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Dr. Satya Narayan Chowdhuri-vs-State Of West Bengal And Anr. on 9 September, 1997

Calcutta High Court Dr. Satya Narayan Chowdhuri-vs-State Of West Bengal And Anr. on 9 September, 1997
Equivalent citations:1998 CriLJ 928
Author: D B Dutta
Bench: D B Dutta

ORDER

Disbyendu Bhusan Dutta, J.

1. The order dated 16-5-97 passed in M.P. Case No. 367(S) of 1997 by the learned Sub-Divisional Magistrate, Sadar, Hooghly forms the subject, matter of the challenge in the instant revisional application filed under Sections 401 and 482 of the Code of Criminal Procedure.

2. The said M.P. case arose out of an application that was filed by the wife/opposite party No. 2 under Section 94 of the Code of Criminal Procedure praying for recovery of certain properties mentioned in the schedule annexed to that petition on the strength of a Search Warrant to be issued against the husband-petitioner. The averments made in the said application under Section 94 of the Code of Criminal Procedure may be stated as follows :

The marriage between the petitioner and Opposite Party No. 2 took place on 25-1-91. At the time of marriage the father and the relatives of the wife-opposite party gave a sum of Rupees 25,000/- in cash and the articles mentioned in the schedule annexed to the petition to the husband as per demand of the husband and his relatives. After marriage the husband and his father demanded Rs. 80,000/- from the father of the wife for starting Nursing Home, but the wife’s father expressed his inability to accede to that demand. As a result, the husband became furious and started torturing the wife physically and mentally and abusing her in vulgar languages and threatened her with dire consequences. On 26th August, 1996 at the instigation of his relatives, the husband drove the wife out of the matrimonial home along with her child keeping all the articles mentioned in the schedule in their custody saying that the door of the matrimonial home would remain closed for her in case she failed to procure money that was demanded by the husband for starting Nursing Home. Since then, the petitioner started living in her father’s house. To explore the chance of a mutual settlement, a meeting was held on 6-10-96 at the residence of the husband and the wife returned to matrimonial home on 13-10-96 with the hope of leading a normal conjugal life. But after the lapse of some time her hopes were belied. Her husband started ill-treating as before and finally on 21-1-97 the wife was forced to leave the matrimonial home along with her child and the husband dishonestly misappropriated the scheduled properties which belonged to the wife. The wife is a teacher by profession. Since 21-1 -97 she has been staying in her father’s house. It is reported that the husband has been trying to sell the ornaments and other articles that were gifted by the father of the wife at the time of marriage. Although in paragraph 9 it has been specifically alleged that the husband has dishonestly misappropriated the scheduled properties, in paragraph 12 it has been also alleged that the husband might misappropriate all the scheduled articles and that such conduct on the part of the husband amounted to nothing but a criminal breach of trust. The wife had to lodge a complaint with the Chinsurah P.S. on 4-5-97 against the husband and his other inmates of the matrimonial home and on the basis of the said complaint Chinsurah P.S. Case No. 153 of 97 has been started under Sections 498(1) and 406 of the Indian Penal Code. It is reasonably apprehended that the properties might be usurped by the husband as a result of which the wife would suffer irreparable loss and injury, O.C., Chinsurah Police Station was requested to recover the properties but he advised the wife to bring an order of search warrant against the husband. And hence this application under Section 94 of the Code of Criminal Procedure.

3. On the basis of this application under Section 94 of the Code of Criminal Procedure, the learned Magistrate by his order No. 1, dated 16-5-97 recorded his satisfaction that the husband had forcibly kept the scheduled articles in his custody with a view to misappropriate them and that immediate recovery of the said articles from the illegal custody of the husband was expedient and in such view of the matter the learned Magistrate ordered issuance of search warrant under Section 94 of the Code of Criminal Procedure directing the O.C. Chinsurah Police Station to’ search the matrimonial home in order to recover the scheduled articles as per identification of the wife and seize them for further orders towards their delivery to the wife. The learned Magistrate fixed 2-6-97 as the date for production of the articles.

