Satya Brat Singh and Smt. Moti Devi vs The State of Bihar and Another

G.S. Chaube, J.—This application under sections 397 and 401 of the Code of Criminal Procedure (the Code for short) is directed against the order dated 17.6.1998 of the Judicial Magistrate, Dhanbad passed in C.P. Case No. 23/97 declining to discharge the petitioners in accordance with the provisions of subsection (1) of section 245 of the Code. The short fact of the case, as made out in the petition of complaint filed by opposite party no. 2 Smt. Reebha Singh, is that she was married to one Dr. Ashok Kumar Singh (accused no. 1 in the petition of complaint) who is the son of petitioners, in the month of May, 1982 and at the time of marriage, cash, ornaments and utensils worth Rs. 1.75 lakhs had been given by her parents to the accused persons and entrusted to these petitioners. After marriage the couple were living happily. However, when the marriage of a daughter of the petitioners was to be performed in May, 1983, these petitioners and their son Dr. Ashok Kumar Singh asked her father to pay a sum of Rs. 25,000/- to them to meet the expenses of the said daughter of the petitioners. On that occasion, these petitioners also gave the entire ornaments belonging to the complainant to their daughter inspite of protest by opposite party no. 2. At a later stage, the son of the petitioner and husband of the complainant obtained a job in the railway hospital at Dhanbad and the couple alongwith two children born out of their wedlock started living there since January, 1992. In course of their sojourn at Dhanbad, the husband of the complainant, namely, the son of the petitioners started subjecting opposite party no. 2 with various types of cruelty. At times, he used to come to residence in a drunken state and abuse and assault her. He also picked up some acquaintance with another girl and started bringing her to his quarter to the utter dislike of the complainant. Lastly, in 1996, the husband of the complainant instituted a divorce suit in the court of the Principal Judge, Family Court at Dhanbad for dissolution of the marriage on the ground that his wife, the complainant, was suffering from (Schizophrenia) even prior to their marriage. He even charged her with adultery. From Dhanbad he was transferred to Jhajha. He went there leaving the complainant and two minor children at Dhanbad and neglected them. All attempts on the part of the complainant to bring about some sort of settlement and reconciliation between the parties failed, she filed the complaint petition in the court of the Chief Judicial Magistrate, Dhanbad on 17.1.1997 charging these petitioners and her husband with commission of offences under sections 498A and 406 of Indian Penal Code.

The complainant was examined u/s 200 of the Code. An inquiry u/s 202 thereof was also conducted. Thereafter, these petitioners and accused no. 1 Dr. Ashok Kumar Singh were summoned for facing trial on the said charges. Two witnesses were examined on behalf of the complainant u/s 244 of the Code. Some documents, like letters and the judgement of the matrimonial suit which, in the mean time, was decreed and the marriage of the complainant with accused no. 1 dissolved, were filed. Prayer was made on behalf of the accused persons to discharge them on two grounds; first, that no offence was made out; and secondly, that the cognizance was barred by limitation prescribed u/s 468. However, the plea of the accused persons did not find favour with the Judl. Magistrate who declined their prayer by making the impugned order on 17.6.1998. Learned Magistrate has observed that the offence u/s 498A/IPC is a continuing offence; therefore, cognizance could not be barred. He has further observed that on the record there is sufficient material to presume that offences under sections 498A and 406/IPC were committed by the accused persons.

