Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Section 406 IPC, Entrustment Of Property Necessary, In Its Absence Husband's Sister & Mother Discharged.
JUDGEMENT TITLE : Smt. Prakash Kaur And Others Vs. State Of U.P. And Another On 21/05/2008 By Allahabad High Court
CASE NO : APPLICATION U/S 482 NO. 18488 OF 2005
CORAM : Hon'ble Raghunath Kishore Rastogi,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Reserved

Criminal Misc. Application No. 18488 Of 2005
Smt. Prakash Kaur And Others Vs. State Of U.P. And Another

Hon'ble R.K. Rastogi, J.

This Is An Application Under Section 482 Cr. P.C. To Quash The Proceedings Of Complaint Case No. 645/05 Smt. Devendra Kaur Vs. Mahender Pal Singh And Others Pending In The Court Of Chief Judicial Magistrate, Aligarh And To Recall The Summoning Order Dated 30.8.05 Passed By The Learned C.J.M,, Aligarh In That Case.

The Facts Relevant For Disposal Of This Application Under Section 482 Cr. P.C. Are That The Complainant Opposite Party No. 2 Filed The Aforesaid Complaint Against The Accused-applicants In The Court Of The Learned C.J.M., Aligarh With These Allegations That The Marriage Of Complainant Opposite Party No. 2 Had Taken Place With Accused-applicant No. 3 Mahendra Pal At The Paternal House Of Opposite Party No. 2 In Shyam Nagar P.S. Civil Lines, Aligarh On 21.4.1996. In That Marriage The Father Of Opposite Party No. 2 And Her Other Relations Had Given Dowry As Well As 'Stridhan' And Incurred Other Expenses As Mentioned In The List (1) Attached With The Complaint, And All These Items Were Entrusted With Accused-applicant No. 3 And His Mother Applicant No. 1 And Sister Applicant No. 2 With This Understanding That All These Items Would Be Delivered To Opposite Party No. 2 On Reaching Her Husband's House. The Accused, However, Were Not Satisfied With The Dowry And Were Demanding One Lakh Rupees In Cash. In The Month Of June, 1997, They Forced The Opposite Party No. 2 To Leave The House After Keeping Her All Ornaments, Clothes And 'Stridhan.' She Was Pregnant At That Time. She Came To Her Father's House At Shyam Nagar, Aligarh, And Since June, 1997 She Had Been Residing At Her Father's House. She Gave Birth To A Son On 3.8.1997 In A Nursing Home. Since Accused-applicant No. 3 Was Not Ready To Keep Her With
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him As His Wife, She Filed Suit No. 696/99 Smt. Devendra Kaur Vs. Mahendra Pal Singh For Restitution Of Conjugal Rights In The Court Of Civil Judge, Senior Division, Aligarh. Mahendra Pal Singh Refused To Keep The Complainant Opposite Party No. 2 As Wife And So Ultimately A Divorce Took Place Between Them By Mutual Consent On 9.5.02. At That Time, It Was Agreed That The 'Stridhan' Of The Complainant Opposite Party No. 2 Shall Be Delivered To Her. Her Stridhan And All Her Ornaments, Clothes Etc. And Other Items Got At The Time Of Marriage Were Entrusted With The Accused Persons And They Were Supposed To Keep Them Properly. The Complainant Opposite Party No. 2 Filed A Case For Maintenance Of Her Minor Son And She Demanded Her 'Stridhan' In That Case Also, But The Accused-applicant No. 3 Did Not Return Her 'Stridhan', And Ultimately On 14.12.02 The Complainant Opposite Party No. 2 With Her Father Preetam Singh Arora And Witnesses Harbhajan Singh Gulati And Harmit Singh Gulati Went To The House Of The Accused To Demand Her 'Stridhan' But They Did Not Return The Same. Then She Gave A Notice On 24.12.04 To The Accused Persons But The Accused Did Not Accept The Notice And Misappropriated Her 'Stridhan', And In This Way They Had Committed An Offence Punishable Under Section 406 I.P.C. It Was Therefore Prayed That Action Should Be Taken Against Accused Persons. This Complaint Was Filed On 18.1.05.
Learned Magistrate After Recording The Statement Of The Complainant Opposite Party No. 2 Under Section 200 Cr. P.C. And Of Her Father Preetam Singh Arora And Other Witnesses Harbhajan Singh Gulati And Harmit Singh Gulati Under Section 202 Cr.P.C. Was Of The View That A Prima Facie Case Under Section 406 I.P.C. Appeared Against The Accused Mahendra Pal Singh, His Mother Smt. Prakash Kaur And Sister Harmeet Kaur @ Pinky. Therefore, The Learned Magistrate Summoned All The Accused Persons Under Section 406 I.P.C.
Aggrieved With That Order The Accused Applicants Have Filed This
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application Under Section 482 Cr. P.C.
The Applicants Have Alleged In The Affidavit Of Mahendra Pal Singh, Filed In Support Of The Application, That The Opposite Party No. 2 Had Voluntarily Left The House Of The Applicants In June, 1997 And Thereafter, She Filed Suit No. 696/99 Under Section 13 Of Hindu Marriage Act For Divorce In The Court Of Civil Judge, Senior Division, Aligarh And In That Suit A Compromise Application Was Filed By Both The Parties On 9.5.02. A Copy Of That Compromise Application Has Been Filed As Annexure No. 1 To The Affidavit. It Appears From Perusal Of This Compromise That It Had Been Stated In Para 1 That According To The Oral Agreement Reached Between The Parties, The Opposite Party Mahendra Pal Singh Had No Objection To Grant Of Decree Of Divorce As Claimed By The Petitioner Smt. Devendra Kaur (opposite Party No. 2 In The Present Case) And So The Petition May Be Decided On The Basis Of This Compromise. It Was Further Provided In It That Both The Parties Shall Bear Their Own Costs Of The Petition. It Was Prayed In The Relief Clause That This Marriage Petition Should Be Decided On The Basis Of This Compromise And The Compromise Be Made Part Of The Decree. The Applicants Have Also Filed A Copy Of The Order Passed By The Additional Civil Judge, Senior Division Court No. 2 Aligarh In Which He Has Stated That The Compromise Was Verified From The Petitioner's Side (who Is Opposite Party No.2 In The Present Case) By Mr. S. Pathak, Advocate And By Sri Yogesh Kumar, Advocate From The Side Of Mahendra Pal (accused-applicant No. 3 In The Present Case) Both The Counsel Identified Their Respective Clients Before The Court. The Terms Of The Compromise Were Read Over And Explained To Them And Then They Verified The Same And So The Suit Was Decided In The Terms Of This Compromise. After Expiry Of The Period Of Two And Half Years From The Date Of The Above Compromise, The Complainant Filed This Complaint For Her 'Stridhan' With False Allegations. It Was Pointed Out That In The List
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enclosed With The Complaint The Total Cost Of Her 'Stridhan' Comes To Rs. 5,61,989/- But Her Father Stated In His Statement Under Section 202 Cr. P.C. That A Sum Of Rs. 3 Lakhs Only Was Spent At The Time Of Marriage And This Sum Included The Cost Of Her 'Stridhan' Also. Copy Of The Statement Of Pretam Singh Arora Has Been Filed As Annexure 4 To The Affidavit. It Was Also Alleged That The Learned C.J.M. Aligarh Has No Territorial Jurisdiction To Pass Any Order On This Complaint As No Part Of The Offence Was Committed Within His Territorial Jurisdiction.

