Gurcharan Singh vs Lakhwinder Kaur

I.S. Tiwana, J.

Notices sent to respondents Nos. 2 and 3 have not been received back. However, I am informed by the learned Counsel for the parties that these respondents are respectively the son and wife of the petitioner. Since the impugned complaint has been filed by respondent No. 1 against all three of them, their interests are common. In view of this I am satisfied that these respondents need not be served in this case.

The petitioner along with respondents Nos. 2 and 3 i.e. his son and wife has been summoned by the Judicial Magistrate Ist Class, Kharar, to face trial under Section 406, I.P.C. and Sections 4 and 6 of the Dowry Prohibition Act, 1961, on a complaint by respondent No. 1. The petitioner prays for the quashing of the said order and the complaint also.

Concededly, the parties had a number of bouts of litigation by the time this complaint was filed on October 30, 1985. The relevant details are as follows.

The complainant and respondent No. 1 (now petitioner) were married on April 30, 1977. As per the allegation in the complaint, she was turned out of the matrimonial home in October, 1978. She gave birth to a female child in January, 1979 at the residence of her parents. In April, 1981, the husband filed a petition under Section 13 of the Hindu Marriage Act. During these proceedings, the wife claimed maintenance pendente lite under Section 24 of the Act. Before the said application could be disposed of finally by the Court she moved another application under Section 125 of Code of Criminal Procedure on April 17, 1984, in the Court of Judicial Magistrate Ist Class, Kharar. The said application too was allowed on February 20, 1985. The divorce petition filed by the husband was dismissed by the trial Court on January 9, 1985. It is thereafter that the present complaint was filed by the wife on October 30, 1985.

The primary submission of Mr. Tulsi, the learned Counsel for the petitioner, is that the present complaint is not within the period of limitation prescribed under Section 468 of the Code of Criminal Procedure and in view of that the trial Court was not competent to take cognisance of the matter. Having heard the learned Counsel for the parties at some length, I find that this stand of Mr. Tulsi is not devoid of merit. It is not disputed that the period of limitation in the instant case would be three years from the date when the office of which the petitioner and respondents Nos. 2 and 3 are accused of was committed. Having perused the complaint, I find that it has nowhere been stated by the complainant that as to when any of the accused refused to return the articles entrusted to them which she claimed to be her Istri Dhan. All that has been stated in this regard in paragraph No. 7 is as follows :

"That even otherwise the articles of dowry presented at the time of marriage and handed over to the accused persons were to remain in trust with them till the same are handed over by them to the complainant and their refusal to hand over the said articles to the complainant amounts to breach of trust and the same is punishable under Section 406, I.P.C."

It is thus patent that the complainant has nowhere alleged as to when any of the offences referred to in the complaint was committed by the accused. In the absence of any such plea, the complaint can obviously be not treated within limitation even prima facie. Mr. Amarjit Markan, appearing for the respondentwife, however, contends that firstly the allegations in paragraph No. 7 of the complaint, as noticed above, should be taken to mean that the accused had refused to return the articles of dowry of Istri Dhan of the complainant on the date of the complaint was filed and secondly the complainant is entitled to lead evidence to satisfy the Court that there is a case for condonation of delay, if there is any. To take up the last argument first, I am of the view that on such plea of condonation of delay can possibly be proved in the absence of any such plea having been taken in the complaint. In view of the provisions of Section 468, Cri. P.C. the complainant has to disclose or mention the starting point of limitation so far as the trial of the offences governed by that section is concerned. No such allegation, as already pointed out, has been made in this complaint. The Court, as per the phraseology of Section 468, Cri.P.C., was not competent to take cognizance of the matter at all. I thus allow this petition and while setting aside the impugned order dated November 5, 1985 quash the complaint Annexure P.1 against the petitioner and respondents Nos. 2 and 3.