Chattisgarh High Court
Nand Kishore Pandey vs State Of Chhattisgarh on 7 June, 2021
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order reserved on:16.3.2021
Order delivered on:07.06.2021
Cr.M.P.No.1075 of 2019
1. Nand Kishore Pandey S/o Shri P.N. Pandey aged about 59
years, OccupationGovt.Servant
2. Sumit Pandey S/o Nand Kishore Pandey, aged about 30
years, Occupation - Businessman
3. Nitin Pandey S/o Nand Kishore Pandey, aged about 30
years, Occupation - Govt.Servant
4. Seema Pandey W/o Nand Kishore Pandey, aged about 54
years, Occupation - Homemaker
All above Resident of - H.No.826, Shobhapur Colony,
Near VFJ Factory, Jabalpur (M.P.)
Petitioners
Versus
1. State of Chhattisgarh through Police Station Mahila
Thana, Distt.Raipur (Chhattisgarh)
Respondent
2. Smt.Mansi Choubey W/o Rahul Pandey aged 29 years, R/o
Kashi Apartment, Opposite Gitanjali Nagar, Raipur
(Chhattisgarh)
Complainant
For Petitioners : Mr.Sankalp Kochar and Mr.Harsh
Wardhan, Advocates
For Respondent No.1: Mr.Sunil Otwani, Additional Advocate
General with Mr.Ravi Bhagat, Deputy
Government Advocate
For Respondent NO.2: Mr.Kishore Bhaduri, Mr.Ashok Kumar
Shukla and Mr.Pankaj Singh, Advocates
Hon'ble Shri Justice Sanjay K. Agrawal
C.A.V. Order
1. This case was reserved for orders on 16.3.2021, but
before order could be delivered, lockdown was clamped
down by the District Collector w.e.f. 14.4.2021,
consequently, this Court was also remain closed and
during the continuance of lockdown followed by closure
of this Court, the summer vacation stepped in w.e.f.
5.6.2021, therefore, order is being pronounced today
on reopening of this Court after summer vacation.
2. The petitioners herein, who are inlaws of respondent
No.2, call in question legality, validity and
correctness of the FIR and chargesheet submitted
against them by the jurisdictional police/respondent
No.1 for commission of offence under Sections 498A
read with Section 34, 406, 420 and 506 of the Indian
Penal Code (hereinafter called as 'IPC') and Section 4
of the Dowry Prohibition Act, 1961 (hereinafter called
as 'the Act of 1961') in this petition filed under
Section 482 of the CrPC.
3. Case of the prosecution, in brief, is that marriage of
respondent No.2 was solemnized with son of petitioners
No.1 and 4 Mr.Rahul Pandey on 8.2.2015 and thereafter
out of their wedlock they were blessed with a girl
child namely Kuhu @ Anvi Pandey on 21.10.2016 and it
is the case of the prosecution that thereafter the
petitioners as well as husband of respondent No.2
herein namely Mr.Rahul Pandey (he is not petitioner
herein) started treating her with cruelty [which
compelled respondent No.2 herein to live separately
from Rahul Pandey w.e.f. 27.7.2018] by demanding ₹ 1
crore or house at Jabalpur and thereafter on 7.4.2018,
written complaint was submitted by respondent No.2 to
Mahila Thana, Raipur, which was ultimately said to
have been registered on 12.10.2018 and in between
conciliation proceeding was undertaken for resolution
of dispute between the parties and thereafter wheels
of investigation started running and Crime No.41/2018
for the abovestated offences was registered against
the petitioners and husband of respondent No.2
Mr.Rahul Pandey as statedabove and accordingly, they
have been chargesheeted for the aforesaid offences.
In the meanwhile, the present petitioners except
husband Rahul Pandey have filed this petition seeking
quashment of offences registered against them.
4. In this petition filed under Section 482 of the CrPC,
it is mainly pleaded that the petitioners are father
inlaw, brothersinlaw and motherinlaw of
respondent No.2 herein who have no direct connection
with offence in question qua written complaint filed
by respondent No.2 and her statement under Section 161
of the CrPC as main allegation has been made against
husband Rahul Pandey and entire contents of the
chargesheet would show that taking the contents of
the FIR and consequent proceeding and chargesheet, no
offences under Section 498A read with Section 34 of
the IPC and Section 4 of the Dowry Prohibition Act are
made out against them as there is only specific
allegation against husband Rahul Pandey, there is
omnibus and general allegations against the
petitioners and ingredients of offence under Section
498A/34 of the IPC are absolutely missing. It has
been further stated that it is the case of false
allegation against the petitioners as husband of
respondent No.2 filed an application under Section 9
of the Hindu Marriage Act, 1955 (hereinafter called as
'the Act of 1955') for restitution of conjugal rights
on 25.4.2018, in which respondent No.2 appeared on
26.6.2018 and thereafter written complaint was pressed
into service on 12.10.2018 as FIR has been registered
as a counterblast by the complainant to come out from
the proceeding under Section 9 of the Act of 1955, as
such, it is a case of counterblast at the instance of
respondent No.2. It has also been stated that husband
of respondent No.2 Mr.Rahul Pandey and petitioners
No.1 and 3 were never posted at one place together and
they never lived together as fatherinlaw (petitioner
No.1) and brotherinlaw (petitioner No.3) are also
working in Police Department and they are posted in
different places and their posting orders have been
filed to demonstrate that allegations are false and
those documents are already on record and are of
sterling quality and therefore, those documents
deserve to be relied upon to hold that allegations are
false and baseless. It has also been pleaded that
ingredients of offence under Section 406 of the IPC
are missing. Merely because the police has issued
notice under Section 91 of the CrPC which is said to
be refused by the petitioners, no offence under
Section 406 of the IPC is made out as there is no
entrustment and demand for return of Stridhan and it
was not shown to be converted for his own use. It has
also been pleaded that mere alleged refusal that too
at the instance of the petitioners, no offence under
Section 406 of the IPC is made out. Similarly, it has
also been pleaded that no offence under Section 420 of
the IPC are made out and ingredients of offence under
Section 4 of the Act of 1961 are also missing as
Mahindra XUV 500 car said to have been gifted by
father of respondent No.2 was sold by the petitioners
and Rahul Pandey and they have utilized the money for
their own purpose, as such, prayer has been made to
quash the entire proceedings registered for the
aforesaid offences to secure the ends of justice.
5. Return has been filed by the private respondent as
well as by official respondent stating interalia that
scope of interference under Section 482 of the CrPC is
extremely limited and correctness and veracity of the
prosecution case cannot be examined in proceeding
filed under Section 482 CrPC particularly when
primafacie offences under Sections 498A/34, 406,
506, 420 of the IPC and Section 4 of the Act of 1961
are made out against the petitioners. It has also been
stated that facts pleaded and grounds raised herein,
are all subjectmatter of trial and charges have to be
proved by the prosecution during the course of trial
and at this stage, it cannot be held that no prima
facie offence is made out for trial, as such, the
petition under Section 482 of the CrPC deserves to be
dismissed.
6. Mr.Sankalp Kochar, learned counsel appearing for the
petitioners, would submit as under:
(i) That, the petitioners are inlaws of
respondent No.2 herein except husband and in
written complaint filed by respondent No.2, there
is no direct allegation or connection of the
present petitioners in the aforesaid offences
except general and omnibus allegations having no
legs to stand.
(ii) That, taking contents of chargesheet and
document appended along with chargesheet as it
is, aforesaid offences are not made out against
the petitioners as direct allegation is against
husband for demand of dowry of ₹ 1 crore / house
of ₹ 1 crore at Jabalpur made by the complainant,
as such, in absence of specific allegation and in
absence of ingredient of demand of dowry and
cruelty, prosecution against the petitioners
deserves to be quashed. To bolster his
submission, he would rely upon the judgments of
the Supreme Court in the matters of Geeta
Mehrotra and another v. State of Uttar Pradesh
and another1, Preeti Gupta and another v. State of
Jharkhand and another2, Swapnil v. State of Madhya
Pradesh3 and Rashmi Chopra v. State of Uttar
Pradesh and Another4 (Para24).
(iii) That, it is a case of false implication /
counterblast pursuant to the proceeding
initiated by son of petitioner No.1 under Section
9 of the Act of 1955 registered on 25.4.2018
before the Family Court, Jabalpur in which
respondent No.2 appeared on 26.6.2018 and
thereafter written complaint was made on
1 (2012) 10 SCC 741
2 (2010) 7 SCC 667
3 (2014) 13 SCC 567
4 2019 SCC OnLine SC 620
12.10.2018, as such, it is nothing but sheer
abuse of process of the Court. He would rely upon
the judgments of the Madhya Pradesh High Court in
the matters of Rakesh Singh and another v. State
of M.P. and others5, Harinarayan S/o Late Shri
Balwant Parmar & Ors. v. Smt.Shewta Parmar 6, Prem
Narayan and others v. Sushila Devi7 and Ritesh
Chopda and others v. State of M.P. and Another8.
(iv) That, prima facie no offence under Section
406 of the IPC is made out as there is no
entrustment of property to the present
petitioners and even there is no demand for
alleged stridhan by respondent No.2 herein and
there is no allegation that alleged stridhan of
respondent No.2 has been used by the petitioners
for their own use and alleged notice issued by
respondent No.1 under Section 91 of the CrPC and
alleged refusal to appear in the said proceeding
would not constitute offence under Section 406 of
the IPC. The complainant/respondent No.2 has
never demanded alleged stridhan from the
petitioners and therefore, in the light of
judgments of the Supreme Court in the matter of
5 2013 SCC OnLine MP 3187
6 2013 SCC OnLine MP 5912
7 2016 SCC OnLine MP 8791
8 2019 SCC OnLine MP 619
Sardar Singh v. State of Haryana9 and
S.W.Palanitkar and others v. State of Bihar and
another10, no offence under Section 406 of the IPC
is made out.
(v) That, even otherwise there is no intention of
cheating from its inception, as such, no offences
under Section 420 of the IPC and Section 4 of the
Act of 1961 are made out. He would further submit
that at the relevant point of time, petitioner
No.1 (fatherinlaw) and petitioner No.3
(brotherinlaw) were never posted with his son
Rahul Pandey, therefore, allegation under Section
498A/34 of the IPC is an afterthought to
implicate the petitioners. Transfer and posting
orders of the petitioners as filed are
governmental records and authenticity of those
documents have not been disputed and therefore,
they can be relied upon to hold that charges are
baseless and deserve to be quashed. Finally, he
would rely upon the judgments of the Supreme
Court in the matters of Rajiv Thapar and others
v. Madan Lal Kapoor11 and Prashant Bharti v. State
(NCT of Delhi)12, as such, the petition under
9 (1977) 1 SCC 463
10 (2002) 1 SCC 241
11 (2013) 3 SCC 330
12 (2013) 9 SCC 293
Section 482 of the CrPC deserves to be allowed
and prosecution against the petitioners deserves
to be quashed.
7. On the other hand, Mr.Sunil Otwani, learned Additional
Advocate General for respondent No.1/State, would
submit that after due investigation the petitioners
have been chargesheeted for the aforesaid offences
and primafacie material collected are sufficient to
put the petitioners at trial and they are standing
trial also, but taking into consideration the material
available on record, it cannot be held that no prima
facie case against the petitioners for standing trial
is made out. He would further submit that jurisdiction
of this Court under Section 482 of the CrPC is
extremely limited as FIR and chargesheet cannot be
quashed particularly when there is sufficient evidence
available on record to put the accused persons to
trial. He would rely upon the judgment of the Supreme
Court in the matter of Taramani Parakh v. State of
Madhya Pradesh and others13 to buttress his submission
that allegation of cruelty is question of fact to be
established during trial, as such, the FIR and charge
sheet deserve to be quashed.
8. Mr.Kishore Bhaduri, learned counsel for respondent
13 (2015) 11 SCC 260
No.2/complainant, would submit that after due
investigation, the jurisdictional police has submitted
chargesheet against the petitioners and one co
accused Rahul Pandey in which there are serious
allegations against the petitioners not only for
treating respondent No.2 with cruelty, but they also
demanded dowry to the extent of ₹ 1 crore or house of
₹ 1 crore at Jabalpur and Mahindra XUV 500 gifted to
her by her father was sold by Rahul Pandey in
collusion with the petitioners and they have
misappropriated the amount instead of giving the sale
proceeds to respondent No.2, which clearly attracts
the offence under Sections 406 and 420 of the IPC. He
would further submit that despite notice under Section
91 of the CrPC issued by respondent No.2 for return of
stridhan, the petitioners refused to accept notice
issued by respondent No.2 and even dared not to return
stridhan belonging to respondent No.2, as such, it is
clear case where offence under Sections 420 and 406 of
the IPC are made out. He would rely upon the judgments
of the Supreme Court in the matters of Pratibha Rani
v. Suraj Kumar14, Mohd. Allauddin Khan v. State of
Bihar15, M/s IOCL v. M/s NEPC India Ltd16, J.P. Sharma
14 (1985) 2 SCC 370
15 (2019) 6 SCC 107
16 AIR 2006 SC 2780
v. Vinod Kumar Jain17, Renu Kumari v. Sanjay Kumar18
and State of Orissa v. Saroj Kumar Sahoo19 to buttress
his submission. He would further submit that all
submissions raised on behalf of the petitioners relate
to question of fact, that can be considered during the
course of trial and that cannot be considered at this
stage and that too in proceeding under Section 482
CrPC as all ingredients of the aforesaid offences are
available to put the petitioners to trial, as such, it
is the case where the petition deserves to be
dismissed relegating them to join trial as for this or
that reason they have not joined trial and at this
stage, despite the fact that chargesheet has been
filed, the trial is not progressed for last two years,
as such, it is not a fit case where jurisdiction under
Section 482 of the CrPC can be exercised, as such, the
petition under Section 482 of the CrPC deserves to be
dismissed.
9. I have heard learned counsel for the parties and
considered their rival submissions made hereinabove
and also went through the records with utmost
circumspection.
10. At the outset, it would be appropriate to
consider the scope of interference in chargesheet
17 (1986) 3 SCC 67
18 (2008) 12 SCC 346
19 (2005) 13 SCC 540
filed by the police against accused in extraordinary
jurisdiction under Section 482 of the CrPC.
11. In the matter of Pepsi Foods Ltd. and another v.
Special Judicial Magistrate and others20, the Supreme
Court has held that the accused can approach the High
Court either under Section 482 of the CrPC or under
Article 227 of the Constitution of India to have the
proceeding quashed against him when the complaint does
not make out any case against him.
12. The Supreme Court in the mater of State of
Haryana and others v. Bhajan Lal and others21 laid
down the principles of law relating to the exercise of
extraordinary power under Article 226 of the
Constitution of India to quash the first information
report and it has been held that such power can be
exercised either to prevent abuse of the process of
any court or otherwise to secure the ends of justice.
In paragraph 102 of the report, their Lordships laid
down the broad principles where such power under
Article 226 of the Constitution/Section 482 of the
CrPC should be exercised, which are as under:
"102. In the backdrop of the interpretation
of the various relevant provisions of the Code
under Chapter XIV and of the principles of law
enunciated by this Court in a series of
20(1998) 5 SCC 749
21 1992 Supp (1) SCC 335
decisions relating to the exercise of the
extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code
which we have extracted and reproduced above,
we give the following categories of cases by
way of illustration wherein such power could be
exercised either to prevent abuse of the
process of any court or otherwise to secure the
ends of justice, though it may not be possible
to lay down any precise, clearly defined and
sufficiently channelised and inflexible
guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases
wherein such power should be exercised.
(1)Where the allegations made in the first
information report or the complaint, even
if they are taken at their face value and
accepted in their entirety do not prima
facie constitute any offence or make out a
case against the accused.
(2)Where the allegations in the first
information report and other materials, if
any, accompanying the FIR do not disclose a
cognizable offence, justifying an
investigation by police officers under
Section 156(1) of the Code except under an
order of a Magistrate within the purview of
Section 155(2) of the Code.
(3)Where the uncontroverted allegations
made in the FIR or complaint and the
evidence collected in support of the same
do not disclose the commission of any
offence and make out a case against the
accused.
(4)Where, the allegations in the FIR do not
constitute a cognizable offence but
constitute only a noncognizable offence,
no investigation is permitted by a police
officer without an order of a Magistrate as
contemplated under Section 155(2) of the
Code.
(5)Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion
that there is sufficient ground for
proceeding against the accused.
(6)Where there is an express legal bar
engrafted in any of the provisions of the
Code or the concerned Act (under which a
criminal proceeding is instituted) to the
institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned Act, providing efficacious
redress for the grievance of the aggrieved
party.
(7)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.
103. We also give a note of caution to the
effect that the power of quashing a criminal
proceeding should be exercised very sparingly
and with circumspection and that too in the
rarest of rare cases; that the court will not
be justified in embarking upon an enquiry as to
the reliability or genuineness or otherwise of
the allegations made in the FIR or the
complaint and that the extraordinary or
inherent powers do not confer an arbitrary
jurisdiction on the court to act according to
its whim or caprice."
13. The principle of law laid down in Bhajan Lal's
case (supra) has been followed recently by the Supreme
Court in the matters of Google India Private Limited
v. Visaka Industries22, Ahmad Ali Quraishi and another
v. State of Uttar Pradesh and another 23 and Dr
Dhruvaram Murlidhar Sonar v. State of Maharashtra and
others24. The Supreme Court in Google India Private
Limited (supra), explained the scope of dictum of
Bhajan Lal's case (supra) that the power of quashing a
criminal proceeding be exercised very sparingly and
with circumspection and "that too in the rarest of
rare cases" as indicated in paragraph 103 therein of
the report.
14. Having noticed the scope of interference by this
Court in the petition relating to quashment of
FIR/chargesheet, reverting to the facts of the
present case, it is quite vivid that in the impugned
chargesheet, four petitioners have been charged for
offences under Sections 498A read with Section 34,
406, 420 and 506 of the IPC and Section 4 of the Act
of 1961.
15. Chapter XXA of the IPC deals with offence of
cruelty by husband or relatives of husband. Section
498A of the IPC defines the offence of cruelty as
under:
"498A. Husband or relative of husband of a
22(2020) 4 SCC 162
23(2020) 13 SCC 435
24(2019) 18 SCC 191
woman subjecting her to cruelty.--Whoever, being
the husband or the relative of the husband of a
woman, subjects such woman to cruelty shall be
punished with imprisonment for a term which may
extend to three years and shall also be liable
to fine.
Explanation.--For the purpose of this section,
"cruelty" means--
(a) any wilful conduct which is of such a
nature as is likely to drive the woman to
commit suicide or to cause grave injury or
danger to life, limb or health (whether mental
or physical) of the woman; or
(b) harassment of the woman where such
harassment is with a view to coercing her or
any person related to her to meet any unlawful
demand for any property or valuable security or
is on account of failure by her or any person
related to her to meet such demand."
16. A careful perusal of the aforesaid provision
would show that in order to establish offence under
Section 498A of the IPC, the prosecution must
establish,
(i) That, woman must be married;
(ii) She has been subjected to cruelty or
harassment and
(iii) Such cruelty or harassment must have been
shown either by husband of the woman or by relative
of her husband.
The word 'relative' has not been defined in the IPC
or in this Chapter, but in order to be covered under
Section 498A of the IPC, one has to be relative of
the husband by blood, marriage or adoption. The word
'relative' in Section 498A of the IPC would be
limited only to blood relation and relations by
marriage (See U. Suvetha v. State by Inspector of
Police and another25 and also in Vijeta Gajra v. State
of NCT of Delhi26).
17. The word 'cruelty' within the meaning of Section
498A of the IPC has been explained in Explanation
appended to Section 498A of the IPC. It consists of
two clauses namely clause (a) and clause (b). To
attract Section 498A of the IPC, it must be
established that cruelty or harassment to the wife to
coerce her or cause bodily injury to herself or to
commit suicide or the harassment was to compel her to
fulfill illegal demand for dowry. It is not every type
of harassment or cruelty that would attract Section
498A of the IPC. Explanation (b) to Section 498A of
the IPC contemplates harassment of woman to coerce or
any relation of her to meet any unlawful demand for
any property or valuable security. The complainant if
wants to come within the ambit of Explanation (b) to
Section 498A of the IPC, she can succeed if it is
proved that there was an unlawful demand by the
husband or any of his relatives with respect to money
or of some valuable security.
25 (2009) 6 SCC 757
26 (2010) 11 SCC 618
18. The Supreme Court in the matter of Priya Vrat
Singh and others v. Shyam Ji Sahai27 considered the
issue of delay in lodging the complaint as well as
role that has been ascribed to the accused therein and
quashed the complaint holding the delay of two years
in lodging FIR to be fatal and further held that no
role has been ascribed to the petitioner/accused
therein. It was observed as under:
"8. Further it is pointed out that the
allegation of alleged demand for dowry was made
for the first time in December, 1994. In the
complaint filed, the allegation is that the
dowry torture was made some times in 1992. It
has not been explained as to why for more than
two years no action was taken.
9. Further, it appears that in the complaint
petition apart from the husband, the mother of
the husband, the subsequently married wife,
husband's mother's sister, husband's brother in
law and Sunita's father were impleaded as
party. No role has been specifically ascribed
to anybody except the husband and that too of a
dowry demand in February 1993 when the
complaint was filed on 6.12.1994 i.e. nearly
after 22 months. It is to be noted that in
spite of service of notice, none has appeared
on behalf of Respondent No.1."
19. Similarly, in the matter of Sunder Babu and
others v. State of Tamil Nadu28 delay in filing
complaint against accused therein was taken note of by
their Lordships of the Supreme Court holding the case
to be covered by Category Seven of para102
highlighted in Bhajan Lal's case (supra), the
27 (2008) 8 SCC 232
28 (2009) 14 SCC 244
prosecution for offence under Section 498A of the IPC
and Section 4 of the Dowry Prohibition Act was
quashed.
20. Similarly, in the matter of Geeta Mehrotra
(supra), the Supreme Court held that casual reference
to the family member of the husband in FIR as co
accused particularly when there is no specific
allegation and complaint did not disclose their active
involvement. It was held that cognizance of matter
against them for offence under Sections 498A, 323,
504, 506 and 304B of the IPC would not be justified
as cognizance would result in abuse of judicial
process.
21. In the matter of K. Subba Rao and others v. State
of Telangana represented by its Secretary, Department
of Home and others29 their Lordships of the Supreme
Court delineated the duty of the criminal Courts while
proceeding against relatives of victim's husband and
held that the Court should be careful in proceeding
against distant relatives in crime pertaining to
matrimonial disputes and dowry deaths and further held
that relatives of husband should not be roped in on
the basis of omnibus allegations, unless specific
instances of their involvement in offences are made
29 (2018) 14 SCC 452
out.
22. Recently, in the matter of Rashmi Chopra (supra)
it has been held by their Lordships of the Supreme
Court relying upon the principle of law laid down in
Bhajan Lal's case (supra) that criminal proceedings
can be allowed to proceed only when a prima facie
offence is disclosed and further held that judicial
process is a solemn proceeding which cannot be allowed
to be converted into an instrument of oppression or
harassment and the High Court should not hesitate in
exercising the jurisdiction to quash the proceedings
if the proceedings deserve to be quashed in line of
parameters laid down by the Supreme Court in Bhajan
Lal's case (supra) and further held that in absence of
specific allegation regarding anyone of the accused
except common and general allegations against
everyone, no offence under Section 498A IPC is made
out and quashed the charges for offence under Section
498A of the IPC being covered by category seven as
enumerated in Bhajan Lal's case (supra) by holding as
under:
"24. Coming back to the allegations in the
complaint pertaining to Section 498A and
Section 3/4 of D.P. Act. A perusal of the
complaint indicates that the allegations
against the appellants for offence under
Section 498A and Section 3/4 of D.P. Act are
general and sweeping. No specific incident
dates or details of any incident has been
mentioned in the complaint. The complaint
having been filed after proceeding for divorce
was initiated by Nayan Chopra in State of
Michigan, where Vanshika participated and
divorce was ultimately granted. A few months
after filing of the divorce petition, the
complaint has been filed in the Court of
C.J.M., Gautam Budh Nagar with the allegations
as noticed above. The sequence of the events
and facts and circumstances of the case leads
us to conclude that the complaint under Section
498A and Section 3/4 of D.P. Act have been
filed as counter blast to divorce petition
proceeding in State of Michigan by Nayan
Chopra.
25. There being no specific allegation
regarding any one of the applicants except
common general allegation against everyone i.e.
"they started harassing the daughter of the
applicant demanding additional dowry of one
crore" and the fact that all relatives of the
husband, namely, father, mother, brother,
mother's sister and husband of mother's sister
have been roped in clearly indicate that
application under Section 156(3) Cr.P.C. was
filed with a view to harass the
applicants....."
23. Having noticed the legal position qua quashing
the FIR and chargesheet, the question would be
whether taking the contents of the FIR and charge
sheet as it is, offence under Section 498A/34 of the
IPC is made out against the petitioners who are
relatives of husband of respondent No.2/complainant
being fatherinlaw, brothersinlaw (two) and mother
inlaw ?
24. It is the case of the prosecution that marriage
of respondent No.2 was solemnized with Rahul Pandey,
son of petitioners No.1 and 4 at Jabalpur on 8.2.2015
in accordance with Hindu rites and rituals and out of
their wedlock they were blessed with a baby girl Anvi
Pandey on 11.10.2016 and thereafter on account of
strained relationship between them, respondent No.2
left matrimonial home and started living separately at
Raipur with her father by leaving the matrimonial
house w.e.f. 27.7.2018. It is also the case of the
prosecution that Rahul Pandey (husband of respondent
No.2) purportedly visited Raipur on 23.12.2017 and
demanded dowry of ₹1 crore or house of ₹1 crore at
Jabalpur from father of respondent No.2. A written
complaint was purported to be made by respondent No.2
to Mahila Thana, Raipur (though written complaint
dated 7.4.2018 / 28.4.2018 has been filed along with
chargesheet, but there is no receipt of Police
Station having been received on 7.4.2018). However,
the FIR has been registered on 12.10.2018. It is
stated at the Bar that from 28.4.2018 to 16.7.2018
conciliation proceedings were undertaken for
resolution of dispute between Rahul Pandey and
respondent No.2 and FIR was ultimately registered on
12.10.2018 being Crime No.41/2018 for offence under
Section 498A read with Section 34 of the IPC and also
for offence under Sections 406 and 420 of the IPC. It
is further case of the prosecution that immediately
after marriage of respondent No.2 with Rahul Pandey,
the complainant's husband Rahul Pandey and the
petitioners being inlaws / relatives of her husband
started illtreating the complainant stating that at
the time of marriage she has not brought sufficient
dowry with her. It is also the case of the prosecution
that father of respondent No.2 had gifted a Mahindra
XUV 500 car, a diamond ring, jewellery worth ₹5 lakhs,
clothes and other valuables including furniture and
also incurred ₹11 Lakhs in renting out the hall for
marriage purpose which was to be split between the
petitioners and family of respondent No.2 equally and
the petitioners obtained ₹22 Lakhs from the
complainant's father along with other gifts worth ₹3
Lakhs which was given to the bride/complainant. It is
also alleged that husband Mr.Rahul Pandey later on
sold the gifts and valuables received at the time of
marriage and misappropriated the entire amount. It is
also the case of the prosecution that on 23.12.2017,
Rahul Pandey, husband of the complainant /respondent
No.2 visited the complainant's house and reiterated
his demand of cash of ₹1 crore or house of ₹1 crore at
Jabalpur and on being refused by the complainant's
father, Mr.Rahul Pandey threatened that he shall leave
the complainant and will marry another woman and they
sold off the car, dining set, mattress, etc., received
at the time of marriage and have pocketed the entire
money, as such, the aforesaid offences are made out.
25. Written complaint is said to have been filed by
respondent No.2 / complainant on 7.4.2018 / 28.4.2018
before the Station House Officer, Mahila Thana,
Raipur, which is part of the chargesheet. The date of
the complainant's written complaint made to the
Station House Officer, Mahila Thana, Raipur is
7.4.2018 / 28.4.2018 and FIR has been registered on
12.10.2018 and admittedly, respondent No.2 is residing
separately from her husband Rahul Pandey w.e.f.
27.7.2017 whereas complaint is made on 7.4.2018 /
28.4.2018. In the complaint so made, the complainant
has only made omnibus and general allegations against
the petitioners without being full particulars about
date and place that all the petitioners along with her
husband treated her with cruelty for not bringing
sufficient dowry at the time of marriage. There is no
specific allegation regarding anyone of the
petitioners except common and general allegations
against all the petitioners that immediately after
her marriage, dining set and mattress were sold by her
husband and he pocketed the money and gift received at
the time of marriage was kept by all the petitioners
and she was not given share (amount). For purchase of
house at Jabalpur, ₹1 crore was demanded by
petitioners No.1 and 4 and her father was also called
from Raipur and she was sent back to Raipur along with
her father on 27.7.2017. On 23.12.2017 Rahul Pandey,
her husband visited her house and demanded ₹1 crore or
house of one crore at Jabalpur and threatened her with
dire consequences if ₹ one crore or house of ₹ one
crore is not given to him and as such, action be taken
against her husband and the petitioners for the
aforesaid offences.
26. A careful perusal of the aforesaid complaint
would show that so far as the allegation of selling
and pocketing the money of dining set and mattress is
concerned, that is on Rahul Pandey, husband of the
complainant/respondent No.2 herein. Demand of ₹1 crore
on 21.10.2016 is also on Rahul Pandey, husband of
respondent No.2. Similarly, allegation of physical
assault and attempt to strangulate her in the month of
November, 2016 is also on Rahul Pandey, husband of
respondent No.2. Similarly, the allegation of demand
of ₹1 crore for purchase of house or one crore in cash
on 23.12.2017 at Raipur is also on Rahul Pandey,
husband of respondent No.2. The only allegation
against these petitioners is that immediately after
marriage they taunted respondent No.2 that she has not
brought sufficient dowry in her marriage and secondly
there is also general/omnibus allegation that all
gifts given at the time of marriage were kept by the
petitioners and no share was given to her and she was
not given food in the month of November, 2016 when she
visited to her matrimonial house at Jabalpur along
with her newly born daughter and further that
petitioners No.1 and 4 demanded ₹1 crore for purchase
of house at Jabalpur, as such, main allegation of
selling the articles given at the time of marriage
like dining set, mattress and further allegation of
demanding ₹1 crore for the sake of purchasing house at
Jabalpur on 21.10.2016 & 23.12.2017 and also the
allegation of threatening her with cruelty and
assaulting and allegation of strangulation is also on
Rahul Pandey (her husband) and omnibus and general
allegations without any particulars of involvement
have been made against the petitioners. Even in the
statement made under Section 161 CrPC, there is no
specific allegation against the petitioners except
general and vague allegations stating that the
petitioners have treated her with cruelty and demanded
dowry.
27. Thus, upon the basis of abovestated analysis,
following broad facts are apparent on the face of
record,
(i) That the complainant and her husband Rahul
Pandey admittedly and undisputedly started living
separately w.e.f. 27.7.2017, whereas written
complaint was made by respondent No.2/complainant
to the concerned police station as late as on
7.4.2018 / 28.4.2018 and FIR came to be registered
on 12.10.2018. There is no explanation forthcoming
on record for delay of 8 months in lodging the FIR.
(ii) The allegation of demand of dowry of ₹ 1
crore / house of ₹ 1 crore at Jabalpur on 21.10.2016
is mainly on complainant's husband Rahul Pandey.
Similarly allegation of demand of ₹ 1 crore or house
at Jabalpur on 23.12.2017 at Raipur is also on
Rahul Pandey. Likewise dinning table, mattress etc.
were disposed off by Rahul Pandey and he pocketed
the money as per written complaint.
(iii) The allegation of abusing, assaulting,
intimidating and trying to strangulate the
complainant/respondent No.2 in the month of
November 2016 is on Rahul Pandey (complainant's
husband).
(iv) Mahindra XUV car gifted to the complainant was
sold by Rahul Pandey (complainant's husband) and
pocketed the money with the help of the present
petitioners.
(v) Only general and unspecific allegations have
been made against the present petitioners without
particulars of the said demand alleging that the
complainant has not brought sufficient dowry and
presents/gifts received during / at the time of
marriage were kept by the petitioners without
sharing with the complainant / respondent No.2
herein and she was taunted by the petitioners all
the time.
28. At this stage, it would be appropriate to notice
that the petitioners have also been charged for
offence under Section 4 of the Act of 1961. Section 4
of the Act of 1961 states as under:
"4. Penalty for demanding dowry.--If any person
demands, directly or indirectly, from the
parents or other relatives or guardian of a
bride or bridegroom, as the case may be, any
dowry, he shall be punishable with imprisonment
for a term which shall not be less than six
months, but which may extend to two years and
with fine which may extend to ten thousand
rupees:
Provided that the Court may, for adequate
and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment for
a term of less than six months."
29. The term 'dowry' has been defined under Section 2
of the Act of 1961 which states as under:
"2. Definition of 'dowry'. --In this Act,
"dowry" means any property or valuable security
given or agreed to be given either directly or
indirectly--
(a) by one party to a marriage to the other
party to the marriage; or
(b) by the parent of either party to a marriage
or by any other person, to either party to the
marriage or to any other person,
at or before or any time after the marriage in
connection with the marriage of the said
parties, but does not include] dower or mahr in
the case of persons to whom the Muslim Personal
Law (Shariat) applies.
Explanation II.-- The expression "valuable
security" has the same meaning as in section 30
of the Indian Penal Code (45 of 1860)."
30. The aforesaid provision of Section 2 of the Act
of 1961 clearly defines the word 'dowry' by holding
that any property or valuable security given or agreed
to be given either directly or indirectly at or before
or any time after the marriage or in connection with
the marriage of the said parties.
31. The Supreme Court in the matter of Appasaheb and
another v. State of Maharashtra30 while considering
the definition of 'dowry' under Section 2 of the Dowry
Prohibition Act clearly held that correlation between
the giving or taking of property or valuable security
with the marriage of the parties is essential and
further held that demand for money on account of some
financial stringency or for meeting some urgent
domestic expenses or for purchasing manure cannot be
termed as demand for dowry. It was observed by their
Lordships as under:
"11. In view of the aforesaid definition of the
word "dowry" any property or valuable security
should be given or agreed to be given either
directly or indirectly at or before or any time
after the marriage and in connection with the
marriage of the said parties. Therefore, the
30 (2007) 9 SCC 721
giving or taking of property or valuable
security must have some connection with the
marriage of the parties and a correlation
between the giving or taking of property or
valuable security with the marriage of the
parties is essential. Being a penal provision
it has to be strictly construed. Dowry is a
fairly wellknown social custom or practice in
India. It is well settled principle of
interpretation of Statute that if the Act is
passed with reference to a particular trade,
business or transaction and words are used
which everybody conversant with that trade,
business or transaction knows or understands to
have a particular meaning in it, then the words
are to be construed as having that particular
meaning. (See Union of India v. Garware Nylons
Ltd.31 and Chemical and Fibres of India v.
Union of India32). A demand for money on
account of some financial stringency or for
meeting some urgent domestic expenses of for
purchasing manure cannot be termed as a demand
for dowry as the said word is normally
understood. The evidence adduced by the
prosecution does not, therefore, show that any
demand for "dowry" as defined in Section 2 of
the Dowry Prohibition Act was made by the
appellants as what was allegedly asked for was
some money for meeting domestic expenses and
for purchasing manure. Since an essential
ingredient of Section 304B IPC viz., demand
for dowry is not established, the conviction of
the appellants cannot be sustained."
32. Reverting to the facts of the present case in the
light of aforesaid definition of 'dowry' as considered
by the Supreme Court in the matter of Appasaheb
(supra), it is quite vivid that it is the case of the
prosecution relying upon the complaint made by
respondent No.2 that ₹1 crore was said to have been
demanded by husband of respondent No.2 from father of
31 (1996) 10 SCC 413
32 (1997) 2 SCC 664
respondent No.2 for purchasing house at Jabalpur
twice. It has not been pleaded/stated in the complaint
that it was agreed to be given either directly or
indirectly between the petitioners' family and family
of the complainant/respondent No.2 before or at the
time of marriage of Rahul Pandey and respondent No.2
herein, therefore, taking the contents of the FIR as
it is, primafacie demand of dowry by the petitioners
as defined in Section 2 of the Act of 1961 is not
established as ₹1 crore is said to have demanded by
Mr.Rahul Pandey from father of respondent No.2 herein
that too for purchase of house at Jabalpur, as such,
no offence under Section 4 of the Act of 1961 is made
out particularly against the petitioners herein.
33. On the basis of aforesaid discussion, I am of the
considered opinion that primafacie no offences under
Section 498A and Section 4 of the Act of 1961 are made
out for prosecuting the petitioners for the above
stated offences and the prosecution against them for
the aforesaid offences is covered by Category 1, 3 & 7
of para102 of the judgment rendered by the Supreme
Court in Bhajan Lal's case (supra) and as such, liable
to be quashed.
34. The petitioners have also been charged for
commission of offence under Sections 406 and 420 of
the IPC. It is the case of the prosecution that family
relatives and guests in the marriage presented in cash
₹22 lakhs and also father of respondent No.2 gave ₹3
lakhs as Stridhan to respondent No.2 which has been
obtained by the petitioners and no share was given to
her and similarly, car (Mahindra XUV) presented by
father of respondent No.2 to respondent No.2 was also
sold by coaccused Rahul Pandey to one Ashish Kumar
Sahu and the petitioners and Rahul Pandey, husband of
respondent No.2, have pocketed the money and thereby
committed the offence under Sections 406 and 420 of
the IPC. It is further case of the prosecution that on
02.11.2018 the Station House Officer, Mahila Thana,
Raipur during the course of investigation served
notice under Section 91 CrPC to respondent No.2 to
submit a list of articles which she had taken to his
matrimonial home which states as under:
"uksfVl /kkjk 91 C.R.P.C.
izfr]
Jherh ekulh pkScs ifr jkgqy ik.Ms; mez 29 o"kZ
lkfdu edku uEcj 115&A lsDVj&3 dk'kh vikVZesUV ds lkeus
xhrkatyh uxj jk;iqj Fkkuk flfoy ykbZu jk;iqj
eksckbZy uEcj 82250&72032
fo"k;%& L=h/ku migkj dk lkekuks dh vly jlhn izLrqr djus ckcr~A
vkidks bl uksfVl ds tfj;sa lwfpr fd;k tkrk gS fd vkids }kjk efgyk
Fkkuk jk;iqj esa [email protected] /kkjk 498¼,½] 506] 34 rk-fg iathc) djkbZ
gSA fookg ds le; tks Hkh L=h/ku migkj Lo:i vki vius llqjky ysdj
x;s mu lkekuksa dh lwph ,oa vly jlhn izLrqr djsaA rkfd izdj.k esa
vfxze dk;Zokgh dh tk ldsaA
[email protected]&2-11-18
Mansi Fkkuk izHkkjh
2.11.18 efgyk iqfyl Fkkuk
jk;iqj ¼N0x0½
35.In response to above, respondent No.2/complainant
submitted her reply and also submitted a list of
articles by memo dated 4.11.2018. Reply filed by
respondent No.2 states as under:
izfr]
Jheku Fkkuk izHkkjh
efgyk iqfyl Fkkuk]
jk;iqj N-x-
fo"k;%& vkids }kjk fn;s x;s uksfVl varxZr /kkjk 91 Cr.P.C.
fnukad [email protected]@2018 dk tokc e; [kpZ ,oa lwph vuqlkj
jlhn lfgrA
egksn;k]
fuosnu gS fd vkids }kjk fn, x, uksfVl varxZr /kkjk 91
Cr.P.C. fnukad [email protected]@2018 ds laca/k esa esjs fookg ds volj ij
fn, x, migkj] uxn /kujkf'k ,oa lkekuksa dh lwph izLrqr dj jgh gwW
RkFkk bl volj ij gq, [kpZ dk fooj.k o miyC/k jlhn Hkh izLrqr dj
jgh gWwA pqafd fookg ds le; dksbZ Hkh efgyk vius ifr o llqjkyokyksa
ds izfr HkkoukRed :i ls ldkjkRed lksp ysdj tkrh gS rFkk oSokfgd
thou ds fuoZgu ds izfr visf{kr vkSj vk'kkfUor gksrh gSA ijUrq eq>s bu
ifjfLFkfr;ksa ls xqtjuk iMs+xk ,slh vis{kk ugha FkhA ,sls le; esa eq>s Hkh
ifr o llqjky okyksa ls ,slh gh vis{kk Fkh blfy, bl ifjfLFkfr ls
vufHkK Fkh fd llqjkyokyksa dh izrkM+uk ds QyLo:i eq>s f'kdk;r ds
le; mijksDr lHkh lkekuksa dh lwph vkSj [kpZ dk fooj.k Hkh izLrqr
djuk iMs+xkA blfy, dqN lkekuksa ds [kpZ vkSj jlhnsa tks fookg dh
O;Lrrk vkSj rhu o"kksZ ds yacs varjky ds i'pkr~ xqe gksus dh laHkkouk
ls badkj ugha fd;k tk ldrkA vr,o esjs ikl tks Hkh lkekuksa dh lwph
o [kpz dh jlhnsa miyC/k gS og eSa izLrqr dj jgh gWw] rFkk migkj esa
izkIr leLr lkekuksa dh lqph Hkh izLrqr dj jgh gWwA blds vfrfjDr
viuh Le`fr ds vk/kkj ij Hkh fn x, lkekuksa o vigkj dh lqph Hkh
izLrqr dj jgh gwWA
lknj fuosnu lfgr
fnukad izkfFkZ;k
[email protected]@18 [email protected]&
Jherh ekulh pkScs]
ifr jkgqy pkScs]
fuoklh&e-ua- [email protected],] lsDVj&3]
dk'kh vikVZesaV ds lkeus]
xhrkatyh uxj] jk;qij N-x-
36. It is the case of the prosecution that on 15.12.2018
notice under Section 91 CrPC was served to the
petitioners and Mr.Rahul Pandey by Station House
Officer asking them to produce the articles sought by
her, which respondent No.2 has taken to her
matrimonial home (Jabalpur) after marriage which
states as under:
uksfVl /kkjk 91 C.R.P.C.
izfr]
01- jkgqy ik.Ms; firk uanfd'kksj ik.Ms;
02- Jherh lhek ik.Ms; ifr uanfd'kksj ik.Ms;
03- uanfd'kksj ik.Ms;
04- lqehr ik.Ms; firk uanfd'kksj ik.Ms;
05- fufru ik.Ms; firk uanfd'kksj ik.Ms;
fuoklh&U;w 'kksHkkiqj dkWyksuh Oghdy QSDVªh ds ihNs tcyiqj ¼e0iz0½
fo"k;%& L=h/ku lkeku izLrqr djus ckcr~A
vkidks bl uksfVl ds tfj;sa lwfpr fd;k tkrk gS fd vkiyksxksa ds
fo:) efgyk Fkkuk jk;iqj esa vi-dz- [email protected] /kkjk 498¼,½] 506] 34 rk-
fg- iathc) gSA fookg ds le; tks L=h/ku migkj Lo:i izkfkFkZ;k Jhefr
ekulh pkScs vius lkFk llwjky ysdj xbZ gS A mu lkekuksa dh lwph ,oa
vly llhn IkzLrqr dh gSA izkfFkZ;k viuk lkeku pkgrh gS vki 05 fnol
ds vUnj izLrqr djsA rkfd izdj.k esa vfxze dk;Zokgh dh tk ldsaA
[email protected]&
Fkkuk izHkkjh
efgyk iqfyl Fkkuk
jk;iqj ¼e0iz0½
vkjksihx.kksa ds }kjk uksfVl ysus ls badkj
[email protected]&
15-12-18
The notice is said to have been refused by the
petitioners and again notice was issued to the
petitioners on 28.1.2018 by sending it by registered
post.
37. At this stage, it would be appropriate to notice
Section 405 of the IPC which states as under:
"405. Criminal breach of trust.--Whoever, being
in any manner entrusted with property, or with
any dominion over property, dishonestly
misappropriates or converts to his own use
that property, or dishonestly uses or disposes
of that property in violation of any direction
of law prescribing the mode in which such
trust is to be discharged, or of any legal
contract, express or implied, which he has
made touching the discharge of such trust, or
wilfully suffers any other person so to do,
commits "criminal breach of trust"."
38. Offence under Section 405 of the IPC is punishable
under Section 406 of the IPC which states as
under:
"406. Punishment for criminal breach of trust.
Whoever commits criminal breach of trust shall
be punished with imprisonment of either
description for a term which may extend to
three years, or with fine, or with both."
39. Criminal breach of trust consists of any one of the
four positive acts namely, misappropriation,
conversion, use or disposal of that property. The
ingredients of offence of criminal breach of
trust are,
(i) That, accused must have been entrusted with the
property or dominion over it,
(ii) The accused must have misappropriated the
property or disposed of that property in violation
of subtract,
as such, offence under Section 405 of the IPC can
be said to have been committed only when all
ingredients of that offence as defined in statute
are found to have been satisfied.
40. In the matter of Velji Raghavji Patel v. The State
of Maharashtra33 the Supreme Court has clearly held
that in order to establish "entrustment or
dominion" over property to an accused person, mere
existence of that person's dominion over property
is not enough. It must be further shown that his
dominion was the result of "entrustment".
41. In the matter of State of Gujarat v. Jaswantlal
33 AIR 1965 SC 1433
Nathalal34 the Supreme Court has held that the
expression "entrustment" carries with it the
implication that the person handing over any
property or on whose behalf that property is handed
over to another, continues to be its owner. Further
the person handing over the property must have
confidence in the person taking the property so as
to create fiduciary relationship between them.
42. In Sushil Kumar Gupta v. Joy Shankar Bhattacharjee35
the Supreme Court has held that offence of criminal
breach of trust is committed when a person who is
entrusted in any manner with property or with
dominion over it, dishonestly misappropriates it, or
converts it to his own use.... The appellant's manner
of dealing with the money entrusted to his custody
clearly constitutes criminal breach of trust.
43. The Supreme Court in the matter of The
Superintendent & Remembrancer of Legal Affairs,
West Bengal v. S.K.Roy36 has held that there are two
distinct parts involved in the commission of the
offence of criminal breach of trust. 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
34 AIR 1968 SC 700
35 AIR 1971 SC 1543
36 (1974) 4 SCC 230
misappropriation or dealing with the property
dishonestly and contrary to the terms of the
obligation created.
44. Similarly, in the matter of Pratibha Rani (supra)
the Supreme Court has clearly held that Hindu
married woman is absolute owner of stridhan
property and can deal with it in any manner she
likes. It was observed as under:
"7. It is, therefore, manifest that the
position of stridhan of a Hindu married woman's
property during coverture is absolutely clear
and unambiguous; she is the absolute owner of
such property and can deal with it in any
manner she likes she may spend the whole of
it or give it away at her own pleasure by gift
or will without any reference to her husband.
Ordinarily, the husband has no right or
interest in it with the sole exception that in
times of extreme distress, as in famine,
illness or the like, the husband can utilise it
but he is morally bound to restore it or its
value when he is able to do so. It may be
further noted that this right is purely
personal to the husband and the property so
received by him in marriage cannot be proceeded
against even in execution of a decree for debt.
28. To sum up, the position seems to be that a
pure and simple entrustment of stridhan without
creating any rights in the husband excepting
putting the articles in his possession does not
entitle him to use the same to the detriment of
his wife without her consent. The husband has
no justification for not returning the said
articles as and when demanded by the wife nor
can he burden her with losses of business by
using the said property which was never
intended by her while entrusting possession of
stridhan. On the allegations in the complaint,
the husband is no more and no less than a pure
and simple custodian acting on behalf of his
wife and if he diverts the entrusted property
elsewhere or for different purposes he takes a
clear risk of prosecution under Section 406 of
the IPC. On a parity of reasoning, it is
manifest that the husband, being only a
custodian of the stridhan of his wife, cannot
be said to be in joint possession thereof and
thus acquire a joint interest in the property.
31. We are clearly of the opinion that the
concept of stridhan property of a married woman
becoming a joint property of both the spouses
as soon as she enters her matrimonial home and
continues to be so until she remains there or
even if there is a break in the matrimonial
alliance, is in direct contravention of Hindu
Law of Sadayika which has been administered
since more than a century by High Courts, Privy
Council as also this Court. By a pure and
simple figment of the fertile imagination the
Judges in Vinod Kumar's case seem to have
rewritten the law of criminal breach of trust
contained in Sections 405 and 406 IPC so as to
carve out an imaginary exception to the
application of the Penal Code. A more tragic
consequence of the view taken by the High Court
is that even if there is a break in the
matrimonial alliance and the wife wants her
husband to return her exclusive property and he
refuses to return, even then the provisions of
Section 406 IPC would not apply. It is an
extreme travesty of justice for a court to say
that whenever a married woman demands her
stridhan property from her husband she should
be driven to the dilatory process of a civil
court and her husband would be debarred from
being prosecuted by a criminal court. By a
strange and ingenious process of holding that
such an act of a husband does not attract the
provisions of the Penal Code, as the property
being joint there is no question of the husband
being a trustee or holding the same in a
fiduciary capacity. Such a view, in our
opinion, is not only contradictory butwhat the
High Court has said before regarding the
applicability of Section 27 of the Hindu
Marriage Act and the nature of stridhan as
referred to aboveis also neither in consonance
with logic and reason nor with the express
provisions of the Penal Code and seems to us to
be inspired by a spirit of male chauvininism so
as to exclude the husband from criminal
liability merely because his wife has refused
to live in her matrimonial home. We are indeed
surprised how could the High Court, functioning
in a civilised and socialistic society such as
ours, play havoc with judicial interpretation
of an important branch of law."
45. The principle of law laid down in Pratibha Rani
(supra) was reiterated by threeJudge Bench of the
Supreme Court in the matter of Rashmi Kumar (Smt) v.
Mahesh Kumar Bhada37 and their Lordships considered
the meaning and nature of Stridhan and held that wife
is absolute owner of stridhana property. It is not
the joint property of the wife and the husband. It
was observed as under:
"10. It is thus clear that the properties
gifted to her before the marriage, at the time
of marriage or at the time of giving farewell
or thereafter are her stridhana properties. It
is her absolute property with all rights to
dispose at her own pleasure. He has no control
over her stridhana property. Husband may use it
during the time of his distress but nonetheless
he has a moral obligation to restore the same
or its value to his wife. Therefore, stridhana
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."
Their Lordships further held that stridhana property
is the exclusive property of the wife on proof that
she entrusted the property or dominion over the
stridhana property to her husband or any other member
of the family, there is no need to establish any
37 (1997) 2 SCC 397
further special agreement to establish that the
property was given to the husband or other member of
the family. It was observed as under:
"13. Thus when the wife entrusts her stridhana
property with the dominion over that property
to her husband or any other member of the
family and the husband or such other member of
the family dishonestly misappropriates or
converts to his own use that property or
wilfully suffers any other person to do so, he
commits criminal breach of trust. The essential
ingredients for establishing an offence of
criminal breach of trust as defined in Section
405 and punishable under Section 406, IPC with
sentence for a period upto three years or with
fine or with both, are: [i] entrusting any
person with property or with any dominion over
property; [ii] the person entrusted dishonestly
misappropriating or converting to his own use
that property; or dishonestly using or
disposing of that property or wilfully
suffering any other person so to do in
violation of any direction of law prescribing
the mode in which such trust is to be
discharged, or of any legal contract made
touching the discharge of such trust. The
expression "entrustment" carries with it the
implication that the person handing over any
property or on whose behalf that property is
handed over to another, continues to be its
owner. Entrustment is not necessarily a term of
law. It may have different implications in
different contexts. In its most general
significance, all its imports is handing over
the possession for some purpose which may not
imply the conferment of any proprietary right
therein. The ownership or beneficial interest
in the property in respect of which criminal
breach of trust is alleged to have been
committed, must be in some person other than
the accused and the latter must hold it on
account of some person or in some way for his
benefit. In Pratibha Rani's case, the majority
has extensively considered the words
"entrustment" of and "dominion" over the
property. All the caselaw in that behalf was
exhaustively considered obviating the necessity
to tread once over the same. In order to
establish entrustment of dominion over the
property, both the majority and minority relied
on in particular the judgment of this Court in
Velji Raghavji Patel v. State of Maharashtra
[(1965) 2 SCR 492] wherein it was held that in
order to establish entrustment of dominion over
the property to an accused person, mere
existence of that person's dominion over the
property is not enough. It must be further
shown that his dominion was the result of
entrustment. The question therein pertained to
the entrustment with the dominion over the
partnership property by one partner to the
other. It was held that the prosecution must
establish that the dominion over the assets or
particular assets of the partnership was by a
special agreement between the parties. The
property of the partnership being a partnership
asset, every partner has a right to or a
dominion over it. It was held that special
agreement was necessary to constitute an
offence of criminal breach of trust defined
under Section 405, IPC. In view of the finding
that stridhana property is the exclusive
property of the wife on proof that she
entrusted the property or dominion over the
stridhana property to her husband or any other
member of the family, there is no need to
establish any further special agreement to
establish that the property was given to the
husband or other member of the family. It is
always a question of fact in each case as to
how 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 stridhana property or
dominion over her stridhana came to be made to
the husband or any other member of the family
or the accused person, as the case may be. We
are in respectful agreement with the majority
view in Pratibha Rani's case and consequently
requires no reconsideration."
46. In the matter of Onkar Nath Mishra and others v.
State (NCT of Delhi) and another38 the Supreme Court
quashed the complaint against the petitioner's
therein for offence under Section 406, IPC finding
that there is no averment as to entrustment of any
kind of property by the complainant to the accused
person. It was observed as under:
"18. In the present case, from a plain reading
of the complaint filed by the complainant on
8111994, extracted above, it is clear that
the facts mentioned in the complaint, taken on
their face value, do not make out a prima facie
case against the appellants for having
dishonestly misappropriated the Stridhan of the
complainant, allegedly handed over to them,
thereby committing criminal breach of trust
punishable under Section 406 I.P.C. It is
manifestly clear from the afore extracted
complaint as also the relevant portion of the
charge sheet that there is neither any
allegation of entrustment of any kind of
property by the complainant to the appellants
nor its misappropriation by them. Furthermore,
it is also noted in the chargesheet itself
that the complainant had refused to take
articles back when this offer was made to her
by the Investigating Officer. Therefore, in our
opinion, the very pre requisite of entrustment
of the property and its misappropriation by the
appellants are lacking in the instant case. We
have no hesitation in holding that the learned
Additional Sessions Judge and the High Court
erred in law in coming to the conclusion that a
case for framing of charge under Section 406
IPC was made out."
47. Following its earlier decisions including Onkar Nath
Mishra (supra) the Supreme Court again in the matter
of V.P. Shrivastava v. Indian Explosives Limited and
38 (2008) 2 SCC 561
others39 quashed the complaint for offence under
Sections 405 and 406 of the IPC holding that there is
nothing in the complaint, which even remotely suggest
that complainant/IEL had entrusted any property to
the appellant / accused and appellant / accused had
dominion over any of such properties dishonestly
converted to their own use.
48. From the principle of law flowing from the aforesaid
judgments rendered by their Lordships of the Supreme
Court (supra), it is absolutely clear that the
accused being in any manner entrusted with property
or with any dominion over property, dishonestly
misappropriates or converts to his own use that
property, or dishonestly uses or disposes of that
property in violation of any direction of law
prescribing the mode in which such trust is to be
discharged, or of legal contract, express or implied,
then only offence under Section 405 IPC can be said
to be made out.
49. A careful perusal of the complaint dated
7.4.2018/18.4.2018 would show that respondent No.2/
complainant in her complaint has stated that ₹22 lakhs
was given as present by her family friends and ₹3
lakhs as stridhan by her father at the time of
39 (2010) 10 SCC 361
marriage, which was obtained by the petitioners and
no share was given to her. It is nowhere alleged that
respondent No.2 at any point of time entrusted the
said stridhan or presents given at the time of
marriage to the petitioners herein, which is one of
the essential ingredients to establish the offence
under Sections 405 and 406 of the IPC.
50. Similarly, it is not clear from perusal of complaint
and connected documents, FIR and statement of
respondent No.2/complainant and prosecution witnesses
as to how and in what manner the entrustment of
stridhan held by respondent No.2 and dominion over
property came to be made to the petitioners herein.
Similarly, by notice dated 02.11.2018 the Station
House Officer, Mahila Thana, Raipur has directed
respondent No.2 to submit a list of stridhan / gifts
with which she had taken to her matrimonial home and
which was given as per letter dated 4.11.2018
(available at page 46 of chargesheet), it nowhere
states that these gifts, presents and stridhan were
entrusted in any manner to the petitioners herein
(four in number). Even notice issued under Section 91
CrPC to the petitioners by the Station House Officer
on 15.12.2018 and 28.1.2019 (which is available at
page 80 and 81 of the chargesheet) only directs the
petitioners and Rahul Pandey to produce the articles
which respondent No.2 had taken along with her to her
matrimonial home. It is not the allegation that the
said stridhan property or gifts or presents at any
point of time were entrusted to the petitioners
herein, who are inlaws of respondent No.2 herein, as
such, there is no iota of evidence in the entire
chargesheet as to how and in what manner entrustment
of stridhan property or dominion over property came
to be made to the petitioners who are relatives of
husband of respondent No.2, as such, one of the
essential ingredients for constituting the offence
under Section 405 of the IPC that entrustment of
stridhan or dominion of stridhan property to the
petitioners are totally missing.
51. Not only this, the Supreme Court in the matter of
Pratibha Rani (supra) has clearly held in para28
that the husband has no justification for not
returning the stridhan as and when demanded by the
wife nor can he burden her with losses of business by
using the said property which was never intended by
her while entrusting possession of stridhan. It was
further held that the husband is no more and no less
than a pure and simple custodian acting on behalf of
his wife and if he diverts and entrusted property
elsewhere or for different purposes he takes a clear
risk of prosecution under Section 406 of the IPC.
52. In the instant case, there is no whisper or evidence
on record or in the entire chargesheet that the
complainant / respondent No.2 at any point of time
demanded / claimed for return of said articles having
entrusted to the petitioners and it has not been
returned by the petitioners. Only notice under
Section 91 CrPC is said to have been served by the
Station House Officer, Mahila Thana, Raipur to the
petitioners on 15.12.2018 and 28.1.2019 to claim
return of stridhan and notice is said to have been
served by the Station House Officer to the
petitioners. The notice which is said to have been
served by the Station House Officer who was not an
agent of respondent No.2 / complainant. He being
investigating officer under the provisions of the
CrPC and his demand, if any, for return of stridhan
cannot be said to be demand on behalf of respondent
No.2, as such, the prosecution has failed to make out
the essential ingredient of offence under Section 406
of the IPC as there is no allegation that as to how
and in what manner the entrustment of stridhan
property or dominion over stridhan and gifts/presents
came to be made to the petitioners who are only
relatives i.e. fatherinlaw, motherinlaw and
brother of husband of respondent No.2 particularly
when respondent No.2 never made any demand from the
petitioners and it is not the case that on being
demanded the stridhan property / presents, the
petitioners or her husband have not returned the said
stridhan, therefore, offence under Section 406 of the
IPC is made out. It is not the case that the
petitioners were ever entrusted with stridhan or
presents and gifts which were given to respondent
No.2 at the time of marriage.
53. Similarly, it is also the case of the prosecution
that the vehicle Mahindra XUV was given by her father
to respondent No.2 at the time of marriage, which was
sold by the petitioners and Mr.Rahul Pandey, her
husband on 18.2.2017 to one Ashish Kumar Sahu and the
vehicle was transferred in his name. Ashish Kumar
Sahu who has purchased the vehicle has been examined
under Section 161 CrPC on 15.12.2018. He has clearly
stated that on being informed through father of
respondent No.2 he purchased the said vehicle on
18.2.2017 and ₹ 2 lakhs were given to respondent No.2
and remaining amount was got financed from Finance
Company. Thereafter, on 14.2.2019 supplementary
statement of Mansi Choubey, respondent No.2 herein
was recorded in which she has stated that after
marriage, the said XUV vehicle bearing registration
No.MP 20 CE 6877 was sold by her husband Rahul Pandey
and the petitioners and said ₹ 2 lakhs was not given
to her. The fact remains that the said vehicle was
sold by respondent No.2 to Ashish Kumar Sahu on
18.2.2017 and vehicle was transferred in the name of
Ashish Kumar Sahu after completing the formalities
required under Section 50 of the Motor Vehicles Act,
1988 and rules made thereunder and necessary
registration certificate was issued in favour of
Ashish Kumar Sahu on 22.4.2017, which has been filed
along with chargesheet and is available at page 64
of the chargesheet, which clearly demonstrates that
transfer of said vehicle was made in accordance with
the provisions contained in Section 50 of the Motor
Vehicles Act and rules made thereunder and FIR was
lodged as late as on 7.4.2018 / 28.4.2018. It is
unbelievable that vehicle in question was sold on
18.2.2017 and respondent No.2 started living
separately from her inlaws and from her husband from
27.7.2017 and she has lodged the report on 7.4.2018 /
28.4.2018 and she did not make any statement that she
was not given proceeds of sale in her statement
recorded firstly on 13.10.2018 and when Ashish Kumar
Sahu, purchaser of the said vehicle, made statement
on 15.12.2018 that he has already given ₹ 2 lakhs to
respondent No.2, then only by way of supplementary
statement made on 14.2.2019 respondent No.2 made
statement that vehicle was sold by Rahul Pandey and
the petitioners and she was not given the sale
proceeds of ₹ 2 lakhs. So far as XUV vehicle is
concerned, there is no evidence on record that at any
point of time it was entrusted to the present
petitioners and she has specifically named her
husband Rahul Pandey that he sold the vehicle to
Ashish Kumar Sahu, as such, taking the contents of
the FIR as it is and documents as filed by the
prosecution in shape of chargesheet, it cannot be
held that the petitioners have committed the offence
under Sections 406 and 420 of the IPC and the
petitioners' case is covered by the parameters laid
down by the Supreme Court in Bhajan Lal's case
(supra) and prosecution against them for the above
stated offences deserves to be quashed.
54. It would be appropriate to consider the judgments
cited by learned counsel for the respondents.
(i) In the matter of Mohd. Allauddin Khan (supra)
the Supreme Court has held that the High Court has no
jurisdiction to appreciate the evidence in
proceedings under Section 482 CrPC being matter of
appreciation of evidence during trial.
(ii) Similarly, in the matter of Saroj Kumar Sahoo
(supra) their Lordships of the Supreme Court have
explained the nature, scope, purpose and exercise of
power and jurisdiction under Section 482 CrPC and
held that inherent power is to be exercised sparingly
and that too in the rarest of rare cases. It is to be
exercised ex debito justitiae, to do real and
substantial justice and not to stifle legitimate
prosecution and the High Court should not embark upon
an enquiry as to reliability of evidence to sustain
the allegations, which is the function of the trial
Judge.
(iii) In J.P.Sharma (supra), it has been held by
their Lordships of the Supreme Court that the High
Court's jurisdiction under Section 482 CrPC to quash
criminal complaint and proceedings cannot be
exercised, if primafacie offences are made out on
the basis of allegations made in the complaint
without going into the matter otherwise of the
allegation.
(iv) In the matter of Taramani Parakh (supra) the
Supreme Court has held that if allegations are absurd
or do not makeout any case or if it can be held that
there is abuse of process of law, the proceedings can
be quashed, but if there is triable case, the Court
does not go into reliability or otherwise the version
or the counter version. In matrimonial cases, the
Courts have to be cautious when omnibus allegations
are made particularly against relatives, who are not
generally concerned with the offences of the couple.
55. As a fallout and consequence of the abovestated
legal analysis, Criminal Case No.2614/2019 (Rahul
Pandey and others v. State of Chhattisgarh and
others) pending in the Court of Judicial Magistrate
First Class, Raipur (Chhattisgarh) is hereby quashed
to the extent of coaccused herein namely Nand
Kishore Pandey, Sumit Pandey, Nitin Pandey and Seema
Pandey only. Prosecution against Mr.Rahul Pandey
shall continue. It is made clear that all the
observations made in this order are for the purpose
of deciding the petition filed by the petitioners
hereinabove and this Court has not expressed any
opinion on merits of the matter and concerned Court
will decide criminal case pending against one of the
coaccused strictly in accordance with law without
being influenced by any of these observations made
hereinabove.
56. The petition under Section 482 CrPC is allowed to the
extent indicated hereinabove. No cost(s).
Sd/
(Sanjay K.Agrawal)
Judge
B/
