IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISCELLANEOUS APPLICATION No. 808/2009 (Under Section 482 of the CrPC) Sarjeet & Others …….Applicants Versus Smt. Sato Burman ……Respondent Mr. Manish Arora, Advocate, for the applicants. Mr. S.K. Shandilya, Advocate, for the respondent. 22nd December, 2011 Hon’ble Servesh Kumar Gupta, J. By means of this Criminal Miscellaneous Application, moved under Section 482 CrPC, the prayer has been advanced to quash the order of cognizance dated 8.9.2009, passed by the First Upper Civil Judge (Jr. Div.), Roorkee in Criminal Complaint Case No. 360/2009, Smt. Sato Burman v. Sarjeet & Others, under Section 406 IPC. 2. Facts, in brief, are that marriage of Smt. Sato Burman was solemnized with Sushil Kumar on 14.4.2003. Just after a year of their marriage, differences cropped up between the two families because of insatiable attitude of the accused applicants on the question of dowry. Ultimately, Smt. Sato Burman was forced to leave her matrimonial house on 16.7.2004 at 8 pm. After her ouster from the matrimonial house, Smt. Sato Burman has been continuously living in her parental house. She lodged an FIR on 10.8.2004 for the offences punishable under Section 323, 504, 498 IPC read with Section 3/4 of the Dowry Prohibition Act. Thereafter, on 9.6.2008, she issued a notice to the accused applicants asking them to return her stridhan, gifts and household articles given in the dowry. 2 This notice was replied by the accused applicants on 5.3.2009, thereby admitting the possession of stridhan, gifts and household articles given in the dowry with them. The accused applicants also informed that the same had been kept safely in a locked room of the house of one Mr. Amar Nath in village Shyampur, R. Kedia, Umbiwala, Prem Nagar, Dehradun, and stated that Smt. Sato Burman was free to take back these things at any point of time. 3. Feeling disgruntled with the aforesaid reply, Smt. Sato Burman filed the impugned complaint on 20.7.2009 under Section 406 IPC against Sarjeet (father-in-law), Sushil Kumar (husband), Sudhir Kumar (brother-in-law) and Surendra Kumar (brother-in-law). It would be pertinent to mention here that only Sarjeet, Sushil Kumar and Sudhir Kumar have approached this Court by way of filing this petition, while Surendra Kumar is not an applicant in this petition. 4. The learned Magistrate, after recording the statement of the complainant under Section 200 CrPC and the statements of her witnesses under Section 202 CrPC, took cognizance of the offence vide the impugned order. 5. Heard learned Counsel for the parties and perused the papers available on record. 6. It has been contended on behalf of the applicants that it is alleged in the complaint that Smt. Sato Burman was expelled from the matrimonial house on 16.7.2004. On the strength of this allegation, the learned Counsel argued that had it been the case, then the breach of trust, if any, is committed on 16.7.2004, and the period of limitation, as provided under Section 468 CrPC, should be reckoned from 3 the said date of her expulsion. Thus, he argued that since the offence of breach of trust is punishable with imprisonment of either description for a term, which may extend to three years, or with fine, or with both, therefore, the impugned complaint is time barred as the period of limitation, as envisaged under Section 468(2(c) CrPC, is three years in the present case, and the impugned complaint has been filed on 20.7.2009 i.e. after a lapse of more than three years. 7. This Court is unable to agree with the contention put forth by learned Counsel for the applicants for the reason that for the purpose of counting the limitation period, the date of alleged expulsion of the wife from her matrimonial house is not relevant because in every matrimonial dispute, there are chances of reconciliation between the parties even after lodging the FIR. The wife or her parents remain hopeful of reconciliation and resumption of the matrimonial relations. There are innumerable cases, in which parties to the matrimony compromise the matter and wife returns to her matrimonial house again. In fact, in the instant case, the cause of action for lodging the complaint under Section 406 IPC will be deemed to have arisen when the complainant Smt. Sato Burman received the reply dated 5.3.2009 given by the accused applicants in