4. There is no dispute that the recovery and seizure of some articles were effected on 18-5-97 by the police in execution of the search warrant that was issued in terms of the order No. 1, dated 16-5-97. There is also no dispute, that the wife moved the learned Magistrate by filing a petition for taking custody of the seized articles. The said application was heard by the learned Magistrate in presence of the husband who had been represented through his lawyer on 19-5-97. It was submitted on behalf of the wife that the seized articles were lying loaded in a lorry at the Police Station and were likely to be damaged if they were kept in that state. Certain documents were submitted on behalf of the wife and the learned Magistrate found that all the seized articles were not, however, covered by money receipts etc. as submitted on behalf of the wife. It was, submitted on behalf of the wife before the learned Magistrate at the time of hearing of the said application for custody of the seized articles that some of the money receipts, challans in respect of some of the articles were missing, but then she had purchased all the articles herself as she was employed in the School. There is no dispute that the learned Magistrate disposed of the application for custody of the seized articles by his order passed on 19-5-97. The said order does not, however, recite the submissions that were made on behalf of the husband. The fact remains that by that order the learned Magistrate ordered the articles to be given in the Zimma of the wife on execution of a bond for a sum of Rs. 50,000/- subject to the condition that the seized articles would have to be produced before him or any other competent Court as and when called for and that the seized articles shall not be transferred or taken out of the District. Curiously enough, by the said order, the learned Magistrate also gave opportunity to the husband to file objection and made it clear that the matter would come up for further hearing on 20th July, 1997. On the date of passing of that order, that is to say, on 19-5-97 the bond was furnished on behalf of the wife and the learned Magistrate appears to have accepted the bond and directed the release of the concerned articles to the wife.

5. It is not disputed by the parties that the husband moved an application under Section 408 of the Code of Criminal Procedure on that very date, that is, on 19-5-97 before the learned Sessions Judge for transfer of the M.P. Case in question and the learned Sessions Judge was pleased to stay the operation of the order whereby the learned Magistrate directed the release of the seized articles to the wife.

6. In such state of affairs the husband preferred the instant revisional application challenging the legality of the order whereby the learned Magistrate issued search warrant. The husband in this application has controverted the allegations that were made on behalf of the wife regarding the torture. On the contrary the husband has sought to make out a case that because of rough, behaviour and conduct of the wife-opposite party the husband-petitioner was compelled to file a, matrimonial suit, being Mat. Suit No.316/96,, under Section 13 of the Hindu Marriage Act before the learned District Judge, Hooghly on 7-9-96. The husband further alleged that subsequently at the request of some well wishers and friends he decided not to proceed with the suit as the wife was eager to return to her matrimonial home and that in such circumstances the petitioner-husband did not take any steps and allowed the suit to be dismissed! on (26-3-97. The husband-petitioner’s further case is that the wife-opposite party returned to the matrimonial home on 3-1 -97 and again she started ill-treating with the petitioner-husband as a result of which the petitioner was forced to file another matrimonial suit, being Mat. Suit No. 147/97 under Section 13 of the Hindu Marriage Act before the learned District Judge, Hooghly on 3-5-97, a day preceding the date on which the wife lodged the complaint under Sections 498A and 406 of the Indian Penal Code against the husband-petitioner.

7. The legality of the impugned order was sought to be challenged on behalf of the husband- petitioner on the following grounds. The application under Section 94 of the Code of Criminal Procedure was moved by the wife without service of any notice upon the petitioner and the learned Magistrate proceeded ex parte with that application. The learned Magistrate acted illegally and without jurisdiction by not recording his satisfaction on the question that the properties in respect of which search warrant was issued were stolen properties or stridhan properties of the wife. The impugned order suffers from non-application of mind on the part of the learned Magistrate and as such the impugned order is liable to be quashed.

8. Mr. Biplab Mitra, learned Advocate with Mr. Sanat Chowdhury, learned Advocate appearing for the husband-petitioner referred to the Supreme Court decision in the case of V.S. Kuttan Pillai v. Ramkrishan and a single Bench decision of the Delhi High Court in the case of Shyam M. Sachdev v. The State reported in 1991 Cri LJ 300, in support of his contention that the learned Magistrate was not at all justified in issuing the search warrant.

9. Mr. Y. Z. Dastoor, learned Advocate with Mr. Asim Kr. Ray, learned Advocate appearing for the wife/opposite party supported the impugned order and submitted that the learned Magistrate was not bound to record his reasons in writing before he issued the search warrant and that the properties in question being all stridhan properties, the wife is their absolute owner and as such the magisterial order for issuance of search warrant could not be faulted. Mr. Dastoor cited one Calcutta decision and two Supreme Court decisions in support of his contention. The decisions are (Manicklal Mondal v. The

State), (Pratibha Rani v. Suraj Kumar) and

(Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada).