A Counter Affidavit Has Been Filed By Opposite Party No. 2 In Which She Has Denied The Allegation Of Voluntarily Leaving The House Of The Applicants In June, 1997. Regarding The Compromise In The Civil Suit, She Stated That No Such Compromise Had Taken Place. She Further Alleged That It Was Agreed In The Compromise That All The Dowry Items And Articles Given By The Father Of Opposite Party No. 2 To The Accused Shall Be Returned Back. But The Same Had Not Been Returned Back So Far. It Was Further Alleged That Since Her 'Stridhan' Had Not Been Returned By The Accused, She Had Rightly Filed The Complaint Before The Learned C.J.M., Aligarh Who Had Jurisdiction In The Matter. It Was Also Alleged That Under Section 178 Cr. P.C. Where The Offence Has Been Committed In Part At Two Places, The Courts At Both The Places Have Got Jurisdiction To Try The Same And So The Learned C.J.M., Aligarh Had Jurisdiction To Take Cognizance Of The Complaint.
No Rejoinder Affidavit Has Been Filed By The Applicant In Reply To The Counter Affidavit Of The Complainant Opposite Party No. 2. Their Learned Counsel Submitted At The Time Of Argument That Since The Point Involved In The Present Case Is Legal One Regarding Jurisdiction Of The Court, He Did Not Propose To File Any Rejoinder Affidavit.
I Have Heard Learned Counsel For The Applicants, Mr. A. Dubey Learned Counsel For The Opposite Party No. 2, And Learned A.G.A. For
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the State. Learned Counsel For The Applicant Cited Before Me A Ruling Of The Hon'ble Supreme Court In Y. Abraham Ajith And Others Vs. Inspector Of Police, Chennai And Another 2004 AIR SCW 4788. In This Case The Complaint Was Under Sections 498A And 406 I.P.C. And Under Section 4 Of The Dowry Prohibition Act. In This Complaint The Complainant's Allegation Was That After 15.14.1997 She Left The House Of Her Husband And In-laws At Nagaercoil And She Came To Chennai And She Was Continuously Residing At Chennai Since That Time. She Filed A Complaint Against Her Husband And In Laws At Chennai And The Accused Were Summoned On Her Complaint. It Was Held By Hon'ble Supreme Court That There Was No Allegation To This Fact In The Entire Complaint That Any Offence Was Committed By The Accused Persons With Her When She Was Residing At Chennai, And So The Court At Chennai Had No Jurisdiction To Take Cognizance Of The Offences And So The Proceedings Pending Before The Magistrate At Chennai Were Quashed, And It Was Ordered That The Complaint Should Be Returned To The Complainant So That She May File It, In The Court, Having Jurisdiction In The Matter.
Let Me Now Consider Applicability Of The Above Ruling To The Facts Of The Present Case. In This Connection, It Is To Be Seen That It Has Been Specifically Pleaded In Para 1 & 2 Of The Complaint. (A Copy Of Which Has Been Filed As Annexure 3 To The Affidavit Filed In Support Of The Application Under Section 482 Cr. P.C.) That The Marriage Of The Complaintant Opposite Party No. 2 Had Taken Place With The Accused Mahendra Pal At Her Paternal House In Shyam Nagar, Aligarh And At The Time Of Marriage, The Items Mentioned In List (1) Of The Complaint Were Given To The Accused Persons With The Purpose Of Delivery To The Complainant On Reaching Her Father In Laws' House. Thus, According To The Aforesaid Two Paragraphs Of The Complaint The Entrustment Of The Items Took Place At Shyam Nagar, Aligarh At The Time Of Marriage Of The
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complainant With Accused No. 3 Mahendra Pal, And When The Entrustment Was Allegedly Done At Aligarh, The Court At Aligarh Has Got Jurisdiction To Take Cognizance Of The Offence And The Above Ruling Of The Hon'ble Supreme Court Does Not Render Any Help To The Accused-applicants As The Facts Of The Ruling Are Different From Those Of The Present Case. In The Above Case No Part Of The Offence Had Taken Place At Chennai.
