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Smt. Kanak Lata Saxena & Ors. vs State Of Nct Of Delhi & Ors on 15 January, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 15th January, 2019

+ W.P.(CRL) 111/2019
SMT. KANAK LATA SAXENA ORS. ….. Petitioner

Represented by: Samdarshi Sanjay, Advocate.

versus

STATE OF NCT OF DELHI ORS ….. Respondent

Represented by: Mr. Ashish Aggarwal, ASC with ASI
Sunita, PS CWC/Nanakpura.

CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

Crl.M.A. No. 757/2019 (Exemption)

Allowed, subject to all just exceptions.

W.P.(CRL) 111/2019 and Crl.M.A. No. 756/2019

1. By this petition, the petitioners seek quashing of FIR No. 179/2016
under Sections 498A/406/34 IPC investigated at PS Nanak Pura CAW Cell.

2. The grounds urged by the petitioners seeking quashing of the FIR in
question are firstly that there is violation of the standing order No. 281
which provides that the list of dowry articles given at the time of marriage
be obtained and bills/cash memos in support of the said articles be procured
and placed on file.

W.P.(CRL) 111/2019 Page 1 of 9

3. The second ground urged by the learned counsel for the petitioners is
that though the complaint was filed at CAW Cell East Delhi it was
transferred for investigation on 22nd December, 2015 to PS Nanak Pura
without assigning any reason.

4. The third ground urged is that the cognizance is barred by the
limitation and it has been taken beyond the period of three years.

5. The fourth ground urged is that the Court at Dwarka trying the
offence has no territorial jurisdiction and hence the FIR in question and
proceedings pursuant thereto are liable to be quashed.

6. The brief facts of the case are that the petitioner No. 2 and respondent
No. 3 were married on 7th March, 2014 and lived as husband and wife
initially at Vasant Kunj and later shifted to Preet Vihar, Delhi till 22 nd
August, 2015. Since the parties could not get along together a complaint was
filed by respondent No. 3 with the CAW Cell at Patparganj, on 22 nd
September, 2015. On the said complaint an FIR was registered on 5 th
October, 2016 at PS Nanak Pura as the complaint had been transferred to PS
Nanak Pura on 22nd December, 2015. After the investigation was carried out
charge sheet was filed for offences punishable under Sections 498A/406/34
IPC at the Dwarka Court before the learned Metropolitan Magistrate having
territorial jurisdiction over PS Nanak Pura.

7. The allegations of respondent No. 3 in case FIR No. 179/2016
registered on 5th October, 2016 based on the complaint of respondent No. 3
to the CAW Cell Patparganj are of entrustment of jewellery to the mother-
in-law immediately at the time of vidai and after the wedding instead of the
complainant being taken to the husband’s home at Munirka she was taken to
Ghaziabad at the house of the mausi of the husband. It is alleged that the

W.P.(CRL) 111/2019 Page 2 of 9
petitioner No. 1, i.e. mother-in-law used to taunt the complainant for light
weight jewellery articles and abuse her parents with abusive words. After
the ceremonies were finished at Ghaziabad House the jewellery given to the
complainant, to be worn was taken aback by mother-in-law and it is the case
of the respondent No. 3 that the said jewellery is in the custody of the
petitioners till date. It is alleged that the complainant was harassed every
single day by not giving food to eat, leaving her alone in single room and
being taunted and tortured for not getting good dowry. The complainant
parents were forced to give a ground floor portion or terrace portion in the
mother’s house and items like AC, TV, furniture etc. were demanded.

8. It is alleged that the behaviour of the petitioner No. 2 at Shimla was
also not proper and after Shimla she was taken to her husband’s permanent
house at Aligarh where again she was tortured in the similar manner. It is
further alleged that in the month of June the husband shifted their leased
house from Munirka to Preet Vihar without her knowledge while she was
staying at her mother’s house in Laxmi Nagar.

9. Later from the lady residing on the ground floor it was revealed that
her husband and in-laws had gone to Aligarh and she did not know when
they would return. The whereabouts of the complainant’s husband were not
even known in his office. Later she got information that they had gone to
Aligarh to celebrate Rakhi and would return on 30 th August but they did not
return nor informed about their returning. None answered the calls and the
house was locked and all her belongings and the belongings of the child,
hospital vaccination report etc. was kept inside the Preet Vihar house.

10. The allegations of the complainant continue and in these
circumstances she was constrained to file the complaint on 22nd September,

W.P.(CRL) 111/2019 Page 3 of 9
2015 to CAW Cell. Contention of learned counsel for the petitioner that
standing order No. 281 is violated deserves to be rejected for the statement
of learned ASC for the State based on record that the list of dowry articles
were duly furnished by the complainant, further in support of her allegation
of dowry articles photographs were collected.

11. As regards the contention that the complaint from CAW Cell
Patparganj could not be transferred to PS Nanak Pura also deserves to be
rejected for the reason that CAW Cell are special units of the police
department for dealing with cases relating to women and particularly the
matrimonial offence and though CAW Cell Patparganj would have territorial
jurisdiction to investigate for offences committed within its territorial
jurisdiction, however, CAW Cell Nanak Pura has an over arching
jurisdiction for all over Delhi and can investigate the matrimonial offence
relating to matrimonial dispute all over Delhi.

12. From the facts as noted it is apparent though cognizance has been
taken during the period of limitation but even if it is beyond the period of
limitation for the reason Section 406 IPC is a continuing offence and till date
the jewellery articles are returned the offence continues to be committed.
Further the complaint was filed immediately after petitioner No. 2 and his
family members deserted the complaint and their whereabouts were not
known. Hence it cannot be said that the cognizance is barred by limitation.