10. Mr. Sudipta Moitra, learned Advocate with Mrs. Krishna Ghosh appearing for the State also supported the impugned magisterial order.

11. Section 91 of the Code of Criminal Procedure empowers a Court to issue a summons to a person, in whose possession or power any document or thing is believed to be lying, requiring him to attend and produce it whenever that Court considers its production necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under the Code.

12. Section 93 specifies three alternative conditions under which search warrant may be issued by a Court, namely, (1) that the Court has reason to believe that a person to whom a summons or order under Section 91 or a requisition under Sub-section (1) of Section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or (ii) where such document or thing is not known to the Court to be in the possession of any person, or (iii) where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code, will be served by a general search or inspection.

13. Section 94 of the Code of Criminal Procedure empowers any District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class to issue a search warrant whenever he has reason to believe, upon information and after such inquiry, as he thinks necessary, that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any objectionable articles.

14. The impugned search warrant was, in the instant case, issued under Section 94 of the Code of Criminal Procedure and the purpose for which the issuance of search warrant was considered necessary under this Section was connected with recovery of stolen property and not of any objectionable articles as specified in different Clauses of Sub-section (2) of Section 94. The term ‘stolen property’ is defined in Section 410 of the Indian Penal Code. It is such property, the possession whereof has been transferred by theft or by extortion or by robbery and such property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed. In the instant case, the properties in question are said to be the properties in respect of which criminal misappropriation or criminal breach Of trust is alleged to have been committed.

15. Criminal misappropriation is constituted by dishonest misappropriation or conversion to one’s own use any movable property as contemplated under Section 403 of the Indian Penal Code and Explanation I to Section 403 provides that a dishonest misappropriation for a time only is a misappropriation within the meaning of this Section. Criminal breach of trust, on the other hand, is committed whenever there is dishonest misappropriation or conversion to one’s own use in respect of a property in respect of which there has been an entrustment or dominion in favour of the person who dishonestly misappropriates or converts to his own use.

16. In (Manicklal Mondal v. The State), a Division

Bench of this Court was considering the scope of Section 96 of the old Code of 1898 which corresponds to Section 93 of the new Code. It was held by this Court in that decision that the Magistrate is not bound to record his reasons in writing before he issues the search warrant. It observed: “All that the Section says is that the Magistrate must have reasons to believe that such is the state of affairs. In other words, the Magistrate must himself be satisfied that there is necessity for search warrant to be issued as otherwise the thing would not be produced. Apart from this, it appears that there were ample materials on which search warrant could have been issued by the learned Magistrate”. Thus, according to this decision, there would not be any illegality committed by the learned Magistrate if he does not record his reasons in writing before issuing the search warrant.

17. In (V.S. Kuttan Pillai v. Ramakrishnan) the

Supreme Court was considering the magisterial powers of issuing search warrant under Clauses (b) and (c) of Sub-section (1) Section 93 of the new Code. The Supreme Court held that issuance of search warrant is a serious matter and it would be advisable not to dispose of the application for search warrant in a mechanical manner or by laconic order and that issuance of search warrant, being in the discretion of a Magistrate, it would be reasonable to expect of the Magistrate to give reasons which swayed the Magistrate’s discretion in favour of granting the request. The Supreme Court further held that a clear indication of mind by the learned Magistrate must be discernible in the order granting the search warrant. It is submitted on behalf of the petitioner that the above principles laid down by the Supreme Court in relation to search warrant under Section 93 of the new Code would equally hold good in relation to search warrant under Section 94 of the (new) Code and no argument was advanced on behalf of the opposite parties to controvert this submission.

18. In 1991 Cri LJ 300 (Shyam M. Sachdev v. The State), which relied on the Pillai’s case (1980 Cri LJ 196) (supra) it was held that the order issuing search warrant must show that the Magistrate applied his mind and that the Magistrate is not having unfettered discretion to issue search warrant. The order, according to this decision, cannot be arbitrarily made and must be held to be illegal if it is passed without the necessary application of mind. Exercise of discretion must be judicial and is not the subjective satisfaction of the Magistrate.

