GURIHARAN SINGH v. SMT. GURSHARAN KAUR — 1989 DIGILAW 147 (DEL)

P. K. Bahri, J. ( 1 ) THIS petition has been brought under Section 482 of the Criminal Procedure Code seeking the quashment of the complaint dated 12/7/1984 pending in the Court of Shri Z. S. Solanki, Metropolitan Magistrate under Section 6 of the Dowry Prohibition Act 1961. ( 2 ). Gursharan Kaur, respondent had filed a complaint dated 7/7/1984 against the petitioner Gursharan Singh and also against Harbans Singh and his wife Darshan Kaur with the allegations that complainant was married to Gursharan Singh on 7/7/1981 and that all the accused at the time of the settlement of the marriage through one Ajit Singh, retired Sub Inspector of Delhi Police had demanded dowry articles namely T. V. Fridge, Scooter or Rs. 20,000. 00 and 21 sarees/suits for the girl and two suits for the husband, one suit for father-in-law, two suits for mother-in-law, 51 utensils, table fan and number of other articles which are generally given in dowry. It is pleaded that complainant s father had expressed his inability to give TV, Fridge and Scooter or Rs. 20,000. 00 but had agreed to give remaining articles of dowry as consideration for marriage. It was pleaded that the parents of the complainant gave various articles of dowry as consideration of marriage but after three-four months of the marriage, the accused started harassing the complainant for not bringing the sufficient dowry and required her to put pressure on her parents to give remaining articles of, dowry. It is pleaded that under pressure of the accused, complainant managed to get Rs. 1,000. 00 in cash on two occasions from her parents and given the same to her husband. It was then mentioned that a daughter was born out of this wedlock on 28/6/1982 but it is the complainant s parents who bore all the expenses of delivery and complainant was beaten, insulted and abused and turned out of the house in her three clothes on 2/7/1983 It was further mentioned that on pursuation of Gursharan Single she again came back and Jived wish the husband but harassment continued at the bands ofer husband and on 17/7/1983 she made a report io the police for getting her dowry articles returned from the accused and with the interference of some panchayat people, some of the articles of dowry were returned. She pleaded that rest of the dowry articles as shown in Mark x in Annexure a filed alongwith the complaint had not been returned and thus the accused had committed an offence punishable under Section 6 of the Act. ( 3 ). The accused have been summoned to face trial under said Section 6 of the Dowry Prohibition Act 1961. ( 4 ). The learned counsel for the petitioner has argued that the complaint filed in the case was barred by time and thus the whole of the proceedings pending before the Magistrate on the basis of that complaint should be quashed. ( 5 ). The learned counsel for the respondent on the other hand has contended that the offence under Section 6 of the Act is a continuing offence and thus the period of limitation prescribed in Section 7 (b) is not applicable to such an offence and therefore the complaint is not barred by limitation and in the alternative he has argued that from the facts disclosed in thecomplaint and the evidence led before summoning of the accused clearly make out a case that accused have at least committed the offence punishable under Section 406 of Indian Penal Code and the accused could be tried for the said offence. ( 6 ). So, the first question to be decided in the present case is whether the complaint made for trial of the offence under Section 6 of the Dowry Prohibition Act, 1961 is barred or not. Section 6 (1) reads as follows : 6. (1) 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 within one year after the date of marriage ; or (b) if the dowry was received at the time of or after the marriage ; within one year after the date of its receipt ; or (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. Section 7 of the Act lays down that notwithstanding anything contained in the Code of Criminal Procedure 1898, no Court shall take cognizance of any such offence except that a complaint made within one year from the date of the offence. Reading the above provisions, it is clear that the offence under Section 6 comes to be committed as soon as a dowry is received by any person other than the woman in connection with whose marriage it is given and that person fails to transfer the said dowry to the said woman within one year after the date of his marriage if the dowry was received before marriage and within one year after the date of its receipt if the dowry was received at the time of or after the marriage. The offence is complete when the periods specified above expire and Section 7 (b) make it very clear that such an offence cannot be taken cognizance of unless a complaint is made within one year from the date of the offence. I do not understand how the offence enumerated in Section 6 of the Act read with Section 7 (b) of the Act could be treated as a continuing offence. ( 7 ). The learned counsel for the respondent has cited Bhagirath Kanoria and others v. State of M. P. , AIR 1984 SC 1688 in support of his contention that offence under Section 6 of the Act should be treated as a continuing offence for which there cannot be any period of limitation. In