Raj Kumar vs Ram Murti

J.S. Sekhon, J.

Raj Kumar accusedpetitioner has filed this petition under the provisions of Section 482 Cr.P.C. for quashing the complaint (Annexure P2) and the order dated 10.5.1991 of the SubDivisional Judicial Magistrate, Rajpura (Annexure P2) and the order dated 22.2.1992 (P3) of learned Additional Sessions Judge, Patiala rejecting the revision petition filed by the petitioner against the summoning order interalia on the ground that dismissal of the application for the grant of permission to prosecute the petitioner under section 8 A of the Dowry Prohibition Act, 1961 substituted by the Punjab Dowry Prohibition, Punjab Amendment Act. No. 26 of 1976 would operate as bar to the subsequent prosecution of the petitioner for offence under section 406 read with Section 34 IPC besides on the ground of the complaint being barred by limitation under section 468 of the Code of Criminal Procedure as well as vagueness of the allegations.

In brief, the facts of the complainant''s case relevant for the disposal of this petition as contained in the complaint (Annexure P2) are that Mst. Ram Murti complainant was married with Raj Kumar accused respondent on 5.6.1979 at village Batwal Tehsil Naraingarh. The parents and other relations of the complainant gave dowry articles and other gifts at the time of solemnization of her marriage. She has given list of these articles in Annexure A. She further maintained that these articles were handed over to the accused and formed part of Istri Dhan. She further maintained thatthe articles mentioned in the Annexure were entrusted soon after marriage and that she was tuned out from her matrimonial home in three clothes on 15.7.1985. On these allegations she had filed complaint on 21.6.1987 (Annexure P2) against her husband and fatherinlaw Ram Sarup for offence punishable under Section 406/34 IPC. The trial Court vide order dated 10.4.1991 framed a charge under Section 406 IPC against Raj Kumar petitioner only as the other coaccused Ram Sarup had died during the pendency of these proceedings. The petitioner being aggrieved against that order went in revision, which was dismissed by the learned Additional Sessions Judge, Patiala vide order dated 27.2.1992. Under these circumstances, the petitioner has invoked the inherent jurisdiction of this Court.

This petition is resisted by the complainant contending that non granting of permission under section 8A of the Dowry Prohibition Act would not operate as bar for filing this complaint under Section 406 IPC especially when it was dismissed on the ground that the husband has obtained an ex parte decree of divorce dated 7.3.1986. She further maintained having go set aside the ex parte decree of divorce. It was also maintained that she being residing with her husband the articles forming part of Istri Dhan stood entrusted to him and his failure to return these articles would amount to violation of the provisions of Section 406 IPC. It was also maintained that the limitation will start from the date she was turned out by her husband and on his last refusal to hand over her Istri Dhan to her.

I have heard the learned counsel for the parties besides perusing the record.

No doubt the application, true copy whereof is Annexure P5, filed by Mst. Ram Murti under Section 8A of the Dowry Prohibition Acts, 1961 for permission to prosecute her husband and other relations under Sections 4, 1B and 6 of the Dowry Prohibition Act, 1961 and under Section 406 IPC, was dismissed by the learned Sub Divisional Judicial Magistrate vide his order dated 15.1.1987 yet all the same, it will not operate as bar to the prosecution of the accused under Section 406 IPC as no permission was required for prosecution of the accused for this offence i.e. 406 IPC. Section 8A of the Dowry Act reads as under :

"8A Institution of proceedings :

No prosecution shall be instituted against any person in respect of any offence committed under this Act without the previous sanction of the District Magistrate or of such officer as the State Government may by special or general order appoint in this behalf."

A bare perusal of the above referred provisions leaves no doubt that it bars the prosecution for offence under the provisions of this Act without prior sanction of the District Magistrate or of such officer, as the State Government may be special or general order, so appoint. Consequently, by no stretch of imagination, it can be said that nonaccording of permission to prosecute under Sections 4, 1B and 6 of the Dowry Prohibition Act would operate as bar under Article 22 of the Constitution of India or under the provisions of Section 300 Cr.P.C. as these provisions would be operative only if a person has been tried, convicted or acquitted of such offence by a court of competent jurisdiction for an offence as an enquiry for the purpose of according permission for prosecution cannot be equated with trial on merits of the case.

The question then arises whether the complaint is barred by time under the provisions of Section 468 Cr.P.C. In this regard, it is noteworthy that the perusal of the complaint reveals that the articles mentioned in Annexures A and B were entrusted to the accused at the time of marriage on 15.6.1979. Thereafter, these were not handed over to the complainant on her repeated demands and the last demand pertains to 15 days prior to the filing of this complaint on 21.6.1987. Consequently, it cannot be said the complaint is barred under Section 468 Cr.P.C. especially when the offence under Section 406 IPC is a continuing one. The observations of the Division Bench of this Court in Balram Singh v. Sukhwant Kaur and another, 1991(3) Recent Criminal Reports 404 can be safely relied upon in this regard. In that case after elaborate discussion and referring to the decision of the Apex Court in State of Bihar v. Deokaran Nenshi and another, AIR 1973 SC 908 as well as in Bhagirath Kanoria and others v. State of M.P., 1984(2) R.C.R.(Criminal) 393 : AIR 1984 Supreme Court 1688, the Division Bench came to the conclusion that the offence under Section 406 IPC is continuing one and that it continues till the property which has been criminally misappropriated is restored to the true owner. Thus the complaint having been filed within 15 days of the last refusal of the accused to part with Istri Dhan, it cannot be said to be barred by time.

On the point of limitation, learned counsel for the petitioner also relied upon the provisions of Section 6 of the Dowry Prohibition Act, 1961 contending that the cause of action arose after three months of the marriage after the receipt of Istri Dhan and on his failure to return the property, he is liable to be punished. This argument of the learned counsel appears to be misfounded as under Section 6 of the Act, the failure to return the property within three months has been made penal. The provisions of Section 6 of the Dowry Prohibition Act read as under :

"Section 6: Dowry to be for the wife or her heirs :

(i) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman :

(a) if the dowry was received before marriage, with (three months) after the date of marriage; or

(b) if the dowry was received at the time of or after the marriage, within (three months) after the date of its receipt; of

(c) if the dowry was received when the woman was a minor, within one year after she has attained the age of eighteen years.

and pending such transfer, shall hold it in trust for the benefit of the woman.

(2) If any person fails to transfer any property as required by subsection (1) within the time limit specified therefor (or as required by subsection (3), he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years or with fine (which shall not be less than five thousand rupees, but which may extend to ten thousand rupees) or with both.

(3) xx, xx, xx

(4) xx, xx, xx

A bare perusal of the above referred provisions shows that this section does provide a cause of action to the aggrieved party to launch prosecution under Section 6 of the Dowry Prohibition Act and not for criminal breach of trust and misappropriation punishable under Section 406 IPC. Thus, I find no force in this contention.

last contention of the learned counsel for the petitioner pertaining to lack of specific allegations regarding entrustment of Istri Dhan to the petitioner is also devoid of any force as the Istri Dhan being left at the house of the accused, it shall be presumed that the same entrusted to him on behalf of his wife.

For the reasons recorded above, I find no force in this petition. The same is ordered to be dismissed. Parties directed at appear before the trial Court on 21.9.1992.