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S.K. Bhalla & Ors. vs State Of Nct Of Delhi & Anr. on 10 December, 2010

Delhi High Court S.K. Bhalla & Ors. vs State Of Nct Of Delhi & Anr. on 10 December, 2010Author: Ajit Bharihoke

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: December 09, 2010

Judgment delivered on: December 10, 2010

+ W.P.(Crl.) No. 291-95/2006

S.K.BHALLA & ORS. ….PETITIONERS Through: Ms. Meenakshi Lekhi, Advocate with Ms.

Priti, Advocate.

Versus

STATE OF NCT OF DELHI & ANR. ….RESPONDENTS Through: Mr. Ranjit Kapoor, ASC with Mr. Asim,

Advocate & Mohd. Sharif, Advocate.

Mr. A.J.Bhambhani, Advocate.

CORAM:

HON’BLE MR. JUSTICE AJIT BHARIHOKE

1. Whether Reporters of local papers

may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be

reported in Digest ?

AJIT BHARIHOKE, J.

1. Vide this petition under Article 226 of the Constitution read with Section 482 Cr.P.C., the petitioners have prayed for quashing of the FIR No. 314/2005, under Section 498A IPC, P.S. Lodhi Colony on the ground that the FIR is an abuse of process of law and it is hopelessly time barred.

W.P. (Crl.) No.291-95/2006 Page 1 of 13

2. Petitioner No. 1 is the husband of respondent No. 2, petitioner No. 2 is her (respondent No.2) mother-in-law, petitioners No. 3 & 4 are sisters-in-law of respondent No. 2 and petitioner No. 5 is the husband of petitioner No. 4.

3. Briefly stated, facts relevant for disposal of present petition are that FIR No. 314/2005 under Section 498A IPC was registered at P.S. Lodhi Colony on 15th November, 2005 on the basis of a written complaint dated 04th November, 2004 addressed by the respondent No. 2 to the In-charge, C.A.W. Cell, Amar Colony, Lajpat Nagar. The relevant portion of the FIR reads thus:

“Sir, it is requested that the applicant Smt. Suman W/o Sh. S.K.Bhalla D/o Sh. Ram Lal R/o 239, Aliganj, Kotla Mubarakpur, New Delhi got married with Sh. S.K.Bhalla S/o Sh. Ram Dev Bhalla on 04/04/1992 as per Hindu rites and ceremonies and dowry and presents. After marriage, I came to my marital home at J-55, Karbala, B.K.Dutt Colony, Jor Bagh Lane, New Delhi. That after few days of the marriage, I was started taunting for bringing less dowry and my husband, mother-in-law and sisters-in-law namely Usha and Sushma started beating me. I told them that my family had given sufficient dowry beyond their capacity and I cannot tell them for more dowry. My condition for worsened and my sisters-in-law said that their brother is scion and working on government post and our brother was approached with good amount and could have got more beautiful girl then you and bring jewellery and Rs.1 lac and Maruti Car and only then, you would be given status of daughter-in-law or otherwise, you would be beaten and tortured in the same way. After few days, the applicant went to her parental home. After going to my parental home, I told to my parents and my family members talked to my in-laws but they misbehaved with my family members and said that they would not keep me till the fulfillment of their demands of dowry. You cannot do anything against us. We had earlier left our paternal aunt and brought her back only after 12 years and likewise, we W.P. (Crl.) No.291-95/2006 Page 2 of 13 would not take her back till payment of our demanded amount. On my repeatedly telling them that the same would bring insult to them, my husband took me back and I live there for 1½ months and again turned me out of home after beatings. I was pregnant at that time. I again came back to my paternal home in November 1992 and the applicant has been continuously living there since then. During the period, my family members with other relatives tried for my return to marital home but till date, no satisfactory response received. 1 daughter begot from me on 05/07/1993 and family members informed my in-laws about the same but my in-laws did not visit even to see the daughter. My family members asked my brother-in-laws Satish and Rajender for trying but even they threatened us to kill and said that we were thinking of turning you out of the home from that day itself by whatever reason and shall kill me if tried to come back. If you want to come back, you have to bring jewellery for our wives, Rs. 1 lac and Maruti Car for S.K.Bhalla and only then, you can live in the house. Me and my family members talked to Rajender @ Raja my brother-in-law but he leveled character allegations against me and beat my family members and relatives by saying that no harm is caused to him by committing one or two murders. We shall kill you and turned us out after beatings. I came to my parental home from marital home in November 1992. I came in 3 plain three clothes at that time and since thereafter, my entire stridhan and jewellery is with my in-laws but they are not returning the same despite demands. As such, it is requested to your goodself that in the light of the above facts and circumstances, my stridhan, jewellery, clothes may be got returned to me from my-laws, my husband S.K.Bhalla, mother-in-law Smt. Kamla, sisters-in-law Smt. Usha and Sushma, brother-in- law Rajender @ Raja and appropriate action may be taken against them by protecting my life. I shall be grateful. Dated 04/11/2004”.

