Sudhir Kapur & Ors. vs State & Anr.
2010 Latest Caselaw 3720 Del

                      * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                       Date of Reserve: August 02, 2010
                                                       Date of Order: 10th August, 2010
+ Crl. M.C. No. 799/2009
%                                                                      10.08.2010

SUDHIR KAPUR & ORS.                                             ..... Petitioner
                                     Through: Mr.Sanjeev K. Grover, Advocate

                            versus

STATE & ANR.                                                   ..... Respondent
                                     Through: Mr. O.P. Saxena, APP
                                     Mr. Pawan Narang & Mr. Puskal Gagoi,
                                     Advs. for R-2


JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

1. Present petition has been filed for quashing of FIR No. 540/07,

registered against the petitioner at P.S. Defence Colony, under Section 498-

A/406/34 IPC .

2. The marriage between the petitioner and the respondent had taken

place on 4th March, 1984. The parties started living separate from each other

in 1992. The petitioner filed a divorce petition against the respondent in

1996. The present FIR was lodged against the petitioner by wife under Section

498A/406 IPC after about 15 years of living separate from her husband and

after about 11 years of filing the divorce petition.

3. It is argued by counsel for the respondent/wife that offence under

Section 406 IPC was also involved and the dowry articles etc. of the wife were

not given back. This averment has no substance. The wife had all

opportunities right from 1992 onwards to demand back her articles, if any,

lying with the husband. The very fact that wife did not demand any article

from the husband after 1992 till lodging of FIR shows that there was no

entrustment of property by wife to the husband or to his relatives. After

husband had filed divorce petition, she had again opportunity to make an

application before the concerned court under Hindu Marriage Act for the

return of dowry articles, Istridhan, if any, under section 27 of the Act. Had

there been any article lying with the husband, she would have moved the

application. She did not initiate any such move, nor did she serve any notice

on her husband or in laws for return of any of her articles lying with them. It

is only when her appeal against the decree of divorce was dismissed by the

High Court, and she preferred an SLP, she thought of lodging of an FIR also.

4. Under Section 468 of Cr. P.C., the cognizance of an offence where the

maximum sentence of imprisonment is up to 3 years, can be taken within 3

years. Under Section 498A/406 IPC maximum sentence is up to three years

imprisonment. Thus the cognizance of the offences against petitioner cannot

be taken by the Court. The FIR lodged against the husband in respect of

offences committed under Section 498A/406 IPC in 1992 or prior to that, is

barred by limitation. I, therefore, allow the present petition and hereby quash

FIR No. 540/2007, P.S. Defence Colony, New Delhi, registered under Sections

498A/406/34 IPC. The petition stands allowed.

AUGUST 10, 2010                                   SHIV NARAYAN DHINGRA, J.
acm