Court: Calcutta High Court
Bench: JUSTICE Dibvendu Bhusan Dutta
Ajoy KR. Ghosh Vs. Smt. Kajal Ghosh & Anr. On 16 March 1998
Law Point:
Sections 406 – There was neither any demand from side of complainant for return of her Stridhan properties nor any refusal on part of petitioners to return them — Absence of allegation of criminal breach of trust.
JUDGEMENT
The instant application under Section 401 read with Section 482 of Cr.P.C has been filed by the accused persons of CR 268 of 1996 for quashing of the said proceeding which is pending in the Court of SDJM, Sreerampore.
2. The said proceeding was started on the basis of a complaint lodged by the respondent opposite party No. 1 against her husband (petitioner No. 1), the brother of her husband (petitioner No. 2) and her father-in-law (petitioner No. 3) alleging commission of criminal breach of trust by the petitioners in respect of her movable properties. The opposite party No. 1 lodged the complaint on 19.6.1996 and also filed a petition under Section 94 of the Cr.P.C. praying for issuance of a search warrant for recovery of the articles in respect of which criminal breach of trust is alleged to have been committed. The learned Magistrate by his order dated 19.6.1996 took cognizance upon that complaint, issued process against the petitioners under Sections 403/406, IPC and allowed the prayer for search warrant. While issuing search warrant, the learned Magistrate had also directed the articles, which might be seized in execution of the search warrant, to be given in the zimma of the opposite party No. 1. It is alleged by the petitioners that the instant proceeding is mala fide and has been instituted only to harass and humiliate the petitioners. In the complaint, the opposite party No. l to tally suppressed the fact that he had earlier lodged a complaint with the P.S. on the basis of which Sreerampore P.S. Case No. 198 of 1996 was started under Section 498-A, IPC against the present petitioners. In the earlier complaint, the opposite party No. 1 did not disclose any thing about the commission of the alleged offences for which the present case was started. The present case is patently false and is a mere abuse of the process of the Court. The learned Magistrate did not properly apply his mind in issuing process under Sections 403 and 406 of IPC. The learned Magistrate should not have directed the properties to be seized in execution of the search warrant to be made over to the custody of the opposite party No. 1 without giving any hearing to the petitioners. The order dated 19.6.1996 is bad in law and is liable to be set aside.
3. During the hearing, the legality of the criminal proceeding and the magisterial order dated 19.6.1996 whereby the process was issued under Sections 403/406, IPC and the search warrant was issued with a direction to deliver the seized articles to the zimma of the opposite party No. 1 was challenged on several grounds. Let me deal with the grounds one by one.
4. First, it was contended that the alleged offence could either be one of criminal mis-appropriation punishable under Section 403, IPC or one of criminal breach of trust punishable under Section 406, IPC and as such, the magisterial order issuing summons under both the Sections 403 and 406 of IPC was patently wrong.
5. Section 403 requires dishonest mis-appropriation or conversion of movable property for a person’s own use while the offence of criminal breach of trust defined in Section 405 and punishable under Section 406 requires : (1) entrusting any person with property or with any dominion over property, (2) the person entrusted, (a) dishonestly mis-appropriating or converting to his own use that property or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction law prescribing the mode in which such trust is to be discharged or (ii) of any legal contact made touching the discharge of such trust. In case of criminal mis-appropriation, the property must be movable while in case of criminal breach of trust, the property is not restricted only to movable property. In criminal mis-appropriation, the property comes into the possession of the offender by some casualty or otherwise while in case of criminal breach of trust, die property comes into the possession either by an express entrustment or by some process placing the accused in a position of trust. But the ingredient which is common in both the cases is dishonest mis-appropriation, or conversion to one’s own use. In the case of criminal mis-appropriation no entrustment is necessary.