13. In (1993) 3 SCC 4 Vanka Radhamanohari Vs. Vanka Venkata Reddy
the Supreme Court dealing with the bar of Section 468 Cr.P.C.in relation to
the matrimonial offences held as under:

“7. It is true that the object of introducing Section 468 was to
put a bar of limitation on prosecutions and to prevent the

W.P.(CRL) 111/2019 Page 4 of 9
parties from filing cases after a long time, as it was thought
proper that after a long lapse of time, launching of prosecution
may be vexatious, because by that time even the evidence may
disappear. This aspect has been mentioned in the statement
and object, for introducing a period of limitation, as well as by
this Court in the case of State of Punjab v. Sarwan
Singh [(1981) 3 SCC 34 : 1981 SCC (Cri) 625 : AIR 1981 SC
1054]. But, that consideration cannot be extended to
matrimonial offences, where the allegations are of cruelty,
torture and assault by the husband or other members of the
family to the complainant. It is a matter of common experience
that victim is subjected to such cruelty repeatedly and it is
more or less like a continuing offence. It is only as a last resort
that a wife openly comes before a court to unfold and relate
the day-to-day torture and cruelty faced by her, inside the
house, which many of such victims do not like to be made
public. As such, courts while considering the question of
limitation for an offence under Section 498-A i.e. subjecting a
woman to cruelty by her husband or the relative of her
husband, should judge that question, in the light of Section 473
of the Code, which requires the Court, not only to examine as
to whether the delay has been properly explained, but as to
whether “it is necessary to do so in the interests of justice”.”

14. In the decision reported as 2003 (68) DRJ 437 Asha Ahuja Vs. Rajesh
Ahuja Ors. this Court dealing with the accused being discharged on the
ground of limitation under Section 468 Cr.P.C. read with Section 473
Cr.P.C. held that Section 473 Cr.P.C. enjoins a duty upon the Court to
examine not only as to whether delay in filing of the FIR is explained or not
but also whether it is the requirement of justice to condone or ignore the
delay and in matrimonial cases if the bar of Section 468 Cr.P.C. is pleaded
the Court is required to apply its mind on the question as to whether it is
necessary to condone the delay in the interest of justice. In the said case

W.P.(CRL) 111/2019 Page 5 of 9
this Court considered the following reasons in the complaint to condone the
delay as under:

“6. A perusal of the complaint filed by the petitioner in the
present case shows that soon after her marriage, the
respondents had started taunting and harassing her for
bringing insufficient dowry and warned her of serious
consequences if more articles like refrigerator, washing
machine, scooter etc. were not brought. She was humiliated,
abused and tortured by them and was literally treated as a
maid servant. She was given beatings also. She lost her health
and in the meanwhile, became pregnant but before her
delivery, she was forced to leave her matrimonial home. Her
husband changed his religion even with a view to re-marry but
thereafter, was made to re-convert and become a Hindu. The
petitioner came back to her matrimonial home in March, 1987
but after a few weeks again, her harassment for bringing more
dowry articles commenced. In August, 1991, she was again
thrown out of her matrimonial home along with her children
and thereafter, continuous efforts were made to persuade her
husband and in-laws to take her back along with the children
but the respondents kept on dilly-dallying. Her husband filed a
suit for divorce as well as custody of children and thereafter
alone the complainant-petitioner felt compelled to initiate
present proceedings against her husband and family members.
Considering the circumstances under which the complainant-
petitioner had been put and her constant desire to go back to
her matrimonial home, it was a fit case in which the Courts
below ought to have condoned/ignored the delay in the filing
of the complaint under Section 498-A IPC.”

15. Further, Supreme Court in (1999) 4 SCC 690 Arun Vyas Vs. Anita
Vyas held that the essence of the offence in Section 498-A is cruelty as
defined in the explanation appended to the said section and is a continuing
offence and on each occasion on which the respondent was subjected to
cruelty a new starting point of limitation starts. It was held that :

W.P.(CRL) 111/2019 Page 6 of 9

“13. 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. The last act of cruelty was
committed against the respondent, within the meaning of the
explanation, on 13-10-1988 when, on the allegation made by
the respondent in the complaint to the Additional Chief
Judicial Magistrate, she was forced to leave the matrimonial
home. Having regard to the provisions of Sections 469 and
472 the period of limitation commenced for the offences under
Sections 406 and 498-A from 13-10-1988 and ended on 12-10-
1991. But the charge-sheet was filed on 22-12-1995, therefore,
it was clearly barred by limitation under Section 468(2)(c)
CrPC.”

16. Further dealing with Section 406 IPC this court in 2010 SCC OnLine
Del 4384 S.K.Bhalla Ors. Vs. State of NCT of Delhi Anr. held that
Section 406 being a continuing offence as defined under Section 472 IPC
the bar under Section 468 Cr.P.C. was not applicable. It was held that :

“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) 111/2019 Page 7 of 9

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 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.”

17. Since the parties married in Delhi and the main allegations of
harassment are at Delhi, entrustment of jewellery is also at Delhi, the goods
are being accounted for at Delhi, cognizance taken by the learned Trial

W.P.(CRL) 111/2019 Page 8 of 9
Court would not be beyond the territorial jurisdiction.

18. Petition and application are dismissed.

(MUKTA GUPTA)
JUDGE
JANUARY 15, 2019
‘yo’

W.P.(CRL) 111/2019 Page 9 of 9

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