IN THE HIGH COURT OF JUDICATURE AT PATNA
CR. REV. No.925 of 2008
Jarari Shams @ Nikki wife of Tarique Imran
Daughter of Shamshad Hussain resident of Dehti,
Police Station- Palasi, Dist.- Araria.
.... Petitioner.
Versus
1. State Of Bihar
2. Md. Rizwan son of late Saidur Rahman present
address House No.-3021, Haz Manzil, Kale Khan
Maszid Vurli Marine Turimen Gate, Delhi.
3. Bibi Farjano w/o Nasud Alam d/o late Saiyedur
Rahman.
4. Bibi Sajra Khatun, w/o late Saiyedur Rahman
All of permanent resident of village- Dehti
P.S. Palasi, District- Araria.
.. Opposite Parties.
5. Tarique Imran son of late Saidur Rahman
present address- Navodaya Vidyalaya
Chandigarh (Haryana) permanent address-
Village Dehti Police Station Palasi,
District- Araria.
... Opposite parties.
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For the petitioner : Mr. Vikram Singh, Adv..
For the State : Mr. Z. Hoda, APP.
For the O.P. Nos.
2 to 5 : Mr. Vinay Ranjan, Adv.
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PRESENT
Hon'ble Mr. Justice Amaresh Kumar Lal
O R D E R
(11.08.2011)
——–
Amaresh Kumar Lal, J. The complainant-petitioner has
preferred this revision application against
the order dated 7.7.2008 passed by the learned
Sessions Judge, Purnea in Cr. Revision No. 11
of 2008 by which the order dated 8.11.2007
passed by the learned SDJM, Araria in
Complaint Case No. 2138 of 2007 by which a
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prima facie case has been found against the
accused, opposite party nos. 2 to 5 for the
offence punishable under Section 498 A I.P.C.
and 4 of Dowry Prohibition Act and an order
has been passed for issuance of summons
against them, has been set aside.
2. The prosecution case, in brief,
is that the complainant was married to Tarique
Imran, opposite party no. 5, in the year 2000
and began to enjoy conjugal life. The accused
were complaining and taunting for less dowry.
The husband of the complainant was a teacher
in Jawahar Navoday Vidhyalaya, Baramula (Jammu
& Kasmir). There was demand of a maruti car
and four lakh rupees for purchasing a flat in
Delhi. When the complainant refused, she was
asked to compel her father to sell the land
and make arrangement for money, for which she
was subjected to torture in various ways
physically and mentally as well. The victim
became pregnant, but there was no leniency in
her torture, thereafter, she came to her
Naihar and gave birth of a male child but the
physical condition of the child was not good
and on advice she proceeded to Delhi for the
treatment of her baby. One of the accused was
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also living in Delhi in a rented house and she
was persuaded to live there where the husband
of the complainant used to come but they were
not cooperating in the treatment of the child.
On 21.7.2001 she came to know that her brother
was murdered. The complainant was kept by the
accused injecting intoxicated materials.
Finding the danger of her person and child,
she came to her parents’ house in July 2001.
She has been living in her parents’ house. It
has further been alleged that other accused
who happens to be Nanad and others are living
in the same village and always threatened and
put pressure for fulfillment of illegal demand
of dowry. On 7.7.2007 all the accused in
collusion with each other got the second
marriage of her husband, Tarique Imran,
thereafter, the complaint petition has been
filed on 27.7.2007. After enquiry the learned
SDJM found a prima facie case against the
accused for the offence punishable under
Section 498 A I.P.C. and 4 of the Dowry
Prohibition Act and an order has been passed
for issuance of summons against them vide
order dated 8.11.2007.
3. Learned counsel for the
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petitioner has submitted that the learned
Sessions Judge has committed error in
interpretation of law and has come to the
conclusion that the complainant left
matrimonial house in July 2001 and since then
she has been living with her parents in their
house. The maximum punishment for the offence
under Section 498 A I.P.C. is three years and
for the offence under Section 4 of Dowry
Prohibition Act is six months. Therefore, the
limitation for taking cognizance in the matter
is three years. The complaint petition has not
been filed within three years from the date of
offence nor the order taking cognizance has
been passed by the learned SDJM within three
years. Therefore, the impugned order is
squarely barred by limitation under Section
468 Cr. P.C. and in similar facts and
circumstances, the Hon’ble Supreme Court has
quashed the order taking cognizance in the
case of Arun Vyas & Anr. Vs. Anita Vyas,
reported in (1999) 4 SCC 690. The learned
Magistrate has perused the complaint petition,
statement of the complainant on solemn
affirmation, the statement of prosecution
witnesses and the materials available on
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record and has rightly found a prima facie
case against the accused for the offence
punishable under Section 498 A I.P.C. and
Section 4 of Dowry Prohibition Act.
4. Learned counsel for the petitioner has drawn my attention to the
provision contained in Section 7(2) of Dowry
Prohibition Act, 1961 which reads as follows:-
” Nothing in Chapter
XXXVI of the Code of Criminal
Procedure 1973 (2 of 1974) shall
apply to any offence punishable
under this Act.”