19. In (Smt. Rashmi Kumar v. Mahesh Kumar Bhada), a three, Judge Bench of the Supreme Court was giving a fresh look to the ratio of an earlier decision of the Supreme Court in Pratibha Rani v. Suraj Kumar, a decision by a majority of 2 : 1, . The Supreme Court in ultimate analysis held that they were in respectful agreement with the majority view in Pratibha Rani’s case and was of the view that the said case consequently required no reconsideration. According to the ratio of these two decisions of the Supreme Court in Pratibha Rani and in Smt. Rashmi Kumar, the stridhan properties are the properties gifted to the bride before a marriage or at the time of marriage or at the time of any farewell or thereafter. Onc6 the property is held to be stridhan property, the law is settled that it is wife’s absolute property with all rights to dispose at her own pleasure and that the husband has no control over the stridhan property. It is also settled law that the stridhan property does not become a joint property of the wife and husband and the husband has no title or independent dominion over the property as owner thereof.

20. Section 94 of the Code of Criminal Procedure requires a Magistrate, before issuance of search warrant, to conduct an inquiry before he can have reasons to believe that the property in respect of which the search warrant is sought to be issued is a stolen property. Of course, the scope, nature and character of such inquiry has not been categorically defined in the Section. The word ‘inquiry’ is followed by the expression “as he thinks necessary”. The impugned order does not at all suggest that an inquiry was at all launched by the learned Magistrate before he issued the order of search warrant in the instant case.

21. In the petition under Section 94 of the Code of Criminal Procedure, the wife petitioner (sic) has nowhere categorically stated that the scheduled properties were her stridhan properties. The averments in this behalf are made in paragraph 3 of the petition which goes to suggest as if all the properties described in the schedule annexed to the petition were given by her father and other relatives to the husband as per demand of the husband and his other relatives. It does not say that the properties were gifted to the wife. I have already observed that the Supreme Court has categorically laid down that stridhan properties are only those which are gifted to the bride before the marriage or at the time of marriage or at the time of giving farewell or thereafter.

22. On a scrutiny of the schedule annexed to the petition, we will find that the properties described therein may be classified as (1) ornaments, gold and silver; (ii) utensils made of silver and other metals, such as, Aluminium, steel or glass; (iii) Beddings’; (iv) Furniture, steel and wooden; (v) electrical goods such as, refrigerator, T. V., V. C.P. Tape recorder, Transistor; (vi) other miscellaneous valuable articles, such as, Cooker, Filter, Table clock or fan; (vii) wearing apparels, such as, sarees, wrist watch, shawl and also things not only of the wife but also of her son and maid servant; (viii) toys, (ix) School bags and books, and (x) important documents/certificates. The Schedule describes in details who gave which of the ornaments. Regarding the utensils and other articles, such details are wanting meaning thereby that these were also given to the husband by the wife’s father and relatives at the time of marriage as alleged in paragraph 3 of the petition. Further scrutiny of the schedule will at once bring to light that amongst the ornaments, there are some ornaments such as, gents chain and gents finger rings, which on the face of them cannot be the properties of the wife. Rather, they are intended to be meant for exclusive use of the husband. Similar is the case with regard to gents wrist watch which is included in the wearing apparels enlisted in the schedule. The gents wrist watch is certainly not the property of the wife and was intended to be used exclusively for the husband. There are many articles which from the nature and character would go to suggest that they were meant for joint user by the couple. It is, indeed, not understood as to how clothings particularly of son and maid servant could find their places in the list of articles in respect of which search warrant was sought to be issued. The toys are certainly not the properties of the wife. They, prima facie, appear to be the properties of the son of this couple. Similar is the case with the articles described as School bags and books. The nature of the important documents and certificates enlisted in the schedule has not at all been specified.

23. In the impugned order dated 16-5-1997, the learned Magistrate records the fact that the properties described in the schedule were all given to the wife by her father, but it is not clear as to how she could ascertain this fact. At least the petition does not say so.

24. Incidentally, it may be pointed out that in the subsequent order dated 19-5-97, the learned Magistrate records the submissions that were made on behalf of the wife in connection with her prayer for custody of the seized articles that she had purchased all the articles. This certainly did not constitute the correct respresentation of her case that was made out in the petition itself. The seizure list is not made available before this Court for the purpose of ascertaining as to which of the articles described in the schedule annexed to the petition were actually seized.