the case before the Supreme Court provisions of Section 14 and 38 of the Employees Provident Fund and Family Pension Funds Act 1952 came up for consideration. Section 38 of the said Act laid down that the employer shall before paying the Member his wages in respect of any period or part of period for which contribution of payable, deduct the employees contribution from his wages which together with his own contribution. . . . . . shall within 15 days of the close of every month pay the came to the fund and Section 14 lays down the penalties to be imposed if any contravention was to be made in respect of any provisions of the Act. . . . . . shall within 15 days of the close of every month pay the came to the fund and Section 14 lays down the penalties to be imposed if any contravention was to be made in respect of any provisions of the Act. The question which arose for decision beforethe Supreme Court was whether the offence contemplated by Section 38 read with Section 14 of the said Act was a continuing offence or not. It was held by the Supreme Court that the question whether the particular offence is a continuing offence mus,t necessarily depend upon the language of the statute which creates that offence, the nature of the offence and above all, the purpose which is intended to be achieved by constituting the particular Act as an offence. It was held that failure to pay the employees contribution before the due date, considering the object and purpose of that provision which is to ensure the welfare of the workers it cannot be said that the offence is not of a contiuning nature However, this judgment is distinguishable because under the provisions of the Employees Provident Fund and Family Pension Fund Act there is no particular section which lays down any limitation within which the cognizance of the complaint is to be taken. In the Dowry Prohibition Act 1961 there is a clear provision made in Section 7 that no Court shall take cognizance of any such offence except on a complaint made within one year from the date of the offence. Thus statute really contemplates a particular date of the offence from which point the limitation for filing the complaint has to commence. The Legislature did not intend that an offence under the said Act should be treated as a continuing offence. If this had been the intention of the Legislature then there was no necessity for the Legislature to have put in Section 7 in the Act prescribing the period of limitation for filing of complaint. The learned counsel for the petitioner has then referred to Swam Lal v. Smt. Bimla Devi, 1982 Chandigarh Criminal Cases 6 (HC ). This judgment is based on the view taken by the same Punjab andharyana High Court in Criminal Misc. The learned counsel for the petitioner has then referred to Swam Lal v. Smt. Bimla Devi, 1982 Chandigarh Criminal Cases 6 (HC ). This judgment is based on the view taken by the same Punjab andharyana High Court in Criminal Misc. No. 4981-M of 1977 and the relevant portion from that judgment has been extracted in para 7 of the case which I reproduce: "the further argument is that the offence for the non-return of the owry articles must be held to have been committed on July 20, 1974, and the present complaint by respondent No. 2 having been filed long after the lapse of one year from that date, thetrial Court was not competent to take cognizance of the offence. The argument is quite fallacious on account of two reasons. Section 7 of the Act has since been amended by Punjab Act No. 26 of 1976 which received the assent of the President of India on 12/5/1976 and was published in the Punjab Government Gazette on 20/5/1976. As per this amendment Section 7 of the Act has been modified to the extent that the bar to taking cognizance of an offence upon a complaint made in respect of the offences under Sections 3,4 and 4-8 (as added by amendment ). The result is that there is no such bar for an offence under Section 6 of the Act. Apart from this amendment which merely clarifies the position of law, it is obvious that the non-return of dowry items is not an offence which can be said to have been committed on a particular date only. In fact, it is a continuing offence and as long as the dowry items are not returned, the offence continues. The mere fact that the complaint is not filed within one year of the first date when the cause of action accused, would not absolve the offenders of their responsibility. Even under the amended Criminal Procedure Code, a provision has been made under Section 472 that 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. The amendment to Section 7 has in any case clinched the matter. Even under the amended Criminal Procedure Code, a provision has been made under Section 472 that 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. The amendment to Section 7 has in any case clinched the matter. There is, thus, no substance in the second argument of the learned counsel that the trial 366 Court cannot take cognizance of the offence on account of bar of limitation. " ( 8 ). The bare perusal of the above shows that there has taken place an amendment in the Punjab Act by which the provision of limitation has been removed vis-a-vis the offence covered by Section 6. After referring to this amendment the learned Judge has proceeded to lay down that the offence contemplated