Learned Counsel For The Applicant Also Cited Before Me A Ruling Of This Court In The Case Of Km. Meera & Others Vs. State Of U.P. & Another 2007 (1) JIC 720 (All). This Was Also A Case Under Section 406 I.P.C. And The Allegations Were That The Accused Had Committed An Offence Under Section 406 I.P.C. Besides Impleading The Husband Of The Complainant, His Elder Brother, Mother, Married Sister And Unmarried Sister Were Also Implicated As Accused Persons. The Learned Magistrate Summoned All The Accused Persons Under Section 406 I.P.C., And Against That Summoning Order, An Application Under Section 482 Cr. P.C. Was Filed In That Case. It Was Held By This Court That As The Primary Entrustment Of The Property Of The Wife Is With The Husband, It Should Be Deemed To Be Confined To Him Alone, And If The Article Was Given To Another Person By The Husband, That Person Cannot Be Held Responsible For Misappropriation Because There Is No Direct Relationship Between The Wife And That Person, And Since The Entrustment Is With The Husband Alone, Other Family Members Cannot Be Said To Have Committed The Offence Of Misappropriation. The Above Ruling Applies With Full Force To The Facts Of The Present Case Also. In This Case Also The Husband And His Mother And Sister Had Been Implicated As Accused Persons For Committing The Offence Under Section 406 I.P.C. In Respect Of Misappropriation Of Stridhan Of Complainant Opposite Party No. 2. According To The Complainant The Entrustment Of Stridhan Was Done With The Accused At The Time Of Her
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marriage At Aligarh. It Is To Be Seen That Entrustment Was To Take Place With The Husband Only As There Could Not Be Any Joint Entrustment With The Husband, His Mother And Sister. There Is No Such Case Of The Complainant Opposite Party No. 2 That Some Items Were Entrusted With Her Husband And Some With Her Mother-in-law And Some With Her Sister-in-law. Under These Circumstances, Entrustment Of Her 'Stridhan' And The Items Of Dowry Shall Be Treated To Have Been Done With Her Husband At The Time Of Marriage. Since There Is No Direct Relationship Between The Wife And Other Miscreants, The Entrustment Of 'Stridhan' Shall Be Treated To Be With The Husband Alone And The Husband Alone Shall Be Held Responsible, If He Misappropriated Those Articles Or Gave Them To His Mother And Sister.
Hence, I Am Of The View That No Prima Facie Case Under Section 406 Is Made Out Against The Accused Applicants Smt. Prakash Kaur And Harmeet Kaur Alias Pinky And So Permitting The Case To Proceed Against Them Under Section 406 I.P.C. Would Amount To Abuse Of The Process Of The Court And So The Application Under Section 482 Cr. P.C. Deserves To Be Partly Allowed In Respect Of Accused Applicants No. 1 & 2 Smt. Prakash Kaur And Harmeet Kaur Alias Pinky.
The Application Under Section 482 Cr. P.C. Is Therefore Partly Allowed To This Extent Only That The Summoning Order Passed By The Learned Magistrate Against The Applicants Smt. Prakash Kaur And Harmeet Kaur Alias Pinky Is Set Aside And The Complaint Against Both These Applicants Is Quashed. However, The Order Of The Learned Magistrate Taking Cognizance Of The Offence Under Section 406 I.P.C. Against Accused Applicant No. 3 Mahendra Pal Is Maintained And It Can Proceed Against Mahendra Pal In Accordance With Law.
The Application Under Section 482 Cr. P.C. Is Disposed Of With The Above Order.

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