6. In the instant case, the allegation is that the petitioners had been entrusted with some movable properties belonging exclusively to the opposite party No. 1 and that they had dishonestly mis-appropriated those properties or converted them to their own use. The allegations would at once make out a case of criminal breach of trust punishable under Section 406, IPC and as there is allegation of dishonest mis-appropriation and/or conversion, it would also constitute an offence under Section 403, IPC. If the acts complained of attracted the provisions of both the Sections 403 and 406, IPC there could be no legal bar to issue process against the accused persons under both the provisions of IPC. Indeed, I do not find any illegality in the magisterial order only for the reason that it refers to both the Sections 403 and 406, IPC and not either of the two. In essence, the offence of criminal breach of trust, where it consists in the act of dishonest mis-appropriation or conversion to one’s own use some movable property by one entrusted with that property or dominion over that property, can be said to be the major offence in relation to the offence of criminal mis-appropriation of that property punishable under Section 403, IPC and Section 222 of Criminal Procedure Code permits conviction for a minor offence even though the accused is not charged with it in a case where the offence proved during trial is included within the offence for which the accused stood charged. It is only during the trial the evidence will be led and the question will fall for decision before the Trial Court as to which offence—whether the offence under Section 403 or the offence under Section 406 of IPC is proved beyond doubt by such evidence, so far as the petitioners or any of them are concerned. This is not the stage for going into that question and as such, the contention raised on behalf of the petitioners on this point does not merit any consideration at this stage.
7. The second contention is that there cannot be any joint entrustment of the alleged properties by the opposite party No. 1 in favour of all the three petitioners. The properties are said to be stridhan properties of the complainant which were given to her at the time of her marriage and which were taken by her to her matrimonial house. According to the petition of complainant, the opposite party No. 1 entrusted those properties to not only her husband, the petitioner No. 1, but also to the other two petitioners, for their safe custody. It is contended on behalf of the petitioners that such a story in inherently improbable.
8. It may be significant here to refer to the decision in Rashmi Kumar v. Mahesh Kumar, (1997) 2 SCC 397. In this decision a three-Judge Bench of the Supreme Court was considering the question whether the majority view of another three-Judge Bench of the Supreme Court constituting the ratio in Pratibha Rani v. Suraj Kumar, (1985) 2 SCC 370 was still holding good or required reconsideration. Both the cases related to a complaint filed under Section 406, IPC for criminal breach of trust by the husband on his refusal to return stridhan property of the wife. In the earlier case, the question that arose for consideration was whether the stridhan property was the exclusive property of the wife or was a joint property of both the spouses and the majority view was that the stridhan property was the exclusive property of the wife and that the failure to return the property in the custody of the husband to the wife constitutes criminal breach trust as defined in Section 405, IPC. The majority view in Pratibha Rani’s case (supra) was reiterated by the Supreme Court in Rashmi Kumar’s case (supra). The Supreme Court held :
“Properties gifted to the bride before the marriage, at the time of marriage or at the time of giving farewell or thereafter are her stridhan properties. It is her absolute property with all rights to dispose at her own pleasure. The stridhan property does not become a joint property of the wife and the husband and the husband has no title or independent dominion over the property as owner thereof”.
“Entrustment is not necessarily a term of law. It may have different implications in different contexts.”
“It is always a question of fact in each case as to how the property came to be entrusted to the husband or any other member of the family by the wife when she left the matrimonial home or was driven out therefrom. No absolute or fixed rule of universal application can be laid down in that behalf. It requires to be established by the complainant or the prosecution, depending upon the facts and circumstances of the case as to how and in what manner the entrustment of the stridhan property of dominion over her stridhan came to be made to the husband or any other member of the family or the accused person, as the case may be.”
9. Whether all the three petitioners can be said to have been entrusted with the concerned properties or with the dominion over those properties is again a question of fact to be decided on the basis of evidence; to be led during the trial and not at this stage. For the present, going by the averments made in the petition of complaint and the evidence recorded under Section 200, Cr.P.C., it cannot be said that the story of entrustment of the properties to each of the petitioners is something absurd of which no Magistrate could at all be expected to take cognizance.
