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Judgment
I.S.Tiwana, J.
The petitioner''s complaint under Section 403 Indian Penal Code against her husband (since divorced) has been dismissed by Sessions Judge on the ground that the same was barred by limitation as laid down in section 468(2) (c) of the Code of Criminal Procedure. For this conclusion of his the Sessions Judge has primarily relied upon the averments made in para 4 of the complaint, which reads as under :
"That shortly after the marriage the said Sh.Rajinder Nath started maltreating the complainant, manhandled her, permanently disabled her hearing faculties and she was thrown out of her matrimonial home in October, 1973 in there wearing apparel only and since she is living with her parents all the articles of Istri Dhan as detailed in Annexure A which were given by the parents of the applicant for her exclusive use were forcibly retained by the said Sh. Rajinder Nath because of the peculiar circumstances at that time."
He formed the opinion that the moment the petitioner was thrown out by the respondent from her matrimonial house an offence under Section 403 Indian penal Code too was committed. This conclusion of the learned Sessions Judge appears to me to be wholly wrong. Turning out the petitioner form the house by the respondent did not amount to misappropriation of her property. It is abundantly clear from the illustration to section 403 Indian penal Code that misappropriation is committed when the person who is already in custody or possession of the property belonging to the complainant, refuses to deliver that property to the complainant. Mere custody, possession or retention of the property by the accused without anything further does not by itself amount to misappropriation. In somewhat similar circumstances a similar opinion was expressed by Tewatia, J. in Avtar Singh and another v. Kirpal Kaur and another, 1979, The Criminal Law Times, 286.
In the light of the above discussion, this petition is allowed and the impugned order is set aside. The case is sent back to the trial Court for disposal in accordance with law. The parties through their counsel are directed to appear before the said Court on 25th March, 1987.