Delhi High Court Indu Khanna & Ors vs State & Anr on 28 March, 2012Author: Mukta Gupta

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.REV.P. 566/2011

Decided on: 28th March, 2012

INDU KHANNA & ORS ….. Petitioners Through: Mr. R.K. Thakur, Advocate.

versus

STATE & ANR ….. Respondents Through: Mr. Manoj Ohri, APP with SI Naveen

Kumar, PS Mandawali, Delhi.

Coram:

HON’BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (Oral)

1. By the present petition the Petitioners who are sister-in-law and the

mother-in-law of the Complainant challenge the orders dated 10th August, 2011

and 13th September, 2011 directing and framing charges for offence under

Sections 498A/379/34 IPC against the Petitioner No. 1 and under Sections

498A/406/34 IPC against the Petitioner No. 2. When the matter came up for

hearing on 19th December, 2011 this Court after hearing learned counsel for the

parties issued notice limited to the extent of challenge to the impugned orders

framing of charge under Section 379 IPC against the Petitioner No. 1 as on the

facts on record the charge under Section 498A against the Petitioner Nos. 1 and

2 and under Section 406 against the Petitioner No.2 is clearly made out.

CRL.REV.P. 566/2011 page 1 of 5

2. Learned counsel for the Petitioners contends that on the allegations set

out in the FIR and the charge sheet, the ingredients of offence punishable under

Section 379 IPC is not attracted. Petitioner No. 1 has not removed the articles

of the complainant. Petitioner No. 1 was married thirteen years prior to the

marriage of the Complainant with her brother. The Petitioner No. 1 is a school

teacher living separately in her matrimonial home and has no interference in the

matrimonial home of the Complainant. Further no charge sheet for offence

under Section 379 IPC was filed against the Petitioner No. 1 and the learned

Trial Court erroneously framed the charge under the said section. There is no

averment that the Petitioner No. 1 knew that the jewellary belonged to the

Complainant. Further the objection of the complainant was not at the time

when the jewellery was given to the Petitioner No.1 by Petitioner No.2 but was

subsequently made. The allegations do not mention any specific date, time or

place. The source from where the dowry items were given has not been

disclosed. Hence the Petitioner no. 1 be discharged from the offence under

Section 379 IPC.

3. Learned APP for the State on the other hand contends that the allegations

against the Petitioner No. 1 are covered by Illustration- (o) to Section 378 IPC.

In Pratibha Rani vs. Suraj Kumar and another, AIR 1985 SC 628 it was held

that the articles of istridhan are the exclusive property of the woman and when

CRL.REV.P. 566/2011 page 2 of 5 the said exclusive possession is disturbed, then the allegations of

misappropriation and theft are made out. Reliance is also placed on Anil

Bhardwaj and others vs. State, 1985 (8) DRJ 75 and Kishan Chand vs.

State,(1985) 27 DLT 91. Further relying upon State of Madhya Pradesh vs.

Sheetla Sahai and others, 2009 (8) SCC 617 it is contended that if two views

are possible at this stage the order has to be of framing of charge and the

benefit of doubt to the accused can only be given only at the end of the trial.

4. I have heard learned counsel for the parties at length.

5. As per the charge sheet the Complainant has alleged offences under

Section 498A against the Petitioners and Section 406 IPC against the Petitioner

no. 2 besides other relations. However, the bone of contention in the present

petition are the allegations as set out herein below:

“No less than a direct torture, when my mother-in-law in my presence was giving my two gold sets, diamond ring and diamond earrings to her only daughter (my sister-in-law). When I objected, in turn my mother-in-law provoked my husband, who ill treated me in most cruel manner by pushing me the hardest to my bed room in front of his mother, even overlooked that I was carrying 3 months of very weak & fragile pregnancy. He told me brutally that “if you wish to remain happy then you will have to keep my mother and sister happy at any cost & by any means, better you understand” & shut the door of my bed room with a bang in full anger.”

6. A perusal of the allegations would show that the Petitioner No. 2 in the

presence of the Complainant gave her two gold sets, diamond ring and diamond

CRL.REV.P. 566/2011 page 3 of 5 earrings to the Petitioner No. 1. Certainly there is no allegation that the

Complainant entrusted the articles to Petitioner No. 1 hence no case under

Section 406 IPC is made out against Petitioner No.1. The issue is that on the

present allegations whether a charge under Section 379 IPC is made out or not.

Section 378 Illustration-(o) provides as under:

“(o) A is the paramour of Z’s wife. She gives a valuable property, which A knows to belong to her husband Z, and to be such property as she has no authority from Z to give. If A takes the property dishonestly, he commits theft.”

7. The Petitioner No. 1 was aware that these jewellery items did not belong

to Petitioner No. 2 and the Petitioner No. 2 had no authority from the

Complainant to give the jewellery articles to Petitioner No.1. Thus, the offence

under Section 379 IPC is clearly attracted. Similar view has been taken by this

Court in Anil Bhardwaj (Supra)”

“8. So far as the articles of dowry and presents which are given to the husband or the in-laws, may perhaps those also which are for common use and enjoyment, it can be said that there may not be misappropriation or theft. However, when the right of a spouse to own exclusive property is recognized, and so also dowry items intended for exclusive use of the bride, e.g. her personal jewellery and wearing apparels etc. are acknowledged, it would be wholly unjustified and unacceptable line of reasoning to say that when the wedlock has come to rock, the other party who is not the owner or entitled to the user thereof, can with immunity usurp and deprive the rightful owner of those properties. The language of S. 406 or S. 378 does not make any exception in this regard, and there is no justification to exclude the operation of their provisions qua victimized spouse, more so an unfortunate wife who is thrown out CRL.REV.P. 566/2011 page 4 of 5 of the matrimonial home in the clothes that she may be just wearing. It cannot be that she is just rendered into penury all of a sudden at the whim and fancy of the husband. Civil rights apart, when the requirements of criminal law are attracted, there is no point in ignoring them by escapist compulsions of what ought to be or what the age-old male dominated concepts have passed on from the past. Societies which are diseased with compulsive dowries, where the parents do attempt to do everything for their children to make a success of their marriages, and not unoften go beyond their means in this direction, cannot be passive spectators to either of the spouses indulging in high-handedness or appropriating every thing and throwing out the other to wilderness. The basic concepts of individual ownership cannot be in such circumstances ignored, and any violation of them must entail the consequences which otherwise in normal circumstances must flow.”

8. In view of the allegations against Petitioner No. 1, I findthat there is no

error committed by the learned Trial Court in framing the charge under Section

379 IPC against the Petitioner No.1.

9. Petition is dismissed.

MUKTA GUPTA, J.

MARCH 28, 2012

‘vn’

CRL.REV.P. 566/2011 page 5of 5