Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Sec. 406 IPC- No Offence Made Out Without Entrustment Of Property
JUDGEMENT TITLE : Nagendra Kumar And Others Vs. State Of U.P. And Another On 19/03/2008 By Allahabad High Court
CASE NO : APPLICATION U/S 482 NO. 5385 OF 2007
CORAM : Hon'ble Raghunath Kishore Rastogi,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Court No. 53
Criminal Misc. Application No. 5385 Of 2007.

Nagendra Kumar & Others ......Vs..........State Of U.P. & Another


Hon'ble R.K.Rastogi, J.
This Is An Application Under Section 482 Cr. P.C. To Quash The Summoning Order Dated 16.01.2007 Passed By The Learned Chief Judicial Magistrate, Allahabad In Complaint Case No. 2652 Of 2006 Smt. Ranjana Vs. Nagendra & Others
The Facts Relevant For Disposal Of This Application Are That The Complainant Opposite Party No. 2 Filed The Aforesaid Complaint Against The Accused Applicants With These Allegations That Her Marriage Had Taken Place With Accused No. 1 Nagendra Kumar In The Year 2004 And Sufficient Dowry Was Given To Her Husband And In Laws At The Time Of Marriage. The Accused No. 2 Ram Bahadur Is Her Father-in-law, Accused No. 3 Raghurani Is Her Mother-in-law, Accused No. 4 Km. Manju Is Unmarried Sister-in-law (Nanad), Accused No. 5 And 6 Rajendra Kumar And Mahendra Kumar Are Her Brothers-in-law (Jeth), Accused No. 7 And 8 Smt. Kusum Devi And Smt. Babita Are Wife Of Rajendra Kumar And Mahendra Kumar, Respectively They All Are Residents Of Village Agarpatti, P.S. Phoolpur, District Allahabad..
It Is Alleged That All These Accused Were Committing Atrocities Upon Her In Connection With Demand Of Dowry And On 02.10.2006 They After Keeping Her Stridhan Whose Particulars Were Given In The List Attached With The Complaint, Beat Her With Fists And Legs And Forced Her To Leave The House. Then She Came To Her Parent's House And Went To Police Station Phoolpur To Lodge A Report Of The Incident, But Due To Pressure Of The Accused, The Report Was Not Lodged. She Also Informed The S.S.P. About This Incident, But Of No Avail. Then She Filed This Complaint Under Section 406 I.P.C.
The Complainant Examined Herself Under Section 200 Cr. P.C. And Her Mother Vimla Devi And Witness Ashok Kumar Under Section 202 Cr.P.C. The Learned Magistrate, After Taking The Above Evidence, Was Of The View That There Appeared A Case Under Section 406 I.P.C. Against All The Accused Persons. Hence He Passed Order For Summoning Them As Accused Persons. Aggrieved With That Order, The Accused Filed This Application Under Section 482 Cr.P.C. The Applicants Filed Affidavit Of Nagendra Kumar Applicant No. 1 In Support Of This Application Under Section 482 Cr.P.C. A Counter Affidavit Of The Complainant Smt. Ranjana Was Filed In Reply To The Above Affidavit Of Nagendra Kumar. Nagendra Kumar Filed Rejoinder Affidavit Also In Reply To The Counter Affidavit.
I Have Gone Through All These Documents And Have Also Heard Learned Counsel For Both The Parties. The Learned Counsel For The Applicant First Of All Submitted Before Me That To Constitute An Offence Under Section 406 I.P.C It Is Very Essential That There Must Be Entrustment Of The Property With The Accused And In This Connection He Referred To Section 405 I.P.C. Which Defines The Offence Of Criminal Breach Of Trust; And Runs As Under:
" Whoever, Being In Any Manner Entrusted With Property, Or With Any Dominion Over Property, Dishonestly Misappropriates Or Converts To His Own Use That Property, Or Dishonestly Uses Or Disposes Of That Property In Violation Of Any Direction Of Law Prescribing The Mode In Which Such Trust Is To Be Discharged, Or Of Any Legal Contract, Express Or Implied, Which He Has Made Touching The Discharge Of Such Trust, Or Wilfully Suffers Any Other Person So To Do, Commits "criminal Breach Of Trust".