5. He has submitted that in that
view of the matter there is no bar in taking
cognizance for the offence punishable under
Section 4 of the Dowry Prohibition Act.
Chapter XXXVI of Code of Criminal Procedure
deals with the limitation for taking
cognizance of certain offences. In support of
his contention, he has referred to a decision
in the case of Arun Vyas & Anr. vs. Anita Vyas
reported in 1999 BLJ (3)260: (1999) 4 SCC 690
wherein it has been held that offence under
Section 498 A I.P.C. is a continuing offence
and the question of limitation should be
considered in the interest of justice. In that
case on 18.10.1995, the wife filed a complaint
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under Section 498 A and 406 IPC and Section
190(1) Cr.P.C. alleging that she was beaten up
by her husband, mother-in-law and sisters-in-
law for want of dowry. Under the Magistrate’s
order, the police investigated the complaint
under section 156(3) Cr. P.C. and submitted
charge-sheet (final form) under Section 498 A
IPC on 22.12.1995. On that report, the
Magistrate took cognizance of the offence
under Section 498 A and 406 I.P.C. and issued
summons to the accused. The case was posted on
23.4.1996 for framing of charges. On that date
the Magistrate found the complaint to be time
barred and discharged the accused. The High
Court set aside the Magistrate’s order and
directed the Magistrate to proceed with the
case and thereafter the appellant filed appeal
in the Hon’ble Supreme Court. In that decision
it has been held that due to rule of
limitation the criminal justice system is not
rendered toothless and ineffective and the
perpetrators of crime are not placed in an
advantageous position. It has also been held
that wide discretion has been given under
Section 473 to the Court in the matter of
taking cognizance of an offence after expiry
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of the period of limitation. The essence of
offence in Section 498 I.P.C. is cruelty. It
is a continuing offence and on each occasion
on which the wife was subjected to cruelty,
she would have a new starting point of
limitation.
6. In the present case, it is a clear case of the petitioner that the
petitioner and the accused live in the same
village and the accused always come to the
complainant and threatened to ask her father
to transfer half of the land in favour of her
husband. When the demand was not fulfilled,
the accused ultimately got her husband married
to Bibi Noor Apshan. The petitioner continued
to get mental torture.
7. On the other hand, learned
counsel for opposite party nos. 2 to 5 submits
that no offence under Dowry Prohibition Act is
made out against accused, opposite party nos.
2 to 5 as the demand does not come within the
purview of section 2 of Dowry Prohibition Act.
In support of his contention, he has referred
two decisions: in the case of Deo Narayan Lall
Das & Ors. Vs. State of Bihar & Anr. reported
in 1992(2)PLJR 560 and in the case of Sankar
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Prosad Shaw & Ors. vs. The State & Anr.
reported in 1991 Cr. Law Journal 639. In both
these decisions it has been held that mere
demand is not an offence under Section 4 of
Dowry Prohibition Act, it should be either
given or agreed to be given. Mere demand may
be an offence under Section 498 A of the IPC.
He has further submitted that learned
Magistrate has not condoned the delay in
filing the complaint petition and has not
applied his mind with regard to the provision
contained in Section 473 Cr.P.C., as such
delay has not been condoned and the learned
Sessions has rightly set aside the order
taking cognizance against the accused.
8. After hearing learned counsel for
both the parties and on perusal of the record,
it appears that it is an admitted position
that the petitioner is the wife of accused
Tarique Imran, opposite party no. 5. It also
appears that the petitioner has been tortured
by the accused and torture of the petitioner
has been continued even after she has come to
her parents’ house. The houses of both the
parties are in the same village and the
accused persons have been torturing her even
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at the house of her parents and lastly the
petitioner has been tortured by the accused by
getting the marriage of her husband to another
lady. In view of the decision reported in
(1999) 4 SCC 690 (supra), the essence of
offence in Section 498 A IPC is cruelty. It is
a continuing offence and on each occasion on
which the wife was subjected to cruelty, she
would have a new starting point of limitation.
So far the offence of demand of dowry is
concerned, from the facts of this case it
appears that it does not come within the
purview of dowry as defined under Section 2 of
Dowry Prohibition Act as it has been held in
the decisions referred to above reported in
1992(2) PLJR 560 and 1991(1) Cr. Law Journal
639.
9. Considering the facts and
circumstances of this case, in my opinion, the
impugned order dated 7.7.2008 is not fit to be
sustained. The impugned order is set aside.
The order dated 8.11.2007 passed by learned
Sub Divisional Judicial Magistrate; Araria
in complaint case no. 2138 of 2007 is
restored, so far the cognizance under Section
498 A I.P. C. is concerned.
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10. In the result, this revision
application is allowed.
Patna High Court (Amaresh Kumar Lal, J.)
Dated 11th of August 2011
N.A.F.R/Kanchan