Bairo Prasad v. Laxmibai Pateria

1. Daughter-in-law Smt. Laxmi Bai, hereinafter called the non-applicant, has filed a complaint against her father-in-law and mother-in-law, who are the applicants No. 1 Bairo Prasad and No. 2 Smt. Prabha Devi respectively in this revision petition, for taking suitable action against them Under Section 406 of the I.P.C. The said complaint was registered and process Under Section 204 of the Criminal P.C. was issued against the applicants.

2. This revision is filed by the 'in-laws of the daughter-in-law, non-applicant, on the grounds inter alia:

(i) that the complaint Under Section 200, Cr. P.C., as framed and filed, is barred by limitation under the provisions of Section 468, Cr. P.C.

(ii) that the case is of civil nature; and as such, no cognizance is required by the criminal court.

A third point was also raised though not taken in the memo of revision that a list of witnesses was not furnished along with the copy of the complaint and therefore, the proceedings are vitiated. On these grounds, it is prayed by the applicants that the proceedings of the criminal case No. 344 of 1988 pending before the Judicial Magistrate First Class, Khurai are liable to be quashed.

3. These facts are not disputed that the marriage of non-applicant Smt. Laxmibai Pateria was solemnised with Bhagwat Prasad Pateria son of the applicants herein on 22-2-1972 and in the marriage, presents were given to the married couple which are construed by the daughter-in-law as her Stridhan. According to the daughter-in-law, the non-applicant, she was turned out from the marital home in the year 1973 by her in-laws and thereafter, she made repeated demands for return of Stridhan but the same were refused by the applicants. On 15-12-1975, a report was also lodged to this effect but of no avail; and lastly on 2-11-1987, a registered notice was also sent to the applicants. On these facts, a complaint for the offence punishable Under Section 406, IPC was filed.

4. So far as the ground relating to limitation is concerned, it is contended that Under Section 406, IPC punishment provided is three years' R.I. and fine; and therefore, Clause (c) of Sub-section (2) of Section 468, Cr. P.C. is attracted which envisages that after a lapse of period of limitation, there is a bar to take cognizance. In this context, it is argued that it was in the year 1973 according to the averments of the complainant, non-applicant, she was turned out from the marital home and her Stridhan was not given to her. Therefore, the period of limitation for purposes of Section 468, Cr. P.C. is to be computed from 1973 and the complainant having not filed the complaint within a period of three years from 1973, it is barred by limitation.

5. 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 acknowledgement 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, Cr. P.C. 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 v. 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, Cr. P.C. cannot have any application and under the circumstances, provisions of Section 472, Cr. P.C. 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, Cr. P.C. 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, Cr. P.C. (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.

6. The next ground urged is that the case is of civil nature and the learned Magistrate has committed an error of law in taking cognizance and in issuing process against the applicants. No doubt, for purposes of criminal law, for proving the case against the accused, the ingredients of entrustment with property, having domain over it, and the same having been misappropriated or converted to his own use by the accused person, are required to be proved before a charge for the offence punishable Under Section 406 of the I.P.C. is established. In the instant case, the complaint, as has been filed, prima facie discloses the offence alleged as discussed above and, therefore, it is not a case of civil nature. In similar circumstances, in Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628 : (1985 Cri LJ 817), where the stridhan was misappropriated, it was held that the prima-facie case Under Section 406, IPC is made out. Therefore, this submission made by the learned counsel for the applicants also fails and is rejected.

7. Regarding the third and the last submission, perusal of the complaint demonstrates that no list of witnesses has been furnished by the daughter-in-law, as required under Sub-section (2) of Section 204 of the Code, which reads as under :

"No summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed."

The object of this provision is that the accused should have notice of the names of the witnesses of the complainant so that he can prepare for their cross-examination and therefore, these provisions are imperative and non-compliance thereof will make the issue of process invalid. This also result in causing prejudice to the accused as the accused loses opportunity to confront the witnesses with their previous statements. Therefore with a view that the accused person may not be given surprise, the Legislature, at their wisdom, has provided this provision Under Section 204, Cr. P.C.

8. The provisions of Sub-section (2) of Section 204 of the Code are mandatory in the sense, a process issued before filing the list of witnesses would be invalid. This sub-section is coached in a negative language and it goes to the power of the Magistrate to issue summons or warrants, as the case may be. Having regard to the wordings of Sub-section (2) of Section 204 of the Code, it is clear that the filing of the list of prosecution witnesses is essential unless the complainant is the only witness in the case and that alongwith summons or warrant issued under Sub-section (1) of Section 200 of the Code, a copy of the complaint ought to be sent to the accused. It is, therefore, not competent for a Magistrate to issue process without complying with these mandatory provisions (See Chaturbhuj v. Nahar Khan AIR 1958 MP 28 : (1958 Cri LJ 50) : However, if the requirements of the offence alleged Under Section 406, I.P.C. satisfied (Sic) the Court by the statement of the complainant itself, being the only witness, the trial Court may, in the circumstances of the case, issue process against the accused persons even without furnishing any list of witnesses.

9. The statement of the daughter-in-law is on record. She being the complainant, if her, statement ex-facie discloses the case, certainly in that circumstances, the Court has to proceed Under Section 406, IPC. Since this point was not urged before the trial Court, therefore, this case is sent back to the trial Court for consideration and decision as to whether on the basis of the statement of the complainant alone, a case punishable Under Section 406, IPC is made out against the accused persons.

10. In the result, this revision is partly allowed and it is directed that the case be sent back to the trial Court for adjudication on the point above mentioned.