 11 January 2002

Law Point:
Section 406, 498-A — Criminal Procedure Code, 1973 — Section 469 — Criminal Breach of Trust, Cruelty : Limitation for Offence is 3 Years : Limitation shall Commence on Date of Offence.

JUDGEMENT

1. This is a petition under Section 482 Cr.P.C. filed by the accused petitioners, seeking quashment of the criminal complaint dated 17.8.1999, copy Annexure PI and the summoning order dated 28.8.2000, copy Annexure P2, vide which the petitioners have been ordered to be summoned as accused for the offences under Sections 406/498-A, IPC and also seeking quashment of the subsequent proceedings taken thereon.

2. In the petition it was alleged that the petitioners were unfortunate parents of Jagtar Singh, who was most unfortunate to marry complainant-respondent No. 2, Smt. Parminder Kaur on 16.10.1988. It was alleged that after the marriage, respondent No. 2 Smt. Parminder Kaur and Jagtar Singh were leading happy and peaceful life and a son was also born in the year 1989. It was alleged that the complainant-respondent had gone to her parents’ house for the purpose of delivery and she had taken with her all her ornaments, etc. It was alleged that after the delivery of the child, the petitioners had gone to see the complainant and the child and had taken with them valuable gifts, etc. It was alleged that during the stay of the complainant in her parents’ house some trouble arose due to habits of her brother Karam Singh. It was alleged that when petitioner No. 1 alongwith his son and others wanted to get the matter compromised between them, said Karam Singh started nursing a grudge against the petitioners and his son, which resulted in a criminal case. It was alleged that said Karam Singh divorced his wife and had remarried. It was alleged that he was virtually living on the earnings of his father besides earnings of complainant-respondent No. 1 who was forced to work as labourer in the fields. It was alleged that due to his behaviour the relations between the son of the petitioners and respondent No. 2 became strained which resulted in dissolution of marriage on 13.9.1999. It was alleged that on 17.8.1999, respondent No. 2, at the asking of her brother Karam Singh, instituted a criminal complaint, copy Annexure PI, leveling false allegations against the petitioners and their son. It was alleged that the said complaint was time-barred inasmuch as the compliant is dated 17.8.1999, whereas she had left the house of the petitioners and had given birth to a son in 1989. It was alleged that the learned Magistrate, after recording preliminary evidence in the said time-barred complaint, ordered summoning of the petitioners as accused under Sections 406/498-A, IPC, vide order dated 28.8.2000, copy Annexare P2. It was alleged that the order of summoning was passed inspite of the fact that the complaint was time-barred in view of the provisions of Section 468, Cr.P.C. It was accordingly prayed that the criminal complaint and the summoning older and all subsequent proceedings be quashed.

3. No written reply to the petition has been filed.

4. I have heard the learned Counsel for the patties and have gone through the record carefully.

5. As referred to above, the petitioners are father-in-law find mother-in-law of the complainant-respondent No. 2, Smt. Parminder Kaur. It is not disputed before me that Jagtar Singh, husband of the complainant was also summoned as an accused in the aforesaid complaint alongwith petitioners but he is not appearing in the Court and he is absconding. An ex-parte decree of divorce was obtained on 13.9.1999. However, prior to the decree of divorce, the complainant had filed criminal complaint dated 17.8.1999, copy Annexure PI against the petitioners and their son jagtar Singh for the offences under Sections 406/498-A, IPC read with Sections 4 and 6 of the Dowry Prohibition Act. The learned Judicial Magistrate after recording the preliminary evidence had ordered summoning of the petitioners and their son Jagtar Singh for the offences under Sections 406/498-A, IPC vide order dated 28.8.2000.

6. Under Section 468(2)(c), Cr.P.C. the period of limitation is 3 years if the offence is punishable with imprisonment for a term exceeding 1 year but not exceeding 3 years. For the offence under Section 406, IPC, the maximum punishment provided is imprisonment for 3 years or tine or both. For the offence under Section 498-A, IPC, the maximum punishment provided is imprisonment for 3 years and accused is also liable to pay fine. Under Section 469, Cr.P.C. it is provided that the period of limitation in relation to an offender shall commence on the date of offence. In the complaint dated 17.8.1999, copy Annexure P1, it was alleged by Smt. Parminder Kaur that she was married to Jagtar Singh in the year 1988 and that at the time of marriage, sufficient dowry was given but the accused were not satisfied with the dowry and raised further demand and when her father failed to fulfil the same, the accused started maltreatment towards her and ultimately she was turned out of the house. It was alleged that after the birth of the child when the message was sent to the accused, the accused did not visit to see newly born child. It was alleged that on 4.2.1990, accused I and 2 alongwith estranged brother of the complainant attacked her father, other brother and sister and a case under Section 326, IPC, etc. was registered and the accused were convicted for causing injuries. It was alleged that thereafter complainant filed a case under Section 125, Cr.P.C. against Jagtar Singh and same was decided in favour of the complainant and her son Manjit Singh but inspite of that the maintenance amount was not being paid. It was alleged that later on Jagtar Singh filed petition under Section 9 of the Hindu Marriage Act but the same was dismissed by the Court on 2.6.1999. It was alleged that the complainant had filed a divorce petition against Jagtar Singh, which was pending in the Court of Additional District Judge (the divorce was later on granted on 13.9.1999 as alleged in the petition). It was alleged that the dowry articles mentioned in Annexure PA attached with the complaint were handed over to all the accused at the time of marriage as a trust inasmuch as said articles were for the exclusive use of the complainant but the complainant had (been) denied the use of said articles which included gold ornaments and valuable clothes, etc. It was alleged that the said articles were in possession of the accused persons and they have misappropriated the same.

