HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment Reserved on : 12.09.2019
Judgment Delivered on : 31.10.2019
Court No. – 65
Case :- APPLICATION U/S 482 No. – 18183 of 2013
Applicant :- Laeek Ahmad And 9 Others
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Prem Shankar Mishra
Counsel for Opposite Party :- Govt. Advocate,Vikrant Gupta
Hon’ble Dinesh Kumar Singh-I,J.
Heard the arguments advanced by Shri Prem Shankar Mishra, learned counsel for the applicants, Shri Vikrant Gupta, learned counsel for opposite party no. 2 and Shri B.A. Khan, learned A.G.A. for the State of Uttar Pradesh.
2. This application under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Code’) has been moved on behalf of the applicants with a prayer to quash the summoning order dated 01.02.2013 passed by Additional Chief Judicial Magistrate, Court No. 9, Allahabad, in Case No. 238 of 2012 (SectionSmt. Fahmida Begum v. Laeek Ahmad and others), under Section 406 of the Indian Penal Code, 1860 (for short ‘SectionI.P.C.’), Police Station – Mahila Thana, District – Allahabad.
3. The main argument by learned counsel for the applicants is that earlier, the opposite party no. 2, who is wife of accused-applicant no. 1 Laeek Ahmad, had lodged an F.I.R., stating therein that the accused-applicants, soon after the marriage of opposite party no. 2, had started passing disparaging comments with respect to inadequate dowry having been given in the marriage from the parents of opposite party no. 2. Opposite party no. 2 began to be tortured and used to be abused and pushed by the family members of accused-applicant no. 1, who are co-accused in this case. The father-in-law and sister-in-law of the opposite party no. 2 were asking for Rs. 25,000/- cash, colour T.V. and a motorcycle and threatened her that in case her father would not fulfill the said demand of dowry, she would be killed. The other co-accused i.e. sisters of accused-applicant no. 1 were also making demand of colour T.V. and two tolas of gold chain and motorcycle for their brother and on 06.04.2006, the accused-applicant after beating opposite party no. 2, left her at Phoolpur Police Station and fled away from there and said that till the said amount of Rs. 25,000/- was not arranged, she would not be allowed to stay in her matrimonial house. The police has registered a case at Case Crime No. 157C of 2007, under Sections 498A, Section323, Section504, Section506 of I.P.C. and Section 3/Section4 of Dowry Prohibition Act at Police Station – Phoolpur, District – Allahabad against the accused-applicants, in which, after investigation, charge-sheet has been submitted and even charge has been framed by the trial court on 04.07.2011, copy of which is annexed at Page Nos. 39 and 40 of the Paper Book. It is further argued that the present case under Section 406 of I.P.C. has been initiated by opposite party no. 2 in order to harass the accused-applicants because she had an opportunity to give statement against the accused-applicant in the earlier trial and could not get the charge modified to one under Section 406 of I.P.C. because the occurrence in the present case is nothing but the same, as in fact, it is a matrimonial dispute out of which a false case under Section 406 of I.P.C. has been made out by opposite party no. 2 only in order to harass the applicants so that they may have to get themselves bailed out again in a fresh case.
4. On the other hand, learned counsel for opposite party no. 2 has argued vehemently that there is sufficient evidence on record to summon the accused. Attention of the Court was drawn towards statement of the victim/opposite party no. 2 under Section 200 of Code as well as the witnesses under Section 202 of the Code to substantiate argument and stated that the accused-applicants have usurped the articles given in dowry to opposite party no. 2 from her parents’ side, details of which have been mentioned in Paragraph No. 3 of the complaint. It is further mentioned in the said complaint that the accused-applicant have deprived the opposite party no. 2 of making use of the said articles and these articles are being used by the applicants, opposite party no. 2 has been driven out of her matrimonial home and offence under Section 406 of I.P.C. would be made out.
5. I have gone through the complaint. It is mentioned in it that marriage of opposite party no. 2 was performed with the applicant no. 1 on 09.08.2004, according to Muslim rites and at the time of marriage, about Rs. 50,000/- cash was spent by the parents of opposite party no. 2 along with various other articles/domestic items/jewellery which were of use of opposite party no. 2 in her matrimonial home were given, details of which are mentioned. It is further mentioned that when she reached at her matrimonial home after marriage, the accused-applicants had taken possession of these articles and started using them and destroyed these articles and had driven away opposite party no. 2. Subsequently, a compromise had taken place between the two sides with the promise that no further torture would be done and she would be kept in her matrimonial home, but the promise was not kept and soon thereafter, again she was started to be ill-treated and tortured and the said articles which are mentioned in Paragraph No. 3 of the complaint, were not returned to her, after which she had gone to lodge report at Mahila Police Station, which was not written. Thereafter, she submitted an application to the Mahila Thana and Senior Superintendent of Police, Allahabad, but to no effect, as her report was not lodged, whereafter she moved before the court concerned an application under Section 156(3) of the Code, which was treated as complaint case and the statement of opposite party no. 2 was recorded under Section 200 of the Code on 14.03.2012, wherein she, in support of the complainant’s version, had stated that at the time of marriage, an amount of Rs. 50,000/- along with other articles for domestic use worth Rs. 3,25,000/- were given and all these articles have been kept in possession by the accused-applicants and opposite party no. 2 used to be harassed continuously for additional dowry, for which she used to be beaten. Once, a compromise had taken place, but soon thereafter, she was began to be ill-treated and the entire jewellery and other articles were snatched away from her and she was left at Phoolpur Police Station to go to her parent’s home. The same facts and circumstances have been narrated by the two witnesses Raziuddin and Mohd. Harun, examined as P.W.1 and P.W.2, respectively, under Section 202 of the Code and thereafter, the accused-applicants have been summoned to face trial under Section 406 of I.P.C.