4. Feeling aggrieved by the registration of the above referred FIR against them, the petitioners have filed instant petition seeking quashing of the FIR on the ground that the FIR is highly belated and time barred and it amounts to the abuse of process of law. W.P. (Crl.) No.291-95/2006 Page 3 of 13

5. Learned counsel for the petitioners has submitted that the FIR in question is liable to be quashed for the reason that it is highly belated and hopelessly time barred. Dilating on the argument, learned counsel for the petitioners has submitted that on perusal of the FIR, it would be seen that the respondent no.2 (complainant) has made allegations pertaining to the commission of offences under Section 498A IPC and 406 IPC, which offences are respectively punishable with imprisonment up to a maximum period of three years, as such, in view of Section 468 Cr.P.C., the period of limitation for these offences is 03 years whereas admittedly, the complaint, which is the basis of FIR, was filed 12 years after the complainant left her matrimonial home, in November, 2004. Therefore, it is urged that the FIR be quashed as it is bound to be dismissed being hopelessly barred by limitation. Learned counsel for the petitioners further contended that otherwise also, taking into account that the complaint has been lodged after a period of 12 years of the complainant leaving her matrimonial home, it is apparent that it is motivated and is an abuse of process of law. On this count also, learned counsel for the petitioners urged that the FIR is liable to be quashed. In support of their contention, petitioners have relied upon the judgment of Supreme Court in the matter of B.S.Joshi & Ors. Vs. State of Haryana & Anr., AIR 2003 SC 1386, Gour Hari Mondal Vs. The State, Crimes IX-1987(3), State of Punjab Vs. W.P. (Crl.) No.291-95/2006 Page 4 of 13 Sarwan Singh, AIR 1981 SC 1054, Sunil Aggarwal & Etc Vs. Commr. of Police & Ors., CDJ 2002 DHC 2002, Shadi Lal & Anr. Vs. Smt.Anita & Ors., CDJ 2006 DHC 519, Sangeeta Kalra Vs. State, CDJ 2007 DHC 715, Basant Kaur & Ors. Vs. State, 101 (2002) DLT 470 and Pritam Singh & Ors. Vs. State of Delhi & Anr., 1999 II AD (DELHI) 733.

6. Refuting the contention, learned APP as well as learned counsel for the respondent No. 2 submitted that the submissions made by learned counsel for the petitioners are misconceived. It is submitted that the offence under Section 406 IPC is a continuing offence till the misappropriated property is returned back to the rightful owner. Learned counsel argued that Section 472 of the Code of Criminal Procedure in Chapter XXXVI, which provides for Limitation for taking cognizance of certain offences, deals with the cases pertaining to the continuous offences and it provides that in case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues. Thus, it is urged that till the ‘Stree-dhan’ of the complainant is returned to her, the offence under Section 406 IPC continues and fresh period of limitation continues to run at every moment. As such, Section 468 Cr.P.C. has no application in the present case. It is also contended on behalf of the learned counsels that though the court has ample jurisdiction to quash the criminal W.P. (Crl.) No.291-95/2006 Page 5 of 13 proceedings or FIR under Section 482 Cr.P.C. to prevent the abuse of process of law and promote the interest of justice, yet this power has to be exercised with due care and caution and generally having regard to facts and circumstances of the case. If an efficacious remedy is available to the accused/petitioner, inherent powers generally should not be invoked, unless there are strong grounds for interference. Learned counsel submitted that in the instant case, the charge sheet against the petitioners has been filed on 03rd May, 2006 and since the offences for which the petitioners have been challaned call for warrant trial procedure, the petitioners, under Section 239 of the Code of Criminal Procedure would get sufficient opportunity to make their submissions against the framing of charge before the Magistrate concerned, as such, it cannot be said that the petitioners do not have equally efficacious remedy available to them. Thus, this is not a fit case to exercise the writ jurisdiction or to invoke the inherent powers under Section 482 Cr.P.C.

