Jaswinder Singh vs State Of Punjab on 19 May, 2017

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CRM-M-27859-2013
Date of Decision:- 19.05.2017

Jaswinder Singh
….Petitioner
Versus
State of Punjab
….Respondent

CORAM: HON’BLE MS. JUSTICE RITU BAHRI

Present: Mr. R.M. Sharma, Advocate
for the petitioner.

Mr. J.S. Sekhon, AAG, Punjab.

Mr. A.S. Syan, Advocate
for the complainant.

****

RITU BAHRI, J. (Oral)

This petition is under Section 482 Cr.P.C. for quashing of order

dated 13.05.2013 (Annexure P-3) whereby the revision against the order

framing charge under Sections 406 and 498-A IPC has been dismissed and

for quashing of charge-sheet dated 17.01.2010 (Annexure P-1).

The marriage of the petitioner and complainant was solemnized

as per Sikh Customs on 09.12.2001 at Gurudwara Khel Sahib, Patiala. At

the time of marriage, the petitioner was practicing lawyer at Civil Courts

whereas the complainant was working as a Teacher in a private school.

Petitioner joined in service as Inspector, Municipal Council, Lehra Ghagga

before the marriage and thereafter the marriage was solemnized. Both of

them cohabited up to 01.04.2003 and after that they started living

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separately. On 17.04.2008, the petitioner filed a petition under Section 9 of

the Hindu Marriage Act for the restitution of conjugal rights, in which, after

notice the complainant has refused to accept the summons. Thereafter, on a

complaint dated 01.08.2008 of complainant, the police registered the

present FIR No.243 dated 01.10.2008 under Sections 406 and 498-A IPC

against the accused. After investigation, the challan was presented and

thereafter the charge was framed under Sections 406, 498-A and 494 IPC

by the trial Court. In revision before the learned ASJ, Patiala, the charge

framed under Section 494 IPC has been set aside and the order framing

charge under Sections 406 and 498-A IPC has been held to be valid.

Learned counsel for the petitioner has argued that after

01.04.2003 till 01.11.2008 i.e. about 5 years, no complaint was made by the

complainant with regard to allegations of cruelty and misappropriation

against the petitioner and his family members. As per Section 468 Cr.P.C.

the Court could not take the cognizance of the offence as the limitation to

initiate the complaint was three years.

As per allegations in the FIR, the petitioner (husband of the

complainant) was having illicit relationship with Narinder Kaur (bhabi),

who is wife of elder brother, namely, Narinder Pal Singh. It is further

alleged by complainant that brother of the petitioner wanted to take the land

which they were cultivating without giving any rent. In February, 2003, the

father of the complainant was offered a job in SGPC at Amritsar and at that

point of time petitioner-Jaswinder Singh started residing with the

complainant in her paternal house. On 01.04.2003, he left the house of her

parents and never returned back. Thereafter, several attempts have been

made to rehabilitate the complainant in the house of the petitioner but all
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failed. The dowry articles have also not been returned so far. The trial Court

framed the charge under Sections 494, 406 and 498-A IPC, however, the

revisional Court set aside the charge under Section 494 IPC as there was no

allegation that the petitioner had solemnized marriage with Narinder Kaur.

Now only question remains with regard to offence under

Sections 406 and 498-A IPC.

It is not the case of the petitioner that after he left the house of

his in-laws on 01.04.2003, he made many attempts to get his wife back in

the matrimonial house. The minor child is staying with the complainant

since 01.04.2003. Even if the petitioner had shifted to the house of his

in-laws in the year 2003 and before that the complainant had been staying in

her matrimonial house. Moreover, it is a question of evidence whether the

misappropriation of dowry articles was done by the petitioner or not.