6. Ingredients of Section 406 of I.P.C. are as follows :
For offence under Sectionsection 406 IPC, following ingredients are required to be satisfied.
i) Entrusting any persons with property or with any dominion over property;
ii) The person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or wilfully suffering any other person to so to do in violation.
(i) of any direction of law prescribing the mode in which such trust is to be discharged,
(ii) of any legal contract made touching the discharge of such trust.
It is very much clear from the ingredients of Section 406 of I.P.C. that person is held to commit criminal breach of trust only when there is some entrustment of property to him, which he misappropriates. The said ingredients do not appear to have been fulfilled in the present case as nothing has come on record which would show that the articles of the property narrated in Paragraph No. 3 of the complaint had been entrusted to any of the accused-applicants. Therefore, this is a vague kind of allegation that the accused-applicants started using the articles of domestic need which were provided to opposite party no. 2 at the time of marriage for her own use. In my opinion, the same could not be inferred from the facts narrated in the F.I.R.. Hence, offence of criminal breach of trust does not appear to be made out against the accused-applicants on the basis of the averments made in the F.I.R. Moreover, it is evident from the facts on record, which have been narrated in the argument of the learned counsel for the accused-applicants that earlier, an F.I.R. was lodged against the same accused-applicants by the same opposite party no. 2, which was registered under Sections 498A, Section323, Section504, Section506 of I.P.C. and Section 3/Section4 of the Dowry Prohibition Act, in which the accused-applicants have got themselves bailed out and are facing trial as charge has already been framed. The subsequent summoning order for offence under Section 406 of I.P.C. clearly appears to have arisen out of the same occurrence. It is a matrimonial dispute between applicant no. 1 and opposite party no. 2. There are no new facts. The opposite party no. 2 had full opportunity to bring on record these facts which making earlier complaint/ F.I.R. that the articles she was provided at the time of marriage had been usurped by the accused-applicants, which appears to have not been done deliberately and it can be presumed that the same accused have again been got summoned through filing this complaint only with a view to harassing them as that would require them all to seek bail again. Therefore, it appears to be nothing but a malicious prosecution as per law laid down by Hon’ble Apex Court in SectionState of Haryana and Others v. Bhajan Lal and Others1 condition no. 7 whereof says as follows:
Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. ”
7. From the order of this Court dated 27.05.2013, it is apparent that quashing of the aforesaid proceedings has already been refused as against accused-applicant no. 1, but I find that as regards applicant nos. 2 to 10, offence under Section 406 of I.P.C. is not made out and it is nothing but a malicious prosecution of these accused-applicants, which needs to be quashed, in view of condition no. 7 in Bhajan Lal’s case (supra).
8. In view of the above, the proceedings against accused-applicant nos. 2 to 10 stand quashed. As regards accused-applicant no. 1, it would be fair to mention here Section 6 of the Dowry Prohibition Act. 1961 (for short ‘Act, 1961’), which provides that :-
(1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman– –(1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman–”
(a) if the dowry was received before marriage, within three months after the date of marriage; or
(b) if the dowry was received at the time of or after the marriage, within three months after the date of its receipt; or
(c) if the dowry was received when the woman was a minor, within three months after she has attained the age of eighteen years, and pending such transfer, shall hold it in trust for the benefit of the woman.
It is apparent from the above proposition of law that in the earlier case under Sections 498A, Section323, Section504, Section506 of I.P.C. and Section 3/Section4 of the Act, 1961 when the trial would proceed, it would be open for the opposite party no. 2 to adduce evidence in respect to claiming the articles which were given to her in dowry, from any of the accused who had received the articles as dowry at the time of marriage, to which she would be entitled to receive back within the aforesaid period as mentioned in Section 6 of the Act, 1961 and if the same is found to be proved on the basis of evidence on record, the trial court may frame charge under the relevant section of Act, 1961 and proceed with the matter accordingly. That would cause no prejudice to the opposite party no. 2 even if the present proceedings against the accused are quashed.
9. This Court further makes it clear that offence under Section 406 of I.P.C. cannot be said to be not made out against the husband-accused. Whatever was given at the time of marriage to his wife, would certainly be treated to have been given to him, which would be kept in trust for the benefit of his wife.
10. With the aforesaid observations, the instant application stands disposed of.
Order Date :- October 31, 2019
I. Batabyal [Dinesh Kumar Singh-I, J.]