7. I have considered the rival contentions. In the matter of B.S.Joshi & Ors. (supra), Supreme Court, while examining the scope of powers vested in High Court under Section 482 Cr.P.C. or extraordinary powers under Article 226 of the Constitution, held thus:

“It is, thus, clear that Madhu Limaye‟s case does not lay down any general proposition limiting power of quashing the criminal proceedings or FIR or complaint as vested in Section W.P. (Crl.) No.291-95/2006 Page 6 of 13 482 of the Code of Criminal Procedure or extraordinary power under Article 226 of the Constitution of India. We are, therefore, of the view that if for the purpose of securing the ends of justice, quashing of FIR becomes necessary, Section 302 would not be a bar to the exercise of power of quashing. It is, however, a different matter depending upon the facts and circumstances of each case whether to exercise or not such a power”.

8. Similarly in the matter of B.S. Joshi Vs. State of Haryana, AIR 2003 SC 1386, the Supreme Court, observed thus: “In State of Karnataka v. L. Muniswamy & Ors. [(1977) 2 SCC 699], considering the scope of inherent power of quashing under Section 482, this Court held that in the exercise of this wholesome power, the High Court is entitled to quash proceedings if it comes to the conclusion that ends of justice so required. It was observed that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature. This Court said that the compelling necessity for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. On facts, it was also noticed that there was no reasonable likelihood of the accused being convicted of the offence”.

9. There can be no dispute with the proposition of law enunciated in the above cited judgments. It is true that Section 482 of the Code of Criminal Procedure gives inherent powers to the High Court to make such orders as may be necessary to prevent the abuse of process of law or to secure the ends of justice. However, Section 482 does not confer unlimited jurisdiction upon the High Court and W.P. (Crl.) No.291-95/2006 Page 7 of 13 the inherent powers, being in the nature of exception and not a rule, should be used sparingly and with great care and caution. Even in the above cited judgments, Supreme Court has held that whether to exercise the inherent power or not, would depend upon the facts and circumstances of the case.

10. In the matter of Arun Shankar Shukla Vs. State of U.P., AIR 1999 SC 2554, the Supreme Court while dealing with the inherent power of the High Court under Section 482, inter alia, observed thus:

“2. …It is true that under Section 482 of the Code, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any court or otherwise to secure the ends of justice. But the expressions “abuse of the process of law” or “to secure the ends of justice” do not confer unlimited jurisdiction on the High Court and the alleged abuse of the process of law or the ends of justice could only be secured in accordance with law including procedural law and not otherwise. Further, inherent powers are in the nature of extraordinary powers to be used sparingly for achieving the object mentioned in Section 482 of the Code in cases where there is no express provision empowering the High Court to achieve the said object. It is well-nigh settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provision of the Code…..”

11. In the matter of State of Punjab Vs. Kasturi Lal, 2004 CriLj 3866, the Supreme Court observed thus:

“10. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely: (i) to give effect to W.P. (Crl.) No.291-95/2006 Page 8 of 13 an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice. While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist.”

12. From the above, it is obvious that though High Court has vide powers under Section 482 Cr.P.C. to pass an order to prevent the abuse of process of law or to secure the ends of justice, this power should be used sparingly and with due care and caution and only when such an exercise is justified under the provisions of in Section 482 Cr.P.C. Thus, ultimately, it is to be seen from the facts of this case whether it requires interference by this Court in exercise of powers under Section 482 Cr.P.C.

13. Learned counsel for the petitioners has submitted that as per the allegations in the FIR, the complainant had left her matrimonial home way back in the year 1992. Therefore, if at all any offence under Section 498A and 406 IPC was committed, it was committed W.P. (Crl.) No.291-95/2006 Page 9 of 13 in the year 1992 or prior to that. The complaint, which is the basis of FIR was admittedly filed in the November, 2004. Therefore, it is clear that the FIR of this case has been registered after a lapse of about 12 years from the date of commission of offence. Learned counsel submitted that both the offences punishable under Sections 498A IPC and 406 IPC are punishable for imprisonment up to three years, therefore, the period of limitation for taking cognizance of said offences as provided in Section 468 Cr.P.C. is three years. Thus, the present FIR is hopelessly time barred and the cognizance of the case on the basis of said charge sheet cannot be taken in view of Section 468 Cr.P.C., which implies that this case cannot result in conviction, as such, the FIR is an abuse of process of law.

