Allahabad High Court Judgement

Allahabad High Court Judgement

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice at mail@myadvocates.club
JUDGEMENT HEADLINE : Stridhan Dispute-complaint At Ghaziabad Without Jurisdiction Against All Accused Except Husband-prosecution Of All Relatives But For A-1 Quashed.
JUDGEMENT TITLE : Sujeet Kumar & Others Vs. State Of U.P. & Another On 09/14/2010 By Allahabad High Court
CASE NO : APPLICATION U/S 482 NO. 11315 OF 2009
CORAM : Hon'ble Vinod Prasad,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Reserved


Criminal Miscellaneous Application No.11315 Of 2009

Sujeet Kumar And Others..................Applicants

Versus

State Of U.P. And Another.................Respondents


Hon'ble Vinod Prasad, J.

Once Again A Family Feud Between Husband Sujeet Kumar(A1) ,his Parents And Other Relatives On The One Side And His Wife Smt. Pratibha Roy(Smt. Pratibha Rai), Respondent No.2(R2)on The Other Has Vented In Launching Of A Prosecution Against The Entire Husband's Family Consisting Of Husband Sujeet Kumar(A1),his Parents Vishwanath Rai (A-2) And Smt. Umda Devi (A-3),younger Brother Pradeep Rai(A-4), Sister Puneeta (A-5) And Uncle-in-law Ramnath Rai (A-6) By R2 Through Complaint Case No.275 Of 2009, Smt. Pratibha Rai Vs. Sujeet Kumar And Others, Under Section 406 IPC P.S. Indirapuram, District Ghaziabad Before ACJM II. By Invoking Inherent Power Under Section 482 Cr.P.C.(in Short Code), Through Instant Application Accused Applicants Have Sought Quashing Of Proceedings Of Said Trial With Additional Prayer For Stay Of Further Proceedings In The Court Below Meanwhile.
Shorn Of Unnecessary Details And Stated Briefly, Complainant's Allegations In Her Complaint Registered As Case No.320 Of 2008( Subsequently Renumbered As 275 Of 2009)are That She Was Married To A1 On 2.5.2004 In Her Parental House At B-4095, Sector-4, Vasundhara P.S. Indirapuram, District Ghaziabad. In Her Coverture Besides Cash Amount Of Rs.3 Lacs, Rs. 35,000/- Were Spent On Bed Room And Dinning Materials, Rs.37,000/- On Ornaments Consisting Of Gold Chain, Gold Ring Etc., Rs.60,000/- On Draper- Sarees, Blouse Etc.,Rs. Rs.45,000/- On Suit Links And Other Muslins Of Bridegroom And Rs.35,000/- Were Spent On Utensils, Gas Stove Etc. Rs. One And Half Lacs Was Spent On Other Expenditures And Thus A Total Sum Of Rs.6,17,000/- Was Spent.
After Nuptial Knot R2 Went To Her In-laws House At Madhubani, Bihar Where She Was Tortured Because Of Rapacious Attitude Of The Applicants For Additional Demand Of A Tata Sumo Car With Cash Amount Of Rs. Five Lacs. Inability By The Parents Of R2 Escalated Torture On Her Hence She Was Brought Back To Her Parental House Where She Remained For Most Of Time. On 10.4.2008, A-1 Came To Ghaziabad And Asked R2 To Accompany Him On The Pretext Of A Marriage Being Solemnized In His House On 5.3.2008. R2 Accompanied A-1 On 17.2.2008 For Her In-laws House But No Sooner They Boarded The Train A-1 Inquired From R2 Whether She Had Brought Any Money Or Not? On A Negative Reply By R2, A1 Threatened Her With Klife And With Dire Consequences. On Reaching Her In-laws House, R2 Discovered That Marriage Pretext Was A Hoax. Being Terrified And Sensing Danger Of Her Elimination R2 Sent For Her Uncle On Phone. Meanwhile Applicants Got A Note Scribed From Her On A Plain Sheet Of Paper. R2 Thereafter Was Brought Back To Her Parents House By Her Uncle At Ghaziabad. When R2 Asked For Return Of Her Stridhan She Was Rebuffed By The Applicants.
With Above Allegations, Complainant Wife R2 Lodged A Complaint, Annexure No.1, Before ACJM II, Ghaziabad On 25.4.2008 For Breach Of Trust U/S 406 IPC Against A-1 To A-6, Which Complaint Was Initially Registered As Case No.320 Of 2008 But Later On Was Renumbered As Case No. 275 Of 2009. Adopting Complaint Case Procedure Trial Magistrate Recorded Statements U/S 200 Of R2 (Annexure CA-1) And That Of Her Witnesses Sanjeev Rawut (uncle Of R2) And Her Father Ram Ajay Rawut (Annexures CA-2 And CA-3) U/S 202 Of The Code And Thereafter Summoned The Applicants U/S 406 IPC Vide It's Order Dated 18.7.2008, Fixing 29.8.2008 For Their Appearance.
Hence, Instant Application, U/S 482 Of The Code With The Prayers To Quash Entire Proceedings By The Accused Applicants.
To The Counter Affidavit Was Filed By Alok Kumar Rai On Behalf Of R2, Counsel For Applicants Opted Not To File Any Rejoinder Affidavit Inspite Of Opportunity Being Offered And Preferred To Argue The Case Finally.
I Have Heard Sri A.K. Singh, Advocate In Support Of This Application, Ld. AGA For Respondent No.1 State And Sri Alok Kumar Rai Advocate For Respondent No.2 And Perused The Entire Material On Record.
Applicant's Counsel Submits That Looking To The Complaint Annexure No.1 As Well As Recorded Statements Annexures CA-1 To CA-3, No Offence At All Is Disclosed Against A2 To A6 Who Are Father-in-law, Mother-in-law, Uncle-in-law, Unmarried Brother-in-law And Unmarried Sister-in-law. He Submits That In Respect Of These Applicants Allegations In The Complaint And Recorded Statements Are So Vague That Their Prosecution Seems To Be Vindictive, Vexatious And Malafide. At Best What Can Be Derived From Trial Court Record Is That There Are Prosecutable Evidences Against Husband A1 Alone And Therefore Only He Should Be Allowed To Be Prosecuted Contended Learned Counsel. Additionally He Submits That True Facts Were That Marriage Of A1 And R2 Was A Love Affair Dowry-less Marriage And R2 Resided With A1 At All Places Of His Posting At Cochin, Mumbai, Delhi Etc. And Thereafter She Started Coercing Him To Purchase A Flat In Ghaziabad. Since Wish Of R2 Could Not Be Fulfilled That She Adopted Harassing Tactics And Present Is A Case For That Motive, Which Per Se Is A Malicious Prosecution. It Was Next Contended That R2 Initially Launched A Prosecution Under Sections 498A, 323, 506 IPC And 3/4 D.P. Act By Lodging Of A FIR On 11.3.2008 At 12.30 At P.S. Indirapuram, District Ghaziabad Vide Crime No.352 Of 2008 In Which She Did Not Made Any Allegation Regarding 406 IPC But Subsequently She Instituted Complaint, Annexure 1 Motivated With The Idea Of Seeking Revenge More Of Less On The Same Facts. It Was Next Submitted That Serial Prosecution Of The Applicants By R2 On The Same Set Of Facts Unerringly Indicate Her Motivated Malicious Intention And Therefore Harassment Of The Applicants Should Be Curbed By This Court Wielding It's Power Under Section 482 Of The Code By Quashing Their Prosecution And Consequently This Application Be Allowed.
Two Counsel For Respondents Conversely Refuted Applicants Contentions And Submits That Disputed Questions Of Fact Cannot Be Gone Into By This Court While Deciding Instant Application Under Section 482 Cr.P.C. And Allegations Of R2, At This Primary Initial Stage Be Taken To Be Correct And Since Complaint And Enquiry Conducted By Trial Magistrate Discloses Commission Of Offences Under Which Applicants Have Been Summoned, Therefore Instant Application, Being Without Merit Be Dismissed. It Was Appendagly Submitted That Applicants Should Be Relegated Back To Face Trial And Answer The Charges. It Was Next Argued That When Complaint Discloses Commission Of Offences, It Should Not Be Quashed At It's Inception By Looking Into The Defence Of The Applicants. Residue Submission Was That Prosecution Should Not Be Curtailed At Its Inception Without Affording Opportunity To The Complainant To Substantiate Her Case And Establish Her Charges. Wrapping Up The Argument It Was Submitted That The Instant Criminal Miscellaneous Application Be Dismissed As Without Substance.
I Have Considered Rival Contentions And Have Perused The Record Of This Application. Per Se The Dispute Is Between Husband, Wife And Their Close Relatives. In Paragraph-7 Of Their Application Accused Have Made Recitals Concerning Lodging Of F.I.R. Against Them For Offences U/Ss 498A, 323, 506 IPC And 3/4 D.P. Act By R2, Which Pleading Has Been Admitted By Complainant Wife In Paragraph-7 Of Her Counter Affidavit. Paragraph-8 Of Instant Application Recites Payment Of Two Thousand Rupees As Maintenance To The Wife By A-1 And Her Receiving Of Eight Thousand Rupees Through Bank Draft Vide Annexure No.3, Which Fact Has Also Been Admitted In The Counter Affidavit. Accused In That FIR Were Not Charge Sheeted For Offence Under Section 406 IPC.
Analysing Text Of The Complaint And Statements Recorded During Inquiry,U/S 200 And 202 Cr.P.C. What Transpires Is That There Are No Specific Allegations Against A-2 To A-6 For Committing Crime Of Criminal Breach Of Trust Except For Mentioning Their Names And Relationship With A1. Besides That There Is Absolutely Nothing On Record To Indicate That They Were Ever Entrusted With Any Stridhan By R2. There Is No Specific Averment Against Any Of Them Regarding Entrustment Nor There Is Any Allegation For Misappropriation Against Them Which Two Sine Qua Non Ingredients Are A Must For Making Out Offence Of Criminal Breach Of Trust.
Revisiting The Statements And Recital In Annexure No. 1(complaint) And Statement U/S 200 Of The Code No Offence Was Committed By These Applicants At Ghaziabad As The Case Of R2 Is That She Had Brought Her Stridhan To Madhubani From Ghaziabad Where She Handed It Over To The Accused Applicants. This Is Perceptibly Clear From Her Allegations Contained In Paragraph 2 Of Her Complaint Which Are As Follows:-
"That Carrying All Above Mentioned Articles Complainant Came To Her In Laws House From Her Parental Home After Her Bidai And Handed Over Her Said Articles Which Were Her Stridhan And Started Her Married Life".
Above Passage When Read In Conjunction With Subsequent Para No. 3 Leaves No Room For Surmises That Any Entrustment, If At All, Was Made At Madhubani, Bihar And Not At Ghaziabad. Besides Such Allegations There Are Other Allegations Regarding Demand Of Tata Sumo Car And Cash Amount In Annexure No. 1 And Statement U/S 200 Of The Code. Thus So Far As Accused Applicants A2 To 6 Are Concerned , Since They Have Not Committed Any Offence At Ghaziabad, Their Prosecution At That Place Is Illegal In View Of Chapter XIII Sections 177/178 Of The Code As Great Prejudices Have Been Caused To Them Because Of That. Allegations Against These Applicants Do Not Travel Beyond Bihar. This Is The First Impediment In Prosecuting These Accused Applicants.
Another Compelling Reason For Interference By This Court In Respect Of Those Applicants Is That Material On Record Against Them Do Not Indicate Any Specific Allegations Against Them For Committing Criminal Breach Of Trust Except Ipse Dixit And But A Very Vague Bald Assertion Only In One Para That All The Accused Were Handed Over Aforesaid Stridhan, Which Is Contained In Para 2 Of Complaint. Rest All The Subsequent Paragraphs Do Not Allege Any Over Act By These Applicants Regarding Entrustment And Mis Appropriation. Retentions Of Alleged Stridhan By Pure Surmises Culled Out From Complaint Allegations Were Also At Madhubani. Above Applicants Never Visited Ghaziabad Subsequent To The Coverture Nor There Is Any Allegation About That, Which Separates Their Case From That Of Husband A1.Taking Allegations In It's Entirety Against A2 To 6, They Are Absolutely Flimsy, Sweeping, Unauthentic, Non Specific And Too General To Be Taken As Sufficient Ground For Proceeding Against Those Applicant.
Attour, The List Attached With The Complaint, Annexure No.1, Contains Two Types Of Articles. Some Of The Articles Purviewed Within The Ambit Of Stridhan Given In The Marriage For Personal Use Of Complainant Bride, Whereas Some Others Are Given Not For Personal Use For The Bride But They Were For Common Use For Both The Spouses Given As A Goodwill Gesture In Their Nuptial Tie By Relatives Of Either Sides. Such Of Those Articles Which Were Meant For Both The Spouses Or Those Gifts Which Were For The Groom And His Relatives Do Not Fall Within The Ambit Of Concept Of Stridhan, Being Exclusive Property Of The Wife Over Which She Alone Had The Authority As Absolute Owner. In This Respect, It Is Pointed Out That The Money Spent On The Suit Lengths And The Cloths Of The Husband And His Relatives, Ornaments Given To The Husband For His Exclusive Use Cannot Form Stridhan, Which Word Has Got A Definite Idea To Convey. Stridhan Are Those Articles, Which Are Given To The Bride During Her Coverture For Her Exclusive Use. They Do Not And Cannot Imbibe Within Its Purview Even Those Articles, Which Have Been Given In The Marriage, As A Mark Of Respect And Affection And Meant For Use By Both The Spouses Or Which Were Meant For The Groom And His Parental Relatives. Judging From That Angle Claim Of Complainant R2 That All Those Articles Also Form Part Of Her Stridhan, Cannot Be Accepted And Is Hereby Repelled. In This Context Support Can Be Drawn From An Observation By The Apex Court In The Decision In Pratibha Rani Versus Suraj Kumar: AIR 1985 SC 628 Wherein It Has Been Held As Follows:-
