BIPIN BIHARI LAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) Mr. Pratik Kr. Sinha, learned counsel for the petitioner, Mr. Ashutosh Tripathi, learned counsel for O.P. No. 2, and Mr. Binod Kumar No. 3, learned APP for the State, have been heard at length.

(2.) The instant criminal miscellaneous petition has been filed under Sec. 482 of the Code of Criminal Procedure, 1973 (in short, 'Cr.P.C.') (now Sec. 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, 'BNSS')) for quashing the order dtd. 11/5/2016 passed by the court of the SDJM, Sasaram, in Complaint Case No. 213 of 2009, by which the learned trial court has rejected the petitioner's prayer for discharge.

(3.) Learned counsel for the petitioner has argued that O.P. No. 2, who happened to be the wife of the petitioner, initially filed Complaint Case No. 942 of 2008 alleging the offences under Ss. 498A, 323, and 379 of the Indian Penal Code (in short, 'IPC') and also alleging the offences under Ss. 3 and 4 of the Dowry Prohibition Act (in short, 'DP Act'), and after inquiry, the learned SDJM, Sasaram, took cognizance of the offences under Sec. 498A of the IPC and Ss. 3 and 4 of the DP Act vide order dtd. 22/10/2008. In the said Complaint Case No. 942 of 2008, the complainant (O.P. No. 2) did not make the allegation that, on the demand made by the petitioner's father, namely Ujagir Prasad, the co-accused, Rs.5,75,000.00 (Rupees Five Lakhs Seventy-Five Thousand) was paid; rather, O.P. No. 2 alleged in her statement in Complaint Case No. 942 of 2008 that she had been tortured for want of dowry. In fact, the complainant (O.P. No. 2) refused to go to Ghazipur where the petitioner was posted during the relevant period of time, and at that time, the presence of O.P. No. 2 was required due to the illness of the petitioner's father. Due to the ill-behaviour of O.P. No. 2, the petitioner filed a matrimonial suit bearing Matrimonial Case No. 227 of 2008 in the court of the District Judge, Ghazipur, for restitution of his conjugal life. Prior to the complaint case of the present matter, the mother of O.P. No. 2 had filed an application before the Women Commission in which she did not make any complaint against the petitioner or any of his family members with regard to the allegation of non-return of the so-claimed Stridhan of O.P. No. 2. The petitioner's sister, who was made co-accused in Complaint Case No. 942/2008, approached this Court for quashing of the cognizance order, and her prayer was allowed by this Court. The Complaint Case No. 213/2009, in which the order impugned has been passed, has been filed by O.P. No. 2 in the court of the SDJM at Sasaram, which has no jurisdiction to try the said case, as the alleged occurrence is said to have taken place at Nirala Nagar, Ballia, in Uttar Pradesh. Therefore, in view of the provisions of Sec. 179 of the Cr.P.C. (now Sec. 199 of BNSS), the entire trial and proceeding before the court of the learned SDJM, Sasaram, is without jurisdiction. It has been further argued by the petitioner's counsel that the petitioner's father, Ujagir Prasad, who has been made accused No. 2 in Complaint Case No. 213/2009 by O.P. No. 2, is no more and died after filing of the said complaint case. The cognizance for the offence under Sec. 6 of the DP Act is completely bad in the eye of law, as it is barred by limitation under the provisions of Sec. 468 of the Cr.P.C. (sec. 514 of BNSS). Though the petitioner had challenged the cognizance order dtd. 22/2/2012 before this Court by way of Cr. Misc. No. 13572 of 2012 but the same was disposed of by giving the petitioner a liberty to raise all his points, including the point of cognizance, at the appropriate stage before the trial court. Though at the time of making the prayer for discharge, the petitioner could not have raised the question of time-barred cognizance for the offence under Sec. 6 of the DP Act, even then the petitioner's right to raise this issue before this Court in this quashing application cannot be taken away in light of the settled proposition of law. It has been further argued that even at the time of framing of charges, the question of the limitation period for cognizance, if raised, must be examined by the concerned court, which will decide the prayer for discharge; and merely because cognizance has been taken, the accused will not lose his right to raise the question of limitation for cognizance at the time of deciding his prayer for discharge. In this regard, the observations made in paragraphs 7 to 11 and 17 in the case of Arun Vyas and Ors. vs. Anita Vyas, Cr. App. No. 574 of 1999, by the Hon'ble Apex Court, are relevant. The said observations, upon which reliance has been placed by the petitioner's counsel, are being reproduced as under: