Smt. Abida & Others vs State Of U.P. & Another
2017 Latest Caselaw 4173 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 53
 

 
Case :- CRIMINAL REVISION No. - 1058 of 2012
 

 
Revisionist :- Smt. Abida & Others
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- J.P.S. Chauhan
 
Counsel for Opposite Party :- Govt. Advocate,Kamesh Kumar Arya
 

 
Hon'ble Harsh Kumar,J.

The revision has been filed against the summoning order dated 17.3.2012 passed by ACJM-III Bijor in criminal complaint case no. 212 of 2012 (Smt. Shaista Vs. Rafiuddin), under Section 323, 504,506,406 IPC & 6 of D.P. Act, P.S. Kotwali Shahar, District Bijnor.

Case called out. Learned counsel for the opposite party is not present.

Heard learned counsel for the revisionist, learned AGA for the State respondent.

Learned counsel for the revisionists contended that opposite party no. 2 has filed a false complaint against the revisionists as well as against her husband,  in which the revisionists have been summoned for the offences under Section 323, 504,506,406 IPC & 6 of D.P. Act, without considering the fact that the revisionist no. 1 is  married nanad, revisionist no. 3 is unmarried nanad and revisionist no. 2 is daughter of nanad of the complainant; that there are no specific allegations against the revisionist nos. 1,2 and 3 and they were ever entrusted with the  property or  articles allegedly given to complainant at the time of marriage and are not alleged to have taken them away or misappropriated any of them; that in view of the impugned summoning order, the case is in progress against husband of opposite party no. 2; that no specific allegations have been made against the revisionist nos. 4 and 5, the father-in-law and mother-in-law and they  also have not committed any offence ; that there is no injury report on record; that the Apex Court in the case of Geeta Mehrotra and another Vs. State of Uttar Pradesh reported in 2012 (10) SCC 741 has observed that there is tendency of falsely implicating the unmarried and married nanads and other distant relatives in matrimonial disputes; that  the learned Magistrate has failed to consider that revisionist no. 1 who is married nanad of complainant/ opposite party no. 2 may not have participated in the alleged incident of marpeet and there is no prima facie evidence at least against the revisionist nos. 1,2 and 3; that no offence under Section 406 is made out against the revisionist nos. 1,2 and 3 and even no offence under Section 323, 504,506 and Section 6 of D.P. Act is made out against them; that the impugned summoning order has been passed in cyclostyled manner without due application of mind and is liable to be set aside.

Per contra, learned AGA supported the impugned order and contended that in the complaint, allegations have been made against all the six accused persons including husband of opposite party no. 2; that demand of dowry was made by all the accused persons jointly and all are alleged to have committed marpeet with opposite party no. 2 and hurled abuses and threats on her.

Upon hearing learned counsel for the parties and perusal of record, I find that according to section 405 IPC, the offence of criminal breach of trust is committed when a person who is entrusted in any manner with the  property or with any dominion over it, dishonestly misappropriates it or converts it to  his own use, or dishonestly uses it, or disposes if of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or wilfully suffers any other person so to do. Thus in the commission of the offence of criminal breach of trust, two distinct parts are involved. The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created.

The perusal of copy of complainant at Annexure-1 and statements under Section 200 and 202 Cr.P.C. at Annexure- 2 show that revisionist nos. 1,2 and 3 are respectively married nanad, daughter of nanad and unmarried nanad of the complainant/opposite party no. 2 while revisionist nos. 4 and 5 are her mother- in- law and father-in-law. In the complaint or statements of complainant and witnesses under Section 200 and 202 Cr.P.C., there is no  whisper that the articles and ornaments mentioned at the foot of the compliant were ever entrusted to revisionist nos. 1 to 3 or were dishonestly used or misappropriated by any of them. The above items normally would have been given to husband and his parents and at the most may be entrusted to them and if at all  could have been used or misappropriated by them. There is no specific allegations of demand of dowry by revisionist nos. 1 to 3 and general allegations have bee made. Similarly no specific allegations of abusing or committing marpeet have been made against revisionist nos. 1 to 3 who in ordinary course may not be beneficiary of the allegedly demanded dowry. At the most mother-in-law and father-in-law could be the persons to make alleged demand of dowry and committing marpeet or abusing the complainant.

In the circumstances, it is clear that married and unmarried nanads as well as daughter of nanad have been falsely implicated under tendency to harass all the relatives and family members of the husband. The learned Magistrate has failed to consider that revisionist no. 1 is married nanad who is supposed to be living separately at her matrimonial house alongwith her minor daughter, the revisionist no. 2, and revisionist 3 is also unmarried nanad whose participation in the alleged offence may be very remote and doubtful. As far as revisionist nos. 4 and 5 are concerned, they are mother-in-law and father-in-law of opposite party no. 2 and the entrustment of the articles mentioned in complaint, with them may not be disputed and their participation in the offence may not be ruled out at this stage. The learned Magistrate has failed to consider that revisionist nos. 1 to 3 may not have been entrusted with the property in question. It has failed by considering that there was no prima facie evidence of misappropriation of any such property by any of them and in absence of any specific allegations against them, there was also no prima facie evidence of offences under Section 323, 504,506 IPC and Section 6 of D.P. Act against them.

The learned lower court ought to have considered as to whether there is prima facie sufficient ground for issuing process against all the opposite parties mentioned in the complaint or not. It is possible that in view of material on record, there may be sufficient ground for proceeding against all or some of them. The Magistrate on finding sufficient ground may also take cognizance of different offences against some of the opposite parties and is not bound to summon all of them, despite there is sufficient ground to proceed only against some.

In view of the discussions made above, I find that the impugned order is wrong and incorrect and is liable to be set aside as against revisionist nos. 1 to 3 and revision is liable to be allowed partly.

The revision is partly allowed. The impugned summoning order is set aside only as against revisionist nos. 1 to 3 and is affirmed as against revisionist nos. 4 and 5.

Interim orders, if any, stand vacated. 

Let a copy of order be sent to court below for expeditious disposal of complaint case in accordance with law.

Order Date :- 11.9.2017

Sanjeev