" 12. A Perusal Of The List Reveals That So Far As The Jewellery And Clothes, Blouses, Nighties And Gowns Are Concerned They Could Be Used Only By The Wife And Were Her Stridhan. By No Stretch Of Imagination Could It Be Said That The Ornaments And Sarees; And Other Articles Mentioned Above Could Also Be Used By The Husband. If, Therefore, Despite Demands These Articles Were Refused To Be Returned To The Wife By The Husband And His Parents, It Amounted To An Offence Of Criminal Breach Of Trust. In Mentioning The Articles In The List, We Have Omitted Furniture And Utensils Which Though Also Belonged To The Complainant Yet There Is Some Room For Saying That These Were Meant For Joint Use Of The Husband And Wife."
(Emphasis Supplied)
The Concept Of Stridhan Was Explained By The Apex Court Is The Same Decision Pratibha Rani (Supra) As Follows:-
"2. This Now Brings Us To A Brief Discussions Of The The Nature, Character And Concomitants Of Stridhan. In The Instant Case, We Are Mainly Concerned With That Part Of Stridhan Which Is The Absolute Property Of A Married Woman During Coverture. Sir Gooroodas Banerjee In 'Hindu Law Of Marriage And Stridhana' While Describing The Nature Of Stridhan Quoted Katyayana Thus :
"Neither The Husband, Nor The Son, Nor The Father, Nor The Brother, Has Power To Use Or To Aliene The Legal Property Of A Woman. And If Any Of Them Shall Consume Such Property Against Her Own Consent He Shall Be Compelled To Pay Its Value With Interest To Her, And Shall Also Pay A Fine To The King..................Whatever She Has Put Amicably Into The Hands Of Her Husband Afflicted By Disease, Suffering From Distress, Or Sorely Pressed By Creditors, He Should Repay That By His Own Free Will."
The Natural Corollary Which Flows From Above Discussion Is That There Can Not Be Any Offence Of Breach Of Trust In Respect Of Those Articles And /or Gifts Which Were Not Meant For Personal Use By The Bride/ Wife And Therefore Must Be Kept Out Of Consideration While Examining Offence Of Breach Of Trust In Respect Of Stridhan.
Another Noticeable Feature Of The Complaint Case Is That Marriage Of R2 Was Solemnized In The Year 2004 And Complaint Was Lodged After A Gap Of Four Years In The Year 2008 And In Between A FIR Was Already Got Registered On The Same Set Of Facts Mentioning Therein Also That Stridhan Was Not Returned.R2, Meanwhile Also Claimed Maintenance Which Was Awarded To Her And Which She Was Receiving As Well And Therefore Her Intention In Lodging Of Another Complaint Case At Ghaziabad Against The Entire Family Including Unmarried Boy And Girl And Cousin Uncle In Law, When She Could Have Got The Charge Amended In The Trial Of Dowry Demand Case Also Seems To Be A Vexatious Exercise Against All Other Applicants Except A1 Which Seems To Be Tainted With Her Malicious Intention. Implication Of A-4 To A-6 Who Are Unmarried Boy And Girl And Uncle-in-law Lends Support To This View. This All Per Se Indicate Vindictive Attitude Of R2 To Harass And Humiliate Entire Family.
On Above Analysis This Court Is Of The View That Wife Should Not Be Allowed To Ventilate Her Ulterior Motive By Resorting To Unholysome Methodology. It Is The Solemn Duty Of This Court To Curb Her Vindictive Intention Which She Has Wielded By Utilising The Power Of The Magistrate By Lodging A Frivolous Complaint. Asking Entire Family To Stand Trial Merely Because They Are Relatives Of The Husband By Taking Ordeal Of Criminal Trial Procedure And Travel From Madhubani To Ghaziabad Is Neither Judicious Nor Will Foster The Cause Of Justice. A Pedantic Reading Of The Allegations In Such Disputes Made In The Complaint Without Deciphering The Inherent And Motive Embedded In Between The Lines Will Do More Harm That To Foster Cause Of Justice. Allowing A Malicious Prosecution To Go On Will Be A Travesty Of Justice And Must Be Stopped. To Do Ex Deboti Justice Is To Scuttle Such A Prosecution At It's Very Inception. It Is The Duty Of This Court To Maintain That No Person Should Be Harassed Maliciously And Be Prosecuted By An Unscrupulous Litigant Vindictively. Dispensation Of Justice Is All For Which Courts Are Meant For. There Have Been Many Cases On Similar Facts And Circumstances Which Have Met The Same Fate Which Instant Application Is To Have. Some Of The Exemplar Decisions Are As Follows:-