The allegation of Section 406 IPC is a continuing offence as

held by this Court in case Mastan Singh Vs. Jaswinder Singh Zora Singh

Sandhu, 2001(4) R.C.R. (Criminal) 2 that unless and until the

misappropriated dowry articles are returned, it would amount to continuing

of the offence and bar to take cognizance under 468 IPC would not be

applicable. In paragraph 5 of the said judgment, the Court has observed as

under: –

“The respondents have been summoned to face their trial under
Section 406, IPC. The complaint had to be filed within 3 years as laid
down in Section 468 Cr.P.C. In the present case though the transition took
place between the parties after 4.5.1991 yet the cause of action to file the
complaint arose only when the respondents refused to make payments of
the amounts due from them to the petitioner on 8.9.1996 as the offence of
criminal mis- appropriation is a continuing offence, which continues until
the property is restored to its true owner. For this view of mine, I seek
support from the observations contained in Balram Singh v. Sukhwant
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Kaur and another, 1991(2) CLR 107. The complaint was, therefore,
within time as observed by their Lordships of the Hon’ble Supreme Court
in Smt. Rashmi Kumar v. Mahesh Kumar Bhada, 1997(1) Apex Court
Journal 386 : 1999(2) RCR(Crl.) 43 (SC) and Balram Singh’s (supra).”

This Court in Mohinder Singh Vs. The State of Punjab and

another, 2012(3) R.C.R. (Criminal) 632 has examined the case where the

misappropriation of rice and paddy, it was held that unless the

misappropriated rice is returned, the offence would be a continuing offence

and the trial Court has vast power to take cognizance of an offence after the

expiry of period of limitation if it is satisfied on the facts and in the

circumstances of the case that the delay has been properly explained or it is

necessary so to do in the interest of justice.

“As depicted hereinabove, according to the prosecution that
PUNSUP has entrusted the A-class quality paddy to the firms of
petitioners-accused for milling, which was acknowledged by them. Instead
of returning the same quality rice of the required quantity, the indicated
firms returned a very less quantity (weight) of rice, that too, of very
inferior quality. Meaning thereby, they have not returned the entire A-class
quality rice till today, cheated and misappropriated the PUNSUP. That
means, since the petitioners- accused did not return the complete stock of
A-class quality rice till today, so, the commencement of the crime is still
continuing. In that eventuality, a fresh period of limitation shall begin to
start at every moment of the time, during which, the offence continues, as
envisaged under section 472 Criminal Procedure Code and question of bar
of limitation would not apply to the present case. Moreover, the trial Court
has vast power to take cognizance of an offence after the expiry of period
of limitation if it is satisfied on the facts and in the circumstances of the
case that the delay has been properly explained or it is necessary so to do
in the interest of justice. Therefore, question of limitation under section
468 Criminal Procedure Code does not arise at all at this stage in this case,
as (contrary) urged on behalf of the petitioner (in 2nd case).”

This Court in Hussan Lal Vs. State of Punjab, 2002(1)

R.C.R. (Criminal) 806 held in a case of misappropriation of dowry articles
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with a limitation to file a complaint of three years that the Court is

competent to take cognizance even after a period of limitation under

Section 473 Cr.P.C. In paragraph Nos.9 and 10, the Court has observed as

under: –

“9. In Arun Vyas v. Anita Vyas, 1999(20 RCR (Criminal) 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 Criminal Procedure Code 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 Criminal Procedure Code, 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

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Criminal Procedure Code Furthermore, the offence under Section 498A
Indian Penal Code being a continuous offence, it could not be said that the
present complaint under Sections 406/498-A Indian Penal Code 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) Criminal Procedure Code read
with Section 473 Indian Penal Code.”.

After hearing the learned counsel for the parties, going through

the above-said judgments, this Court is of the considered view that in

criminal cases, it is usually seen that after the relationship, the husband and

wife get separated, an attempt was made to reduce the legal right of the

child and wife, by transferring the land in the name of the family members.

In the present case as per the allegations in the FIR it was alleged that

brother of the present petitioner-Jaswinder Singh was making an attempt to

take the land of the petitioner on account of the matrimonial dispute. The

complainant has one son from this marriage.

Keeping in view the facts of the present case, the order framing

charge, at this stage, cannot be quashed simply on the ground of limitation.

Offence under Sections 406 and 498-A IPC are continuing offence and it

would be the trial Court, who after going through the evidence, can return

the appropriate finding with regard to the above-said offences.

Since there is no merit in the present revision petition,

therefore, the same is hereby dismissed.

May 19, 2017 ( RITU BAHRI )
naresh.k JUDGE
Whether speaking/reasoned Yes
Whether reportable No

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