10. The third contention is that the evidence recorded under Section 200, Cr.P.C. does not contain anything to suggest that there was entrustment. Now, it is settled law that before issuing the process the Magistrate is required to consider the averments made in the complaint as also the evidence recorded under Section 200, Cr.P.C. and it has been held by the Supreme Court in State of Bihar v. Rajendra Agarwalla, III (1996) CCR 162 (SC)=1996 SCC (Cr.) 628 that it is not the province of the Court at that stage to embark upon and sift or appreciate the evidence to come to the conclusion whether no prima facie case is made out for proceeding further in the matter. Upon consideration of all the averments made in the complaint as well as the evidence of the complainant herself and her brother recorded under Section 200, Cr.P.C., it cannot be said that they do not at all make out any prima facie case of entrustment.
11. Fourthly, it was contended that the present proceeding is false and, as such, its continuance constitutes an abuse of the process of the Court. It is submitted that falsity is proved by the very fact that no such case was at all made out in the earlier complaint on the basis of which Sreerampore P.S. Case No. 198 of 1996 was instituted only a month ago under Section 498A of IPC against the self-same petitioners.
12. In the earlier complaint, it was the specific case of the complainant that she came to her father’s house alongwith petitioner No. 1 on 13.5.1996 and when she returned to her matrimonial house with her mother on 17.5.1996 her husband and father-in-law were not present in the house. The petitioner No. 2 locked the house from inside and informed her that she was forbidden by the petitioner Nos. 1 and 3 to enter the house. Despite her repeated requests, the petitioner No. 2 did not open the door to let the complainant and her mother in. She was forced to go to the local police outpost with her mother and from that outpost she came back to her in-laws house alongwith some police constables who compelled the petitioner No. 2 to open the door. After keeping them in the house, the constables left and the petitioner No. 2 began to ill treat her and her mother. He also abused her. At night her husband returned and assaulted her in presence of her mother and also abused her mother. On the following morning on 18.5.1996, the petitioner Nos. 1 and 2, after physically assaulting the complainant forcibly made the complainant and her mother board the train and threatened them with dire consequences for her and her brothers in case they came back or went to P.S. It was under such circumstances that she lodged her earlier complaint on 19.5.1996 complaining of cruelty against each of the petitioners under Section 498-A, IPC. The offence of criminal mis-appropriation or criminal breach of trust, according to the complainant was yet to be committed because at that point of time, because there was neither any demand as yet, from the side of the complainant for return of her stridhan properties nor any refusal on the side of the petitioners to return them. According to the present complaint, the complainant opposite party No. 1 had been to her matrimonial house some time on 10th June, 1996 to take some of her personal belongings which were required for her daily use but the petitioners did not even allow her to enter into the house and refused to hand over her any of stridhan properties which were lying entrusted in the custody of the petitioners. It is after such refusal that the opposite party No. 1 has come forward with her present complaint of criminal breach of trust against the petitioners. It is therefore not understood how the mere fact that the opposite party No. 1 did not also complain of any offence of criminal breach of trust on 19.5.1996 the date on which she had lodged the FIR with the P.S. complaining of cruelty under Section 498 A, IPC against the petitioners could, in the facts and circumstances of the case, falsify her present case of criminal breach of trust. Whether or not the present complaint regarding the commission of offence of criminal breach of trust is false will be decided only after the evidence is led during the trial and the mere omission to level the accusation for such an offence in the FIR lodged on 19.5.1996 can be of no moment.
13. Fifthly, it was contended that the present prosecution involving the question of determination of ownership of properties which are said to have been presented at the time of the marriage between the respondent opposite party No. 1 and the petitioner No. 1 is not maintainable. Reference was made to an unreported case of Partha Pratim Pal & Ors. v. State of West Bengal & Anr., in Cr. Rev. No. 2641 of 1995 decided by a learned Single Judge of this Court (S.K. Tiwari, J.) on 23.8.1996 and it was submitted that the said decision virtually gave a ruling to the effect that the determination of the properties actually giving at the time of marriage by the bride’s father falls within the jurisdiction of a Matrimonial Court under Section 27 of the Hindu Marriage Act or of an ordinary Civil Court but not of a Criminal Court and that the said ruling was in effect affirmed by the Supreme Court in Cr. Appeal No. 744 of 1997 arising out of SLP (Cr) No. 12 of 1997 taken against the said decision. In view of the said decision, it was submitted on behalf of the petitioners that the question whether the properties were the exclusive properties of the opposite party No. 1 or the joint properties of the petitioner No. 1 and opposite party No. 1 cannot be determined by this Court and as such, the instant prosecution is not maintainable.