Against the order of the learned Judicial Magistrate declining to discharge the accused persons and showing his intention to frame charges under sections 498A and 406 of Indian Penal Code against all the accused persons, the husband of the complainant namely, accused no. 1 in the complaint petition, has not come to this court. However, his parents who are the petitioners, have seriously challenged the sustainability of the impugned order. Learned counsel for the petitioners has submitted that on going through the petition of complaint and the statements of two witnesses examined on behalf of the complainant u/s 244 of the Code, one does not notice even a whisper of any cruelty or torture at the hands of these petitioners. Therefore, according to him, no offence u/s 498A of Indian Penal Code is shown to have been committed by these petitioners. On going through the petition of complaint, I find that only allegation against these petitioners is that at the time of the marriage of their daughter in May, ''83, they had pressurised the father of the complainant to pay to them a sum of Rs. 50,000/-. No allegation of commission of offence under the Dowry Prohibition Act has been made. Indeed, no prosecution under the said Act is permitted in absence of sanction by the State Govt. According to the allegations made in the complaint petition, torture or cruelty to the complainant started in 1992; and that too, at the hands of her husband when they came to reside at Dhanbad. Incidentally, these petitioners reside at their village home in the district of Khagaria. There is no whisper anywhere that they ever visited Dhanbad after 1992 and before filing of the complaint. In course of her evidence, complainant (PW2) and her elder daughter (PW1) have also not whispered anything against the petitioners in the matter of subjecting her with cruelty either for dowry or for any other reason. Therefore, it is manifest that the evidence adduced on behalf of the complainant does not make out commission of offences u/s 498A of the Indian Penal Code by these petitioners.

Indeed, the complainant has stated in the petition of complaint as also in her evidence in court that she had entrusted her ornaments to these petitioners and they gave the same to their daughter(s) at the time of marriage even though she protested. It may be mentioned that in the petition of complaint, she had stated that all her ornaments entrusted by her to these petitioners were given by them to their daughter who was married in the month of May, 1983. However, when in the witness box she stated that part of her ornaments were given to the daughter who was married in 1983, and whatever remained was given to their second daughter on the occasion of her marriage which took place in 1987. She has also stated that on both the occasions, she had protested; still her ornaments were given to her sisters-in-law and have not been returned to her as yet. If what the complainant has stated in the petition of complaint and in her evidence in court are accepted to be true,�and there is nothing to hold otherwise at this stage,� certainly, offence of criminal breach of trust punishable u/s 406 of Indian Penal Code is shown to have been committed by the petitioners. However, learned counsel for the petitioners submitted that cognizance of the said offence was hopelessly barred. Offence u/s 406/IPC is punishable for a maximum period of three years'' imprisonment and according to sub-section (2) of section 468 of the Code, the period of limitation prescribed for offence punishable with imprisonment for a term exceeding one year, but not exceeding three years is three years. Section 468(1) of the Code lays down that except as otherwise provided elsewhere in the Code, no court shall take cognizance of the offence of the category specified in sub-section (2), after expiry of period of limitation. Offence u/s 406 of Indian Penal Code is alleged to have been committed by these petitioners, according to the complaint version in May, 1983, and according to the version of the complaint in court, in 1987. The complaint was filed nearly ten years after commission of the second offence u/s 406/IPC in 1987. Therefore, since cognizance of the said offence was barred by limitation, even when what the witnesses of the complainant have stated on oath were to remain unrebutted, the petitioners could not have been convicted. Sub-section (1) of section 245 of the Code enjoins that if upon taking of the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out, which if unrebutted, would warrant his conviction, the Magistrate shall discharge him. The same view has been taken by the apex court in the case of Arun Vyas & Ors. vs. Anita Vyas: 1999(2) Eastern India Criminal Cases 72(SC).

Thus, on consideration of the materials on record it is evident that no offence u/s 498A of the Indian Penal Code is shown to have been committed by the petitioners and even if one u/s 406 of the same Code is shown to have been committed by them, cognizance of the same was barred by limitation. Therefore, the learned Judicial Magistrate was not justified in declining the prayer of, at least, these two petitioners for being discharged. In the result, the present application is allowed and the impugned order dated 17.6.1998 made in C.P. No. 23 of 1997 in so far as it concerns these petitioners, who are accused no. 2 and 3 in the petition of complaint, is hereby set aside and both the petitioners stand discharged u/s 245(1) of the Code.