In Neelu Chopra And Another Vs. Bharti (2009) 10 SCC 184. Supreme Court Has Been Please To Observe As Under:
"7. When We See The Complaint As A Whole It Is Basically Against The Accused Rajesh. All The Allegations Are Against Rajesh. There Is Undoubtedly Some Reference To The Present Appellants, But What Strikes Us Is That There Are No Particulars Given As To The Date On Which The Ornaments Were Handed Over, As To The Exact Number Of Ornaments Or Their Description And As To The Date When The Ornaments Were Asked Back And Were Refused. Even The Weight Of The Ornaments Is Not Mentioned In The Complaint And It Is A General And Vague Complaint That The Ornaments Were Sometime Given In The Custody Of The Appellants And They Were Not Returned. What Strikes Us More Is That Even In Para 10 Of The Complaint Where The Complainant Says That She Asked For Her Clothes And Ornaments Which Were Given To The Accused And They Refused To Give These Back, The Date Is Significantly Absent.
8. ...............................................................
9. In Order To Lodge A Proper Complaint, Mere Mention Of The Sections And The Language Of Those Sections Is Not The Be All And End All Of The Matter. What Is Required To Be Brought To The Notice Of The Court Is The Particulars Of The Offence Committed By Each And Every Accused And The Role Played By Each And Every Accused In Committing Of That Offence.
10. When We See The Complaint, The Complaint Is Sadly Vague. It Does Not Show As To Which Accused Has Committed What Offence And What Is The Exact Role Played By These Appellants In The Commission Of Offence. There Could Be Said Something Against Rajesh, As The Allegations Are Made Against Him More Precisely But He Is No More And Has Already Expired. Under Such Circumstances, It Would Be An Abuse Of The Process Of Law To Allow The Prosecution To Continue Against The Aged Parents Of Rajesh, The Present Appellants Herein, On The Basis Of A Vague And General Complaint Which Is Silent About The Precise Acts Of The Appellants."
In View Of The Above Law And Adopting The Reason Of The Apex Court, What I Find Is That So Far As Accused Husband A-1 Is Concerned, He May Be Guilty Of Commission Of Breach Of Trust And Of Mis-utilising Stridhan Of Respondent Complainant And He Is The Husband And Entrustment To Him By R2 Is Very Likely And There Exists A Very Strong Presumption Against Him Of Misappropriation Of Stridhan. It Was He Who Had Gone To Ghaziabad And Had Brought Back R2 From Her Parental House On A False Pretext That A Marriage Is Due In His Family. There Are Strong Circumstances Against Him. He Should Be Left To Prove His Innocence In A Proper Trial But So Far As Rest Of The Applicants A-2 To A-6 Are Concerned,as Opined Herein-above There Prosecution Is Nothing But Vexatious, Malafide, Ulteriorly Motivated And With Territorial Jurisdiction And In Such A View Should Not Be Permitted To Be Carried On.
Wrapping Up This Judgement It Is Held That Prosecution Of Applicants Vishwanath Rai (A-2), Smt. Umda Devi(A3), Prdeep Rai(A-4), Puneeta (A-5) And Ramnath Rai (A-6) In Complaint Case No. 275 Of 2009, Smt. Pratibha Rai Versus Sujeet Kumar And Others, U/S 406 IPC Pending Before ACJM II, Ghaziabad Are Vexatious, Malafide And Motivated And Since No Offence Had Been Committed By Them At Ghaziabad Is Also Beyond Jurisdiction Of Court At Ghaziabad And Hence Is Quashed. They All Need Not Appear Before The Trial Court. To The Said Extent This Criminal Misc. Application Is Allowed. How Ever It Is Dismissed For A-1, Sujeet Kumar And Stay Order Dated 19.5.2009 As Is Extended From Time To Time In His Respect Stands Vacated. He Is Directed To Appear Before ACJM Concerned To Answer The Charge. On The Facts Of The Application Bail Prayer Of Said Applicant A1 Is Directed To Be Considered On The Same Day By The Courts Below.
This Criminal Miscellaneous Application Is Allowed In Part As Above.

Go to Navigation