response to her notice dated 9.6.2008. In the said reply, it was mentioned that all those articles, which were demanded back by Smt. Sato Burman, were kept under the custody of one Mr. Amar Nath at village Shyampur, R. Kediya, Umbiwala, Prem Nagar, Dehradun. Firstly, the said address is not the place of residence of the accused applicants, and secondly, demanded articles are the property of Smt. Sato Burman, and as such, the applicants had no authority to keep the same in the 4 premises of some other person. In the circumstances, Smt. Sato Burman was not supposed to knock the door of Amar Nath, an unknown person to her, to get her household articles/stridhan back. This way, the period of limitation, as envisaged under Section 468 CrPC, is not attracted in the present case. As such, the complaint is well within its time. 8. Learned Counsel for the applicants relied upon a judgment of Hon’ble Apex Court, rendered in case of Harmanpreet Singh Ahluwalia & Others v. State of Punjab & Others, reported in (2009) 3 SCC (Cri) 620, and contended that in case Smt. Sato Burman was of the view that her husband and the members of her in-laws family have committed the breach of trust as stated above, then she should have implicated them for this offence too at the time of lodging the FIR on 10.8.2004. Launching separate prosecution for the offences punishable under Section 323, 498A IPC read with Section 3/4 DP Act on the hand, and Section 406 IPC on the other, amount to harassment of the accused applicants. 9. The above contention of learned Counsel for the applicants is also not very convincing for the reasons which have already been indicated by me hereinabove. However, at the cost of repetition, it can be observed that after leaving the matrimonial house, the bride and her parents naturally think to patch up the dispute and restore the normal relations with the family of husband. At this juncture, they do not anticipate that the household articles or the stridhan of the bride will be misappropriated by the husband or the members of in-laws family. 10. In the above precedent, the Hon’ble Apex Court has discussed the offence envisaged under Section 405 IPC 5 vis-à-vis with a special legislation contained under Sections 3 & 4 of the Dowry Prohibition Act, and has held that such an offence, where alleged, should be tried under the special legislation rather than general provisions contained in the Penal Code. The Hon’ble Apex Court has further held that if any article is given by way of dowry, the question of its entrustment on behalf of wife would not arise. 11. There is a clear-cut albeit fine distinction between the ratio laid down by the Hon’ble Apex Court in the aforementioned precedent and the facts of the instant case. The present case is not merely confined to the demand of articles given by way of dowry, but it also includes stridhan, which is exclusive property of the bride (Smt. Sato Burman), and if the same has not been returned to her by the husband or in-laws, then she has every right to initiate the proceedings for the offence of Section 405 IPC, punishable under Section 406 IPC. 12. However, having considered the facts and circumstances of the case, this Court feels that implication of father-in-law Sarjeet and brothers-in-law Sudhir Kumar and Surendra Kumar was unwarranted and uncalled for. Hence, the impugned order of cognizance dated 8.9.2009 and the proceedings of complaint case in respect of them are liable to be quashed. 13. Accordingly, the petition is partly allowed. Impugned order of cognizance dated 8.9.2009, passed by the First Upper Civil Judge (Jr. Div.), Roorkee and the proceedings of Criminal Complaint Case No. 360/2009, Smt. Sato Burman v. Sarjeet & Others, are hereby quashed in respect of Sarjeet and Sudhir Kumar. In exercise of the powers conferred under Section 483 CrPC, the said 6 impugned order of cognizance and proceeding of the complaint case in respect of Surendra Kumar is also quashed, nonetheless he has not come up in this petition. 14. The petition in respect of Sushil Kumar is hereby dismissed. Trial against him shall proceed as per law and without any prejudice to the observations made in this judgment and order. Stay order dated 28.10.2009 stands vacated. 15. Registry is directed to inform the court concerned accordingly. (Servesh Kumar Gupta, J.) 22.12.2011 Prabodh