14. At the instance of the petitioners, the entire record of the aforesaid unreported case in Criminal Revision 2641 of 1995 was called for and placed before this Court. A xerox certified copy of the Supreme Court’s judgment has also been filed on behalf of the petitioners. On perusal of the record, it would appear that the said revision case arose out of an application filed under Section 482, Cr.P.C. by the accused person of a criminal proceeding for quashing of that proceeding which was started on the basis of a complaint forwarded by the SDJM, Durgapur under Section 156(3), Cr.P.C. and which eventually culminated in a charge sheet submitted by the police, after investigation, for the offences under Sections 406,498A and 500 of IPC. From the judgment it would appear that the said proceeding was sought to be quashed on three grounds namely that none of the said offences was committed within the territorial jurisdiction of that Court, that no prima facie case under Section 406 was made out and that the police could not investigate the offence under Section 500, IPC nor the Magistrate would be competent to take cognizance of the offence under Section 500 on the basis of a police report. The learned Single Judge allowed the revisional application and quashed the entire proceeding. So far as it related to the offence punishable under Section 498A, IPC, it was quashed on the ground of want of jurisdiction and the learned Judge gave the liberty to the prosecution to initiate prosecution under Section 498A, IPC in a Court of competent jurisdiction. So far as it related to the offence under Section 500, IPC, it was quashed on the findings that the complaint did not disclose the actual defamatory statements, that the police could neither investigate nor file charge sheet for that offence and that Magistrate could also not take cognizance of such an offence on the basis of a police report. But so far as the offence under Section 406, IPC is concerned, the learned Judge quashed the proceeding as he was the view that no case under Section 406, IPC was made out on the face of the FIR so as to justify taking of cognizance by the Magistrate
15. From the copy of the Supreme Court’s order filed before this Court, it would appear that the Supreme Court set aside the order of the learned Single Judge so far as it related to the offence under Section 498A, IPC and allowed the appeal partly with the observation that the charges under Sections 500 and 406, IPC could be treated to have been rightly quashed by the learned Single Judge. This observation of the Supreme Court cannot be construed as approving of every observation made by the learned Single Judge while dealing with the question of quashing of the charge under Section 406, IPC. The Supreme Court’s judgment could at best be interpreted as upholding in view of the learned Single Judge that the charge under Section 406, IPC deserved to be quashed.
16. The learned Single Judge dealt with the relevant charge under Section 406 at paragraph 13 of his judgment thus :
“Perusal of the petition of complainant only discloses that jointly operated locker was taken on hire from Punjab National Bank and complainant’s stridhan property was kept therein. If the petitioner has shifted the ornaments from the said locker to another safer place, it does not mean that petitioner No. 1 has committed criminal breach of trust. No where it is said that she had demanded her ornaments back and the accused persons had refused to return the same. The properties actually given by the complainant’s father at the time of marriage has not to be determined by a Criminal Court but by a Matrimonial Court (under Section 27 of the Hindu Marriage Act) or a Civil Court. The charge under Section 406, IPC is, therefore, not made out on the face of FIR, and the learned Magistrate was not justified in taking cognizance of the offence under Section 406, IPC.”
17. One of the grounds, on which the learned Single Judge’s view that no offence under Section 406 is prima facie made out is evidently based, is that the property is respect of which the criminal breach of trust is alleged to have been committed was shifted to a safer place. The other important ground that influenced the learned Judge in taking such a view is that the complainant did nowhere allege that she had demanded the properties concerned or that there was refusal by the accused persons to return the same. If the person entrusted with some ornaments shifts them to a safer place and if there is neither any demand by the owner for return of those ornaments from the person entrusted nor any refusal to return the same by the person entrusted the question of commission of an offence of criminal breach of trust by such person in respect of those ornaments could never arise and the said facts would sufficient to demolish a case of criminal breach of trust. But the facts and circumstances of the present case are totally different. Here, there is no question of shifting of the properties to a safer place and there is allegation of demand and refusal.