25. At the risk of repetition it must be pointed out again that issuance of search warrant is a serious matter. The application for search warrant should not be disposed of in a mechanical way or by a laconic order. The application of mind by the learned Magistrate must also be discernible in the order granting search warrant, as laid down by the Supreme Court in Kuttan Pillai’s case (1980 Cri LJ 196) (supra).

26. Thus giving the matter my anxious consideration from all possible angles, I have no hesitation to hold that the impugned order of issuance of search warrant was not strictly in conformity with the provisions of Section 94 of the Code of Criminal Procedure and the law laid down by the Supreme Court, I am afraid, the learned Magistrate has not really applied his mind before he issued the search warrant. The impugned order is accordingly not sustainable in law.

27. But then, the fact remains that the order has been fully carried into effect. The search, recovery and the seizure have all been accomplished in execution of the search warrant that was issued in terms of the impugned order dated 16-5-97. As such, there is no point in unsettling the accomplished fact, but then the fact also remains that the seized articles have not actually been released to the wife in terms of the order dated 19-5-97 in view of the stay obtained by the husband from the learned Sessions Judge in the proceeding initiated by the husband under Section 408 of the Code of Criminal Procedure. In the circumstances, I am of the view that it is a fit case for invoking the inherent jurisdiction of this Court for interference with the order that was passed by the learned Magistrate in regard to the release of the seized articles. Although the order dated 19-5-97, whereby the learned Magistrate directed the release of the seized articles to the petitioner on execution of a Zimma subject to certain conditions, does not form the subject-matter of specific challenge by the husband-petitioner in the instant revisional application, but then the said order itself suggests that the learned Magistrate himself was pleased to give opportunity to the husband to file objection against the wife’s prayer for custody of the seized articles. It is, indeed, a novel procedure adopted by the learned Magistrate when he fixed the date for further hearing of the matter and invited objection from the husband against the prayer of the wife for custody of the seized articles and yet at the same time ordered the release of the articles on execution of a bond and even accepted the bond and finally directed the release of the articles, long before the date that was specifically fixed by him for further hearing of the matter. Interest of justice demands that such orders should not be allowed to stand. The order dated 19-5-1997 whereby the learned Magistrate directed the release of the articles in favour of the wife on execution of the bond and the subsequent order accepting the bond and directing the release of the articles to the wife must accordingly be quashed.

28. In the result, the revisional application succeeds in part. The order passed by the learned Sub-Divisional Magistrate directing the release of the seized goods in favour of the wife on execution of Zimma is hereby set aside. The learned Magistrate is directed to dispose of the matter regarding custody of the seized goods in accordance with law in the light of the observations made above, as expeditiously as possible and preferably within a period of two weeks from the date of communication of this order. Let this order be communicated to the learned Magistrate at once.

29. The above order is pronounced and delivered by dictation in open Court in presence of the learned counsels of all the parties. At this stage, it is brought to my notice that the husband has already moved an application under Section 408 of the Code of Criminal Procedure for transfer of the proceeding from the concerned Magistrate alleging bias against the Magistrate and that the operation of the magisterial order directing the release of the goods remains already stayed by the Sessions Judge at the instance of the husband-petitioner and that the proceeding for transfer under Section 408 of the Code of Criminal Procedure is still pending adjudication. The learned counsels of the petitioner- husband and the wife-opposite party pray for fixing the matter tomorrow in the list as “For Judgment” so that they could take instructions from their clients and make further submissions and throw further light on this point. In the circumstances, let the matter also appear tomorrow in the list as “For Judgment’. 10-9-1997 for the petitioner gives a verbal undertaking on instruction from his client that in view of the fact that the concerned Magistrate has since been transferred from the District concerned, his client shall withdraw the proceeding that has been . initiated at his instance under Section 408 of the Code of Criminal Procedure pending in the Court of the Sessions Judge, Hooghly within a week from this date. Mr. Y. Z. Dastoor, learned Advocate for the wife/opposite party is present.

31. In view of such undertaking which, I believe, will be complied with within a week from this date, the question of vacating the stay granted by the learned Sessions Judge, Hooghly by this Court does not arise.

32. Xerox certified copy of the order, if applied for, be given to the parties, as expeditiously as possible.

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