14. No doubt Section 468 Cr.P.C. provides limitation of three years for taking cognizance of the offences which are punishable for the maximum imprisonment of three years. This provision, however is of no help to the petitioners for the reason that as per the allegations in the FIR, the petitioners have also committed an offence punishable under Section 406 IPC by misappropriating the ‘Stree-dhan’ of the complainant entrusted to them and not returning it to her despite of repeated demands. Section 472 Cr.P.C. is relevant in this case, which reads thus:

“472. Continuing offence.–In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues” W.P. (Crl.) No.291-95/2006 Page 10 of 13

15. Perusal of the FIR would show that the complainant has made specific allegation that despite her demands, the petitioners have failed to return her ‘Stree-dhan’ and jewellery. She has not specified the date on which the demand was made. Section 406 of IPC deals with the offence of criminal misappropriation and the aforesaid offence is complete when the entrusted property is not returned by the persons who were entrusted with the property on demand by the rightful owner. Thus, though the FIR discloses the commission of offence under Section 406 IPC, it does not specify on which date the demand for return of „Stree-dhan’ was made as such it is not clear when the offence of criminal misappropriation was complete. This obviously is a subject matter of investigation and evidence pertaining to the same is to be seen in the charge sheet. Otherwise also, even if it is presumed that demand for return of „Stree-dhan’ was made in November, 1992, then also, till the „Stree-dhan’ of the complainant is returned to her, the misappropriation by the petitioners continues. Thus, fresh period of limitation shall begin to run at every moment of the time during which the offence continues. Therefore, prima facie, it cannot be said that the FIR pertaining to the offence punishable under Section 406 IPC is time barred. It is well settled that delay in filing of FIR by itself cannot be a ground for discharge or acquittal of the accused. There can be many reasons for delay in filing of the complaint. It would not be W.P. (Crl.) No.291-95/2006 Page 11 of 13 appropriate to speculate on this aspect. If the complainant/prosecution is able to explain the delay, then the court would be well within its rights to act on the evidence led during trial and that explanation, if any, can come only during trial. Thus, under the circumstances, I do not find any merit in the contention of learned counsel for the petitioners that the offence complained of in the FIR is barred by limitation in view of Section 468 Cr.P.C.

16. I have gone through the judgment of Gour Hari Mondal (supra) cited by the petitioners and I find myself unable to agree with the aforesaid judgment for the reason that in the aforesaid judgment, learned Judge has not taken into account Section 472 Cr.P.C., which deals with computation of limitation in respect of continuing offences. Similarly, the judgment in the matter of State of Punjab v. Sarwan Singh (supra) is of no avail to the petitioners because the facts of the case are not detailed in the judgment and it is not clear whether or not it was a case of continuing offence of criminal misappropriation by the accused to attract Section 472 Cr.P.C. Similarly, other judgments cited by the petitioners are based upon their peculiar facts and are of no help to the petitioners.

17. In view of the above, I find no merit in the plea of the petitioners that the offence complained of in the FIR is time barred and therefore the FIR ought to be quashed. Otherwise also, charge W.P. (Crl.) No.291-95/2006 Page 12 of 13 sheet in this case has been filed and the offences punishable under Sections 498A and 406 IPC, being the cases to be tried under warrant trial procedure, the petitioners would get adequate opportunity to make their submissions against charge before the Magistrate concerned under Section 239 Cr.P.C. Since efficacious remedy is available to the petitioners under the scheme of the Code of Criminal Procedure, they cannot be permitted to jump the hierarchy of courts and straightway approach the High Court under Section 482 Cr.P.C. for quashing of the FIR. If at all evidence collected during investigation is not sufficient to justify framing of charge, the petitioners can always bring this fact to the notice of Trial Court. Therefore, I find no reason to interfere in the trial proceedings by invoking inherent powers under Section 482 Cr.P.C.

18. The petition is dismissed accordingly.

(AJIT BHARIHOKE)

JUDGE

DECEMBER 10, 2010

akb

W.P. (Crl.) No.291-95/2006 Page 13 of 13

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