Learned Counsel For The Applicant Submitted That In This Case There Is No Specific Averment In The Entire Complaint To This Effect That The 'Stridhan' Of The Complainant Was Entrusted With Any Accused. He Referred To Para 6 Of The Complaint. It Runs As Under:-
"Dinank 02.10.2006 Ko Abhiuktgan Ne Prarthini Ka Sara Saman Jo Suchee Me Diya Gaya Hai Rakh Liya Tatha Prarthini Ko Lat Ghooson Se Markar Ghar Se Nikal Diya"

He Also Referred To The Statement Of Smt. Ranjana Under Section 200 Cr.P.C. The Relevant Portion Of Which Is As Under:

"Dinak 02.10.2006 Abhiuktgan Ne Laat, Ghooson Se Markar Ghar Se Nikal Diya Aur Pichhe Suchi Me Varnit Sara Saman Rakh Liya"

He Submitted That The Aforesaid Allegations Made In The Complaint As Well As In The Statement Of The Complainant Do Not Make Out Any Specific Case Of Entrustment As Defined In Section 405 I.P.C. Because There Is No Specific Allegation To This Effect That The 'Stridhan' Of The Complainant Was Entrusted With The Accused Persons. He Further Submitted That The Complainant Has Nowhere Specifically Stated As To With Whom Her 'Stridhan' Was Entrusted Because There Could Not Be Any Joint Entrustment Of The Stridhan With Father-in-law, Mother-in-law, Nanad (Sister-in-law) Two Jeths And Two Jethanis Arrayed As Accused Persons, And The Complainant Should Have Come With A Specific Case As To With Whom Out Of Seven Accused, I.e. Her Husband, Father-in-law, Mother-in-law, Brothers-in-law & Sisters-in-law, Her Stridhan Was Entrusted, And Then The Proceedings Under Section 406 I.P.C. Could Be Drawn Against That Person Only With Whom Entrustment Of The 'Stridhan' Was Made.
Learned Counsel For The Complainant Referred To Para 6 Of The Counter Affidavit In Which The Complainant Opposite Party No. 2 Has Stated :
"Shapathkartri Ko Dinank 02.10.2006 Ko Dahej Ke Liye Mara Pita Gaya Tatha Uske Sharir Par Ke Gahne Utarva Kar Mara Pita Gaya Tatha Ghar Se Nikal Diya Gaya"

He Also Referred To Para 12 Of The Counter Affidavit In Which It Has Been Stated That:

"Shapathkartri Ko Dinank. 02.10.2006 Ko Mar Peet Kar Uske Jevrat Jabran Utarva Kar Ghar Se Bhaga Diya Gaya"

He Submitted That These Assertions Made In The Counter Affidavit Amount To An Offence Of Criminal Breach Of Trust. I Do Not Agree With The Above Contentions. There Is No Allegation To This Effect In The Above Paras That The Ornaments Etc. Were Entrusted With The Accused. Her Allegation Is That The Accused Forcibly Snatched Ornaments From Her Body, But These Allegations Do Not Amount To Criminal Breach Of Trust Though They May Amount To Robbery.
The Position, In This Way Is, That Virtually There Is No Evidence In Respect Of The Offence Of Criminal Breach Of Trust Either In The Complaint Or In The Statements Under Section 200 And 202 Cr.P.C. And As Such The Learned Magistrate Committed Legal Error By Summoning The Accused Under Section 406 I.P.C. Thus The Order Passed By Him Summoning The Accused Under Section 406 I.P.C. Is Liable To Be Set Aside And The Application Under Section 482 Cr. P.C. Deserves To Be Partly Allowed To This Extent Only. It Is Accordingly Partly Allowed And The Summoning Order Dated 16.01.2007 Passed By The Learned Chief Judicial Magistrate, Allahabad Is Quashed. Since There Are Allegations Against The Accused Persons In The Complaint, I Remand This Matter To Learned C.J.M., Allahabad With These Directions That He Should Further Hear The Complainant Again On The Point As To What Offence Is Prima Facie Made Out Against The Accused Persons And Then Pass Suitable Orders In The Matter. The Complainant Shall Be At Liberty To Produce Additional Evidence Under Section 202 Cr.P.C. Before The Magistrate In Support Of Her Case, And If Any Evidence Is Filed By The Complainant, The Magistrate After Recording Her Additional Evidence Under Section 200 And 202 Cr.P.C. And After Hearing The Complainant Shall Pass Suitable Orders In The Matter. The Application Is Under Section 482 Cr. P.C. Is Finally Disposed Of Accordingly.

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