18. There is yet another ground and could be said to have weighed with the learned Judge in arriving at the conclusion that the charge under Section 406, IPC was not made out on the face of FIR. It seems that the learned Judge was of the view that as the properties were allegedly given by the complainant wife’s father at the time of her marriage, they could be determined either by a Matrimonial Court in a proceeding under Section 27 of the Hindu Marriage Act or by an ordinary Civil Court and not by a Criminal Court.
19. If that be the law, it would virtually mean that a stridhan property could never constitute the subject matter of an offence of criminal breach of trust and that when a wife approaches a Criminal Court with a complaint of criminal breach of trust against her husband and other in-laws in respect of some property claiming that property to be her stridhan property, the Criminal Court would have no jurisdiction even to incidentally determine the question whether or not that property was her stridhan property for the purpose of deciding the other question as to whether or not there has been entrustment of that property with her husband and/or other in-laws and that the wife would be left with the only remedy to take recourse to a proceeding before a Matrimonial Court under Section 27 of the Hindu Marriage Act or to a suit before an ordinary Civil Court. I am afraid, this could never be the law nor could the Supreme Court be said to have laid down such a proposition of law by affirming the judgment passed by S.K. Tiwari, J. in Cr. Rev. No. 2641 of 1995 insofar as it related to the prosecution for the offence punishable under Section 406, IPC.
20. Incidentally, I may again refer to Rashmi Kumar’s case (supra) wherein the Supreme Court held that Section 27 of the Hindu Marriage Act merely provides another remedy of suit to recover from the husband or the persons to whom the stridhan property was entrusted. That, in my view, cannot certainly oust the jurisdiction of the Criminal Court to determine whether the properties were stridhan properties or for that matter, the exclusive properties of the wife and whether there was entrustment in favour of the husband or other in-laws in relation to those properties or whether the husband and other in-laws has committed the criminal breach of trust.
21. Thus, I do not find any merit whatsoever in the contention that has been raised on behalf of the petitioners on the point.
22. Finally, it was contended on the behalf of the petitioners that the learned Magistrate acted illegally by issuing search warrant with a direction for delivery of the property to the zimma of the opposite party No. 1.
23. Undisputedly, if any property is recovered in execution of the search warrant that has been issued by the learned Magistrate, it would be seized and produced before the Court during the trial and pending the conclusion of the trial, the Court would have power under Section 451, Cr.P.C. to make such order, as it thinks fit to make proper custody of such property. The petitioner’s grievance is that the learned Magistrate should not have given the direction for making over the custody of the properties, in the event of their being recovered in execution of the search warrant, in the zimma of the complainant alone, without giving any opportunity to the petitioners of being heard. Such a grievance cannot be considered to be unjustified altogether. The question is to in whose custody the properties concerned would remain pending the conclusion of the trial should be decided only after the properties are recovered, seized and produced before the Court. The properties having not yet been produced before the Court, Section 451, of the Cr.P.C. cannot be pressed into service and on behalf of the complainant opposite party, it was submitted that she would have no objection in case the order relating to interim custody be made only upon production of the properties before the Court and also upon hearing the accused petitioners.
24. For the reasons stated above, I do not find any case for quashing the criminal proceeding. The impugned order dated 19.0.1996 is required to be modified only to the extent that the search warrant is to be issued in terms of that order without the direction upon the O.C. to give the seized articles in zimma of the complainant after executing the search warrant. The revisional application is thus disposed of subject to the modifications indicated above. The learned Magistrate shall decide the question of interim custody of the articles that may be seized in execution of the search warrant after giving a hearing to the accused-petitioners.
Crl. Revision disposed of.
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