Saturday, 19 December 2015

When prosecution for misappropriation of streedhan can be quashed?

Para 4 of the complaint Annexure P. 1 reads "That immediately after the marriage the intention of all the accused became very clear when they started maltreating Inderpal Kaur and forced her to bring more dowry as the accused were not satisfied with the dowry which Inderpal Kaur received from her parents and entrusted the same to her husband and other accused. The property came 'Istri Dhan' and the accused with deceitful means have sold some of (he articles and the remaining converted to their own use. There is thus no specific allegation of entrustment of any particular article of dowry to any of the thee persons (Husband and both parents-in-law) arrayed as accused in the complaint. This Court has consistently held in Smt. Manna v. State of Haryana, 1987 (1) Recent Criminal Reports 219 and Shori Lal and others v. Smt. Nisha and another, 1989 (1) Recent Criminal Reports 276 that no case under Section 405 or Section 406,Indian Penal Code, is made out against the petitioner where the allegations regarding entrustment of articles are vague. Relevant observations read, "The matter does not rest here as the trial of the complaint leveals that no specific allegations regarding entrustment of the articles or maltreatment has been levelled against them. Simply because they were found wearing some ornaments of the complainant, it cannot be said that they have committed any offence underSections 405 and 406, Indian Penal Code, due to lack of prima facie proof of entrusting the property of them. Similarly, there is no specific allegation of entrustment of the articles forming Istri Dhan of the complainant to or against the parents of the husband. In this view of the matter complaint Annexure P. 1 needs to be quashed.

Punjab-Haryana High Court

Gurvel Singh vs Rajinder Singh on 21 November, 1989
Equivalent citations: I (1990) DMC 139

Bench: S Bajaj

1. Criminal Misc. No. 5482-M of 1988 has been filed by petitioner-husband against his father-in-law Rajinder Singh for quashing First Information Report Annexure P. 1 dated August 3, 1985 on the grounds that civil suit inter-parties for the same relief of return of dowry articles is already pending in the court of learned Senior Sub Judge, Gurdaspur, that complaint is hopelessly barred by limitation in terms of Section 468 of the Criminal Procedure Code, 1973, that allegations set out in the complaint do not make out the commission of any offence by the petitioner in as much as there is no allegation of specific entrustment of any particular item of dowry to the petitioner or his parents and that the complaint Annexure P-l is obviously an abuse of the process of the Court for reasons aforesaid.
2. In Criminal Misc. No. 3622 of 1989 filed for vacation of the stay order granted to the petitioner ex-parte by my learned brother H.S. Rai, J. on August 25, 19,88 respondent Rajinder Singh admitted the passing of decree for mandatory injunction of civil suit No. 115 filed on June 15, 1982 and decided on July 25, 1988 for specific return of dowry articles by the petitioner to his wife Inder Pal Kaur, asserted that misappropriation of dowry articles was a continuous offence and stated that both the civil and criminal proceedings could simultaneously go on and as such Criminal Misc. filed by the petitioner-husband merits dismissal.
3. I have beard Shri M.C. Sethi, Sr. Advocate, with Shri Amit Sethi, Advocate, for the petitioner, Shri G.S. Bawa, Advocate, for the respondent and have carefully gone through the record.
4. Para 4 of the complaint Annexure P. 1 reads "That immediately after the marriage the intention of all the accused became very clear when they started maltreating Inderpal Kaur and forced her to bring more dowry as the accused were not satisfied with the dowry which Inderpal Kaur received from her parents and entrusted the same to her husband and other accused. The property came 'Istri Dhan' and the accused with deceitful means have sold some of (he articles and the remaining converted to their own use. There is thus no specific allegation of entrustment of any particular article of dowry to any of the thee persons (Husband and both parents-in-law) arrayed as accused in the complaint. This Court has consistently held in Smt. Manna v. State of Haryana, 1987 (1) Recent Criminal Reports 219 and Shori Lal and others v. Smt. Nisha and another, 1989 (1) Recent Criminal Reports 276 that no case under Section 405 or Section 406,Indian Penal Code, is made out against the petitioner where the allegations regarding entrustment of articles are vague. Relevant observations read, "The matter does not rest here as the trial of the complaint leveals that no specific allegations regarding entrustment of the articles or maltreatment has been levelled against them. Simply because they were found wearing some ornaments of the complainant, it cannot be said that they have committed any offence underSections 405 and 406, Indian Penal Code, due to lack of prima facie proof of entrusting the property of them. Similarly, there is no specific allegation of entrustment of the articles forming Istri Dhan of the complainant to or against the parents of the husband. In this view of the matter complaint Annexure P. 1 needs to be quashed.
5. The wife was admittedly turned out of her matrimonial home in May, 1980 when the petitioner-husband is also alleged to have refused the return of dowry articles to her. In terms of Section 9of the Indian Limitation Act read with Section 468, Criminal Procedure Code, the three years period of limitation started running in May, 1980 and the complaint Annexure P. 1 could, therefore, be filed by the respondent till May, 1983 and having been filed on August 3, 1985 is obviously hopelessly barred by limitation.
6. Relevant Section 9 of the Indian Limitation Act and Section 468 of the Criminal Procedure Code read, Section 9 of the Limitation Act "where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stop it, provided that, where letters of administration to the estate of a creditor have been granted to his debtor, the running of the period of limitation for a suit to recover the debt shall be suspended while the administration continues."
Section 468 of the Criminal Procedure Code, 1973.
468(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. 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 the more severe punishment or, as the case may be, the most severe punishment."
7. Dealing with application of Section 468, Criminal Procedure Code, their lordships of the Supreme Court observed in State of Punjab v. Sarwan Singh, Vol. LXXXIII 1981 Punjab Law Reporter 457 as follows :
"Held, that the object of the 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 of India. 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. The prosecution against the respondent being barred by limitation the conviction as also the sentence of the respondent as also the entire proceedings culminating in the conviction of the respondent herein is non-est."
Again my learned brother M.M. Punchhi, J. (since elevated to the Supreme Court) observed inWaryam Singh v. State of Punjab, 1982 Cri.L.J. (N.O.C.) 137 (Pb. and Har.), "A person entrusted with property belonging to a society was charged under Section 406 I.P.C. for having converted the property to his personal use. The accused admitted possession of the property and having converted it to personal use during an enquiry before the Inspector of Co-operative Societies. The challan presented four years after the date of such admission was challenged on the ground of limitation. Held, that the offence under Section 406 was not a continuing offence and stood committed once for all, at least when the accused made the statement of admission before the Inspector of Co-operative Societies. The Challan presented beyond three years thereafter was barred by limitation." Complaint Annexure P. 1 being barred by limitation deserves to be quashed on this score as well.
8. Civil Suit No. 115 filed by the wife on 15th June, 1982 against the petitioner-husband for mandatory injunction directing defendant-petitioner to return dowry articles having been decreed on 25th July, -1988, filing of complaint Annexure P. 1 on 3rd August, 1985 and the making of the summoning order dated 29th May, 1986 therein by the learned Additional Chief Judicial Magistrate, Gurdaspur, are both obviously an abuse of the process of the Court and, therefore, deserve to be quashed on this score as well.
9. For the reasons given above, Criminal Misc. filed by the petitioner-husband succeeds and is allowed. Complaint Annexure P-l and the proceedings pending against the petitioner before the learned Addl. Chief Judicial Magistrate, Gurdaspur, on its basis are both quashed.
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