Judgement & Order (Cav)

1. Heard Mr. D. Goswami, learned counsel for the petitioner. Also heard Mr. B.N. Mukherjee, learned counsel for the respondent No.2/informant.

2. This is an application under Section 528 of BNSS against the impugned order dated 03.05.2024 passed by the learned Sub- Divisional Judicial Magistrate (S), Bongaigaon in connection with C.R. Case No. 66/2023 under Section 406 of IPC, by issuing summons to the accused petitioner.

3. The respondent complainant, Riyanka Sharma, who is married to the accused petitioner herein, namely, Shankar Deo Sharma had filed a complaint case being Complaint Case No. 66/2023 under Section 406/420 IPC regarding non-return of Stridhan property which was listed in paragraph 9 of the complaint petition.

4. In support of the complaint, the complainant, thereafter, was examined by the learned trial court, being the court of learned SDJM(S), Bongaigaon. Along with the initial deposition of the complainant, two more witnesses were examined by the learned trial court as CW1 and CW2, who were the mother and aunt respectively, of the respondent/complainant. Thereafter, the learned court below vide order dated 03-05-2024 was pleased to take cognizance against the petitioner under section 406 IPC and summons were issued.

5. A scanned copy of the TCR was called for but the same is not yet received. However, both the learned counsel fairly submit that as the relevant documents are annexed with the petition, they are agreeable to disposal of the matter on the basis of the available materials.

6. The learned counsel for the petitioner submits that his primary contention is that the impugned order dated 03-05-2024 passed in CR Case No. 66/2023 is bad in law as it is violative of section 468 CrPC (as it existed then) pertaining to limitation period with regard to offences. It is submitted that with regard to the offence in question i.e. section 406 IPC, the prescribed limitation period, in terms of section 468 CrPC would be three years. The learned counsel has drawn attention to a complaint filed by the complainant herein under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hearing after ‘DV Act’) resulting in DV Case No. 3/2020. Drawing attention to the relevant para, it is submitted that the complainant in the said petition under section 12 of the DV Act makes allegations of being harassed and assaulted by the respondents therein and ousting of the complainant along with her child from the matrimonial house on 6-12-2019. It is also stated that the respondents in the DV proceeding kept the stridhan (gold bangles, gold ring, gold chain, gold ear rings and clothing’s) belonging to the complainant worth Rs. 2,00,000/-.

7. The learned counsel has also drawn attention to the statement in para 3 (vii), where the complainant as the aggrieved person sought a direction to the respondents to hand over the household articles, ornaments and furniture etc. to her. It is submitted that the said DV proceeding was filed on 21-01-2020 and taking that as the starting point of limitation, the order dated 03-05-2024 taking cognizance was clearly beyond the stipulated limitation period of 3 years under section 468 CrPC.

8. In these facts and circumstances, the learned counsel for the petitioner, seeking interference with the impugned order and submits that the said order of taking cognizance having been passed beyond the period of limitation, is erroneous in law, in facts, and should be set aside.

In support of his contentions, the learned counsel for the petitioner relies upon the following decision –

                   Ghanshyam Soni v. State (Govt. of NCT of Delhi) & Anr . reported in 2025 0 Supreme (SC) 940.

9. The learned counsel for the complainant submits, on the other hand, that the offence of criminal breach of trust vis-à-vis stridhan property, for which the petitioner is being sought to be prosecuted, is a continuing offence within the meaning of section 472 of CrPC. Drawing attention to the relevant portions of the materials available on record, it is submitted by the learned counsel for the complainant that she had sought for the return of the stridhan property, in her application under the DV Act, and the return has not been made. The same constitutes a continuing offence, and therefore, the limitation period will be a continuing one, and hence, the impugned order was passed within the period of limitation, and not liable to be set aside on the ground of limitation.

10. In support of these contentions, the learned counsel for the complainant relies upon the following decisions –

                   (i) Krishna Bhatacharjee v. Sarathi Chouhdury & Anr. reported in (2015) 14 SCR 65.

                   (ii) Smt. Vanka Radhmanohari v. Vanke Venkata Peddy & Ors. reported in (1993) 3 SCC 4.

                   (iii) S.K. Bhalla & Ors. V. State of Nct of Delhi & Anr. reported in 2010 SCC OnLine Del 4384.

11. I have perused the impugned order and other relevant materials. I have considered the submissions of both the sides and the decisions cited at the Bar.