7. As referred to above, under Section 468, Cr.P.C. the limitation for the offences under Sections 406/498-A, IPC is 3 years. Under Section 469, Cr.P.C. the limitation shall commence on the date of offence. The offence under Section 406, IPC would be committed by the accused as and when they refused to return the dowry articles to the complainant and misappropriated the same. There is nothing on the record to show that more than 3 years prior to the filing of the complaint, the accused had refused to return the dowry articles to the complainant or that on that account, the complaint had become time-barred.

8. Furthermore, in Vanka Radhamanohari (Smt.) v. Vanka Venkata Reddy and Others, I (1994) DMC 458 (SC)=1993 (3) SCC 4, it was held by the Hon’ble Supreme Court that the provisions of Section 468, Cr.P.C., which put bar of limitation on prosecutions, cannot be extended to matrimonial offences, where the allegations are of cruelty, torture and assault by the husband or other members of the family, to the complainant. It was further held that it is a matter of common experience that victim is subjected to such cruelty repeatedly and it is more or less like a continuing offence. It is only as a last resort that a wife openly comes before a Court to unfold and relate the day-to-day torture and cruelty faced by her, inside the house, which many of such victims do not like to be made public. It was further held in the said authority that the Courts while considering the question of limitation for an offence under Section 468-A, I.P.C., should judge that question in the light of Section 473, Cr.P.C., which requires the Court, not only to examine as to whether the delay has been properly explained, but as to whether it is necessary to do so in the interests of justice. It was further held by the Hon’ble Supreme Court in the said authority as under :

“Even in respect of allegation regarding an offence under section 498-A of the Penal Code, it appears that the attention of the High Court was not drawn to Section 473 of the Code. In view of the allegations that the complainant was being subjected to cruelty by the respondent, the High Court should have held that it was in the interests of justice to take cognizance even of the offence under Section 498-A ignoring the bar of Section 468, Cr.P.C.”

9. In Arun Vyas v. Anita Vyas, II (1999) DMC 247 (SC)=V (1999) SLT 184=1999 (2) RCR (Cr.) 828 (SC), it was held by their Lordships of the Supreme Court that the essence of the offence in Section 498-A is cruelty as defined in the Explanation appended to that section. It is a continuing offence and on each occasion on which the respondent was subjected to cruelty, she would have a new starting point of limitation. It was further held in the said authority that Section 473, Cr.P.C. extends the period of limitation in two parts. The second part has two limbs. The first limb confers power on every competent Court to take cognizance of an offence after the period of limitation if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained and the second limb empowers such a Court to take cognizance of an offence if it is satisfied, on the facts and in the circumstances of the case, that it is necessary so to do in the interests of justice. It was further held in the said authority that “interest of justice” demands that the Court should protect the oppressed and punish the oppressor/ offender. In complaints under Section 498-A the wife will invariably be oppressed, having been subjected to cruelty by the husband and in-laws. It is, therefore, appropriate for the Court, in case of delayed complaints, to construe liberally Section 473, Cr.P.C., in favour of wife who is subjected to cruelty if on the facts and in the circumstances of the case, it is necessary so to do in the interests of justice. It was further held in the said authority that when the conduct of the accused is such that applying rule of limitation will give an unfair advantage to him or will result in miscarriage of justice, the Court may take cognizance of an offence after the expiry of period of limitation in the interests of justice. Reliance was placed on the law laid down by the Hon’ble Supreme Court, in the case reported as 1993 (3) SCC 4 (supra).

10. In view of the law laid down by the Hon’ble Supreme Court in the above mentioned authorities, it would be clear that the complaint in question, the summoning order passed by the learned Magistrate and all subsequent proceedings taken thereon, cannot be quashed on the ground of limitation, especially when the Court is competent to take cognizance even after the period of limitation by virtue of the provisions of Section 473, Cr.P.C. Furthermore, the offence under Section 498-A, IPC being a continuous offence, it could not be said that the present complaint under Sections 406/498-A, IPC had become time-barred. In my opinion, on the facts and circumstances of the present case, it cannot be said that the complaint, summoning order and all subsequent proceedings taken thereon against the accused petitioners were liable to be quashed on the ground that the complaint was barred by time, in view of the provisions of Section 468(3), Cr.P.C. read with Section 473, IPC.

For the reasons recorded above, finding no merit in this petition, the same is hereby dismissed.

Petition dismissed.

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