JHAPSI CHOUDHARY AND ANOTHER Vs. THE STATE OF BIHAR AND ANOTHER

JUDGEMENT

(1.) This application under Sec. 482 of the Code of Criminal Procedure (hereinafter referred as "the Code") is for quashing of order dated 21.6.1982 passed by the Chief Judicial Magistrate, Gaya in G.R. No. 348 of 1979 arising out of Civil Lines P. S. Case No. 15(2)79 under Sec. 4 of the Dowry Prohibition Act, 1961 (hereinafter referred as "the Act") whereby the learned Chief Judicial Magistrate took cognizance against the petitioners. The relevant facts are that a petition of complaint was filed before the Chief Judicial Magistrate, Gaya on 2.2.1979 by opposite party No. 2 containing allegations of demand as dowry of Rs. 4,000/. besides cycle, wrist watch etc. from opposite party No. 2 by the two petitioners on 28.1.1979.

(2.) The learned Chief Judicial Magistrate appears to have sent the petition of complaint filed by opposite party No. 2 to the Officer -in -charge, Civil Line Police Station, Gaya for instituting a case on the basis of the complaint petition. It further appears that after completing investigation the police submitted charge -sheet dated 27.4.81 which appears to have been put up before the learned Chief Judicial Magistrate on 21.6.1982, the date on which the impugned order was recorded. The learned Chief Judicial Magistrate passed the impugned order whereby cognizance has been taken against these petitioners on. 9.7.1981 for the offence under Sec. 4 of the said Act.

(3.) Learned counsel appearing on behalf of the petitioners has at first submitted that the order taking cognizance against the petitioners passed by the Court below is illegal and without jurisdiction since it contravenes the provision of Sec. 7(b) of the Act. It is submitted in this connection that according to the provision contained in clause (b) of Sec. 7 of the Act no court can take cognizance of any offence under the Act except on a complaint made within one year from the date of the offence. It is also submitted that the court below while recording the impugned order has violated this provision of the Act in two ways; first that the court below has taken cognizance of an offence under the Dowry Act on the basis of a charge -sheet submitted by the police which is totally prohibited by the provision of the Act. The Act specifically requires that the cognizance of any offence under the Act can be taken on the basis of a petition of complaint only and not on the basis of a police report. This submission of the learned counsel for the petitioners has to be accepted in view of the facts of this case and the law as contained in the Act. The learned counsel appearing for the opposite party also could not justify the impugned order in the light of this provision. The facts which have been stated above clearly show that the learned Chief Judicial Magistrate did not take cognizance on the basis of the complaint filed by opposite party No. 2 instead he sent the petition of complaint to the officer -in -charge of Civil Lines Police Station, Gaya, for instituting a police case. A police case accordingly was instituted and the police after completing investigation submitted charge -sheet and therefore, the learned Chief Judicial Magistrate has taken cognizance. So obviously the cognizance has been taken in this case on the basis of a police report which is prohibited by the Act. So the illegality committed on this score cannot be overlooked. It has next been submitted by the petitioners' counsel in this connection that clause (b) of Sec. 7 of the Act further lays down a period of limitation in the matter for filing of complaint by the aggrieved person and taking of cognizance by the Court. According to clause (b) of Sec. 7 of the Act cognizance can be taken on a complaint which has been filed within a year from the date of the offence. In the instant case the cognizance taken by the learned Chief Judicial Magistrate is barred by limitation. This submission as well of the learned petitioners' counsel is not without substance. The learned counsel for opposite party No. 2 in this regard has submitted that in this case the period of limitation prescribed by clause (b) of Sec. 7 of the Act will not be operative since opposite party No. 2 has filed his petition of complaint before the Chief Judicial Magistrate well within one year. I am unable to accept this submission since apparently the learned court below did not act oh the petition of complaint in the matter of taking cognizance of the offence alleged therein, and he sent the same to the police for instituting a case and ultimately took cognizance on the basis of the charge -sheet submitted by the police. So in this case obviously the charge -sheet submitted by the police has been treated as a petition of complaint. As stated above charge -sheet was submitted much beyond the period of one year prescribed by the Act. In this way also the order impugned in this application is illegal