12. Section 468 of CrPC is reproduced herein below –

                   468. Bar to taking cognizance after lapse of the period of limitation. – (1) Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

                   (2) The period of limitation shall be-

                   (a) six months, if the offence is punishable with fine only;

                   (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

                   (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

                   1[(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.]

13. Thus, it follows from the statutory provision that for offences punishable up to 3 years, the limitation period under the section 468 (2) (c) would be 3(three) years.

14. In this context, Section 406 IPC may be reproduced herein below –

                   406. Punishment for criminal breach of trust. – Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

15. Thus, the said offence is punishable up to 3 years or fine or with both. It follows from the above that the applicable limitation period, in terms of Section 468 CrPC, with regard to the offence of criminal breach of trust under section 406 IPC, would be 3 years.

16. Now, the most important issue in this proceeding is – as to whether the allegation of criminal breach of trust by way of non-return of stridhan property of a woman would have a fixed limitation period of 3 years or would be a continuing offence within the meaning of section 472 CrPC. For this purpose, section 472 CrPC is reproduced herein below –

                   Continuing offence. – 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.

Thus, for such a continuing offence, a fresh period of limitation begins every time as the offences deemed to be continuing.

17. In the case of Ghanshyam Soni (Supra), the Hon’ble Supreme Court has held that –

                   “15. It is a settled position of law that for the computation of the limitation period under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance. The dicta laid down in the case of Bharat Damodar Kale v. State of Andhra Pradesh makes it unequivocally clear that the Magistrate is well within his powers to take cognizance of a complaint filed within a period of three years from the date of the commission of offence as mandated under section 468 CrPC. The relevant portion is reproduced as under:

                   50. The Code imposes an obligation on the aggrieved party to take recourse to appropriate forum within the period provided by law and once he takes such action, it would be wholly unreasonable and inequitable if he is told that his grievance would not be ventilated as the court had not taken an action within the period of limitation. Such interpretation of law, instead of promoting justice would lead to perpetuate injustice and defeat the primary object of procedural law.

                   51. The matter can be looked at from different angle also. Once it is accepted (and there is no dispute about it) that it is not within the domain of the complainant or prosecuting agency to take cognizance of an offence or to issue process and the only thing the former can do is to file a complaint or initiate proceedings in accordance with law, if that action of initiation of proceedings has been taken within the period of limitation, the complainant is not responsible for any delay on the part of the court or Magistrate in issuing process or taking cognizance of an offence. Now, if he is sought to be penalized because of the omission, default or inaction on the part of the court or Magistrate, the provision of law may have to be tested on the touchstone of Article 14 of the Constitution. It can possibly be urged that such a provision is totally arbitrary, irrational and unreasonable. It is settled law that a court of law would interpret a provision which would help sustaining the validity of law by applying the doctrine of reasonable construction rather than making it vulnerable and unconstitutional by adopting rule of litera legis. Connecting the provision of limitation in Section 468 of the Code with issuing of process or taking of cognizance by the court may make it unsustainable and ultra vires Article 14 of the Constitution.

                   52. In view of the above, we hold that for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a court. We, therefore, overrule all decisions in which it has been held that the crucial date for computing the period of limitation is taking of cognizance by the Magistrate/court and not of filing of complaint or initiation of criminal proceedings.

                   53. In the instant case, the complaint was filed within a period of three days from the date of alleged offence. The complaint, therefore, must be held to be filed within the period of limitation even though cognizance was taken by the learned Magistrate after a period of one year. Since the criminal proceedings have been quashed by the High Court, the order deserves to be set aside and is accordingly set aside by directing the Magistrate to proceed with the case and pass an appropriate order in accordance with law, as expeditiously as possible."

18. In the case of Krishna Bhattacharjee (supra), the Hon’ble Supreme Court has held that –

                   “31. Regard being had to the aforesaid statement of law, we have to see whether retention of stridhan by the husband or any other family members is a continuing offence or not. There can be no dispute that wife can file a suit for realization of the stridhan but it does not debar her to lodge a criminal complaint for criminal breach of trust. We must state that was the situation before the 2005 Act came into force. In the 2005 Act, the definition of "aggrieved person" clearly postulates about the status of any woman who has been subjected to domestic violence as defined under Section 3 of the said Act. "Economic abuse" as it has been defined in Section 3(iv) of the said Act has a large canvass. Section 12, relevant portion of which have been reproduced hereinbefore, provides for procedure for obtaining orders of reliefs. It has been held in Inderjit Singh Grewal (supra) that Section 498 of the Code of Criminal Procedure applies to the said case under the 2005 Act as envisaged under Sections 28 and 32 of the said Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006. We need not advert to the same as we are of the considered opinion that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act. We are disposed to think so as the status between the parties is not severed of "continuing offence" gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians. For the purpose of the 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act. In the present case, the wife had submitted the application on 22.05.2010 and the said authority had forwarded the same on 01.06.2010. In the application, the wife had mentioned that the husband had stopped payment of monthly maintenance from January 2010 and, therefore, she had been compelled to file the application for stridhan. Regard being had to the said concept of "continuing offence" and the demands made, we are disposed to think that the application was not barred by limitation and the courts below as well as the High Court had fallen into a grave error by dismissing the application being barred by limitation.”