under Section 6 of the Act is a continuing offence. I am not in agreement with this proposition of law laid down in this judgment. No discussion has been made with regard to the provisions of Sections 6 and 7 of the Act in order to see whether the Legislature had intended to make the offence under Section 6 of the Act a continuing one. ( 9 ). The learned counsel for the respondent has argued that the laudatory object of enacting Section 6 of the Act was to force the persons who continue to retain the dowry items with them to give the same to the women so that the women folk of this country should have some economic security if they have control over the dowry items, hence, such an offence should be treated as a continuing offence. It is not possible to agree with this contention because if we read Section 6 and Section 7 together, it becomes evident that the offence under Section 6 cannot be treated to be a continuing offence when Section 7 (b) lays down that the complaint has to be made within one year from the date of the offence. The date of the offence is evident from Section ie. if the articles of dowry are not transferred to the woman within one year from the date of the marrige or date of the receipt of dowry articles whichever is applicable, then the offence is complete. The date of the offence is evident from Section ie. if the articles of dowry are not transferred to the woman within one year from the date of the marrige or date of the receipt of dowry articles whichever is applicable, then the offence is complete. So, I hold that offence under Section 6 of the said Act is not a continuing offence and thus the complaint in which the allegations are made for summoning the accused for facing the trial for an offence under Section 6 was barred by limitation because admittedly the marriage took place on 12/7/1981 while the complaint was filed on 12/7/1984, ( 10 ). However, it is clear from the allegations made in the complaint as well as in the evidence led before summoning the accused that the articles of dowry claimed by the complainant have been retained by the accused and thereby the ingredients of the offence punishable under Section 406 Indian Penal Code stood made out. In Pratibha Rani v. Suraj Kumar and anr. AIR 1985 SC 628 , it has been now clearly laid down that articles which are given at the time of the marriage are stridhan of the woman and have to remain in trust with the husband arid the in-laws and if they are not returned on the demand being made, the offence under Section 406 Indian Penal Code can be stated to be committed. It has been held by this Court in Inder Raj Malik and Ors. v. Smt. Sunita Malik, 1987 (1) Chandigarh Law Report, 224 that the Court has full discretion to frame any charge on the basis of evidence produced before it by the complainant including the charge in respect of the offence for which the accused are summoned. In K. Shanmugasundara Nadar v. V. Sadasivarn, AIR 1968 Madras 60, it was held that even if a Magistrate had taken a cognizance of an offence triable as a summon case but the evidence led discloses an offence triable with a warrant case, the Magistrate has power to convert the same case into the warrant case. In K. Shanmugasundara Nadar v. V. Sadasivarn, AIR 1968 Madras 60, it was held that even if a Magistrate had taken a cognizance of an offence triable as a summon case but the evidence led discloses an offence triable with a warrant case, the Magistrate has power to convert the same case into the warrant case. In re Satyanarayma Reddy, AIR 1947 Madras 174 it was held that if initially a charge is framed under particular provisions of the Indian Penal Code, nothing deprives the Magistrate to frame charge on the evidence and the material before him for any other offence which may be prima facie made out. ( 11 ). So, in view of the above discussion I hold that the accused including the petitioner in the present case are not to face the trial for an offence under Section 6 of the Dowry Prohibition Act 1961 as the complaint having been filed beyond the period of limitation as prescribed in Section 6 of the Act could not be looked into. But the evidence on record shows that prima facie case under Section 406 Indian Penal Code stood made out. Hence the Magistrate is directed to proceed against the accused for the offence punishable under Section 406 Indian Penal Code. ( 12 ). Learned counsel for the petitioner also tried to argue that on facts no case is made out against the accused as accused has not retained any of the articles of dowry. The Magistrate had come to the conclusion prima facie from the evidence led before the passing of the order summoning the accused that prima facie some of the articles of dowry are still in possession of the accused and have not been returned. It is not for this Court io reappraise the evidence and come to a different conclusion in its jurisdiction under Section 482 of Criminal Procedure Code. It would be only in the course of trial that Magistrate will have to give findings on merits of the case. I, hence partly allow the petition and quash the summoning order For trial of the accused for an offence punishable under Section 6 of the Dowry Prohibition Act 1961 but I direct that the Magistrate shall proceed against the accused for an offence punishable under Section 406 Indian Penal Code.