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Madhya Pradesh High Court · body

2017 DIGILAW 218 (MP)

Sabir Hussain v. State Of M. P.

2017-02-09

S.K.AWASTHI

body2017
ORDER : The applicant is calling in question the order dated 16-1-2015 passed by Judicial Magistrate First Class, Gwalior in Criminal Case No. 7173/2014, whereby the application filed by the applicant under section 468 of Criminal Procedure Code has been rejected. 2. The facts leading to filing of the present revision application are that the marriage of the applicant was solemnized with the daughter of non-applicant No. 2 Farhat Naqvi on 2-11-2006 as per the Muslim rituals and customs. It is alleged that the applicant and his family members were persistently making demand for dowry and ill treating her, due to which she died on 30-10-2008 in suspicious circumstances. An FIR was lodged against the applicant for the offence punishable under sections 498-A and 306 of Indian Penal Code and a criminal case regarding aforesaid offences is pending in the Sessions Court, Kota, (Rajasthan). Non-applicant No. 2 filed a complaint under section 406 of Indian Penal Code against the applicant, stating that in the marriage of her daughter Farhat Naqvi, gifts were given to the marriage couples which are construed as her stridhan. As per the non-applicant No. 2, after death of her daughter Farhat Naqvi, he made a demand for return of stridhan but the same has not yet been returned to him. 3. On the basis of complaint filed by the non-applicant No. 2, the JMFC, Gwalior has taken cognizance under section 406 of Indian Penal Code against the applicant. The applicant after receiving the notice sent by the trial Court, moved an application under sections 466, 468 of Criminal Procedure Code that the complaint filed by the non-applicant No. 2 was time barred and he prayed for dismissal of the complaint on this count only. After hearing both the parties the JMFC rejected the application filed by the applicant, which is subject matter of challenge in this revision petition. 4. Learned counsel for the applicant submits that the daughter of non-applicant No. 2 Farhat Naqvi died on 30-10-2008 but the complaint was filed under section 406 of Indian Penal Code on 5-3-2012, which is apparently time barred because under section 406 of Indian Penal Code punishment provided is three years RI and therefore, clause (c) of sub-section (2) of section 468, Criminal Procedure Code, is attracted which envisages that after lapse of period of limitation, there is a bar to take cognizance. It is also contented that there is no evidence available on record to show the entrustment of the property, the signature of the non-applicant No. 2 is not present on the list of article, which has been filed by the non-applicant No. 2. On these grounds, learned counsel for the applicant prayed for dismissal of the complaint filed by the non-applicant No. 2. 5. Learned counsel for the non-applicant No. 2 supported the impugned order and prays for dismissing this revision petition. 6. Having heard the rival contentions of both the parties and perused the record, this Court is of the considered opinion that the Court below has not committed any error warranting interference in the instant revision application. It is not disputed that under section 406 of Indian Penal Code punishment provided is three years RI with fine. Under section 468(2)(c) Criminal Procedure Code, there is a bar to take cognizance after a lapse of period of Limitation. According to the averment of the complaint, the daughter of the non-applicant No. 2, namely, Farhat Naqvi has died on 30-10-2008. As per the statement recorded under section 200 of Criminal Procedure Code, the non-applicant No. 2 stated that he has given 10 Tolas gold ornaments and half Kg. silver ornaments and one Motorcycle to the marriage couple, which are still in possession of the husband of her daughter Farhat Naqvi. After the death of Farhat Naqvi, he demanded the stridhan of her daughter but the same was refused by the present applicant. From the statement of the complainant/non-applicant No. 2 Mohd. Hasim Naqvi, it does not appear that on which date, he made a demand for return of her daughter’s Stridhan but it is apparent that he made his demand after the death of her daughter. 7. In the instant case, the period of limitation will be computed from the date of demand but that date has not been disclosed by the applicant. 8. This Court in the case of Bairo Prasad vs. Smt. Laxmibai Pateriya reported as 1991 Cri.L.J. 2535, has held as under :— “No doubt, non-applicant daughter-in-law was turned out from the marital home in 1973 and accordingly, a report was lodged on 5-12-1973 and also on 17-12-1973 and demands after demands were also made for return of stridhan but no heed was paid and ultimately on 2-11-1987, a registered notice with acknowledgment was also sent. Therefore, when the demand is made and the notice is served, from that date a fresh period of limitation shall begin to run and this will be a continuing offence and the provisions of section 472, Criminal Procedure Code would be attracted which read as under : “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.” In Bhagirath Kanoriya vs. State of M.P., AIR 1984 SC 1688 , where the accused persons were charge-sheeted for non-payment of employer’s contribution towards provident fund before the due date, it has been held that the offence being a continuing offence, the period of limitation prescribed by section 468, Criminal Procedure Code cannot have any application and under the circumstances, provisions of section 472, Criminal Procedure Code will be attracted giving fresh period of limitation to run at every moment of the time during which the offence continues. In the instant case, whenever the demand is made, the period of limitation will be computed from that date. The last notice was served on 2-11-1987 and the complaint was filed on 12-1-1988 i.e. within three months from the date of notice. Therefore, the complaint is not barred by limitation. Besides this, provisions of section 473, Criminal Procedure Code are emphatic giving jurisdiction to the Court for extending the period of limitation in certain cases and where the trial Court is satisfied that the delay has been satisfactorily explained or that it is necessary to do so in the interest of justice, the trial Magistrate may take cognizance of an offence even after expiry of the period of limitation prescribed Under section 468, Criminal Procedure Code (hereinafter referred to as the Code). However, the facts of the instant case do not fall within the ambit of section 473, Code but certainly fall within the ambit of section 472 of the Code being a continuous offence, as discussed above; and the submission made by the learned counsel in this regard is rejected being without any force.” 9. However, the facts of the instant case do not fall within the ambit of section 473, Code but certainly fall within the ambit of section 472 of the Code being a continuous offence, as discussed above; and the submission made by the learned counsel in this regard is rejected being without any force.” 9. Looking to the aforesaid legal position, the impugned order does not suffer from any illegality and it is held that for counting the limitation for taking cognizance of offence under section 406 of Indian Penal Code, the provision under section 472 of Criminal Procedure Code will be applicable wherein it is provided 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.”. 10. So far as the question of entrustment of articles is concerned, perused the complaint and also the statement of complainant recorded by JMFC and I find that there are allegations to the effect of entrustment of articles, the correctness of which, of course, will have to be looked into. It cannot, however, be stated that there was no entrustment of articles placed in the complaint. 11. In view of the above discussion, no interference is called in this revision. Thus, this revision petition being devoid of merits is hereby dismissed.