19. In the case of Vanke Venkata Reddy (supra), the Hon’ble Supreme Court has held that –

                   “7. It is true that the object of introducing Section 468 was to put a bar of limitation on prosecutions and to prevent the parties from filing cases after a long time, as it was thought proper that after a long lapse of time, launching of prosecution may be vexatious, because by that time even the evidence may disappear. This aspect has been mentioned in the statement and object, for introducing a period of limitation, as well as by this court in the case of State of Punjab v. Sarwan Singh, AIR 1981 SC 1054. But, that consideration cannot be extended to matrimo-nial offences, where the allegations are of cruelty, torture and assault by the husband or other members of the family to the complainant. It is a matter of common experience that victim is subjected to such C cruelty repeatedly and it is more or less like a continuing offence. It is only as a last resort that a wife openly comes before a Court to unfold and relate the day to day torture and cruelty faced by her, inside the house, which many of such victims do not like to be made public. As such Courts while considering the question of limitation for an offence A under Section 498 A i.e. subjecting a woman to cruelty by her husband or the relative of her husband, should judge that question, in the light of Section 473 of the Code, which requires the court, not only to examine as to whether the delay has been properly explained, but as to whether "it is necessary to do so in the interest of Justice".

20. In the case of S.K. Bhalla (supra), the Hon’ble Supreme Court has held that –

                   “15. Perusal of the FIR would show that the complainant has made specific allegation that despite her demands, the petitioners have failed to return her ‘Stree-dhan’ and jewellery. She has not specified the date on which the demand was made. Section 406 of IPC deals with the offence of criminal misappropriation and the aforesaid offence is complete when the entrusted property is not returned by the persons who were entrusted with the property on demand by the rightful owner. Thus, though the FIR discloses the commission of offence under Section 406 IPC, it does not specify on which date the demand for return of ‘Stree-dhan’ was made as such it is not clear when the offence of criminal misappropriation was complete. This obviously is a subject matter of investigation and evidence pertaining to the same is to be seen in the charge sheet. Otherwise also, even if it is presumed that demand for return of ‘Stree-dhan’ was made in November, 1992, then also, till the ‘Stree-dhan’ of the complainant is returned to her, the misappropriation by the petitioners continues. Thus, fresh period of limitation shall begin to run at every moment of the time during which the offence continues. Therefore, prima facie, it cannot be said that the FIR pertaining to the offence punishable under Section 406 IPC is time barred. It is well settled that delay in filing of FIR by itself cannot be a ground for discharge or acquittal of the accused. There can be many reasons for delay in filing of the complaint. It would not be appropriate to speculate on this aspect. If the complainant/prosecution is able to explain the delay, then the court would be well within its rights to act on the evidence led during trial and that explanation, if any, can come only during trial. Thus, under the circumstances, I do not find any merit in the contention of learned counsel for the petitioners that the offence complained of in the FIR is barred by limitation in view of Section 468 Cr.P.C.”

21. Coming back to the instant case, if the date of filing of the complaint under the D.V. Act by the wife on 21.2.2020 is taken as the date of demand of stridhan property, then the continued non-return of the same prima facie can make out a case of criminal breach of trust under Section 406 IPC. Therefore, taking cognizance of the said offence by the learned trial court on 03.05.2024 cannot be sought to be beyond the period of limitation, in as much as, the alleged offence being a continuing offence, a fresh period of limitation, starts every time, in terms of Section 472 Cr.PC. Though, the learned trial court has not gone into the aspect of limitation, but its power of order taking cognizance was not barred by limitation in terms of Section 468 Cr.PC r/w Section 472 CrPC.

22. Consequently, I do not find any infirmity in the impugned order dated 03.05.2024 passed by learned SDJM(S), Bongaigaon in C.R. Case No. 66/2023 and accordingly the said order is hereby upheld and confirmed.

23. The criminal petition stands dismissed and disposed of.