Neelam And Ors. vs State
1988 Latest Caselaw 38 Del

JUDGMENT

Malik, J.

(1) The petitioners are aggrieved of the prosecution initiated against them under sections 380/34 of the Indian Penal Code in F.I.R. No. 317/84, police station Kingsway Camp, Delhi pending in the court of the Metropolitan Magistrate. The Metropolitan Magistrate directed the charge sheet to be framed against the petitioners under sections 380/34 Indian Penal Code . by his order dated 24th July 1985. The revision filed against the order was also dismissed by the Additional Sessions Judge by his order dated 6th November 1985. The petitioners being not satisfied with the orders have approached this court under its extraordinary jurisdiction under section 482 Cr. P.C. and have prayed that the records be sent for and the F.I.R. and the prosecution of the petitioners be quashed as it is an abuse of the process of the court inasmuch as the prosecution has been initiated at the instance of the husband of petitioner No. 1 who is a police official and is meant to cause harassment.

(2) For some reason or the other the I petitioner No. 1 and the complainant Ravinder Kumar, a constable in the Delhi Police Force, could not pull on together On 13th of April 1984 after she was mal-treated and beaten by the complainant Ravinder Kumar her husband she decided to part ways with him and to shift to her parental house and in doing so she like a determined woman also decided to carry her own belongings including what was given to the husband at the time of the marriage Along with her. The allegation made by Ravinder Kumar, her husband in his complaint, is that on 13th of April 1984 when he was away his wife, petitioner No. 1 together with other petitioners came to his rented house No. 257, Dakha, Kingsway Camp, and removed his belongings in a tempo. In the complaint it is also stated by him that some of the articles were given by his parents to his wife at the time of his marriage which includes suits and jewellery. This D.D. was lodged by him at 9.35 p.m. on 13th of April 1984 and on the same day at about 4.55 p.m. his wife petitioner No. I had also lodged a D.D. in which she made a grievance about the mat-treatment by the complainant and also informed the police about the articles that were given by her parents to the complainant on the date of carriage. She further informed the police that she was-going to her parents house of her free will. Pursuant to this D.D. one A.S.I, went to the scene of the incident where he found the petitioner, the father of the petitioner and some other relations loading the household articles in a tempo. On the same day at 8.15 p.m. the petitioner No. I informed the police station Kingsway Camp by D.D. No. 14 that she was carrying her household articles along with her to the house of her patents. On 14th April 1984 she also gave a list of articles which were being carried by her. On 18th April 1984 the father of petitioner No. I also lodged a report giving details as to how his daughter was forced to take shelter in his house. He further reported to the police that when the articles were checked by his daughter at his house it was found that some belongings of the complainant were also accompanying the articles of petitioner No. 1. He gave details of those articles but the complainant refused to take these articles as a result of which these had to be formally seized by the police. Later on the complainant, on 22nd of April 1984 moved an application giving details resulting in the registration of the case and it is in this case that the petitioners are being prosecuted for ie offence of a theft in a dwelling house.

(3) The offence of a theft is defined in section 378. Indian Penal Code . as under ; "378. Theft,-Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. Explanation 1. A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth. Explanation 2. A moving effected by the same act which effects the severance may be theft. Explanation 3. A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it. Explanation 4. A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal. Explanation 5. The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied."

(4) The essential ingredient of the offence, therefore, is the removal of a movable article from somebody's possession and that removal must be in pursuance of a dishonest intention. In the present case, admittedly, the petitioner No. I and her husband complainant even on the date of incident were residing together in house No. 257, Dakha, Kingsway Camp as husband and wife and all the household goods belonging to either of the spouses were in their joint possession. Obviously, from the different reports made by petitioner No. I to the police her intention was that while proceeding to her parental house she would carry everything belonging to her along with her and in doing so if she has removed anything from her own house and from her own possession it cannot be said that the removal was from somebody else's possession much less that it was done with any dishonest intention. Considering the background in which she had to leave her husband's house it can never be said that she removed the goods with any dishonest intention. On the other hand, it can safely be said that she removed her goods with a view to protect her interest and not to remain at the mercy of the complainant, her husband, who was mal-treating her beyond limits. It is nowhere stated that any other petitioner had entered the house and removed the goods. As a matter of fact, all that the A S.I. had said is that he went to the spot and found the goods being loaded in a tempo by the petitioner No. 1, her father and some relations. It is a common knowledge that goods belonging to the husband and wife are very often stored together. In removing her own goods, it appears, she had removed some belongings of the complainant as well. It is apparent that soon after the removal of these goods she made a report to the police station about it and also told them that she intented to reside with her parents. Thereafter, when it was found on checking of the goods that some belongings of the complainant had also been taken by mistake the police was immediately informed about it but the complainant refused to collect his belongings. Had there been any dishonest intention or means read there was no question of the petitioner No. 1 or her father faithfully tendering this information to the police station on all important points of time. This goes to show that at no stage there was any dishonest intention on the part of the petitioner No. 1 or others which is an essential ingredient of an offence under section 380 Indian Penal Code . I, therefore, find sufficient justification in the grievance of the petitioner. The petition is, as such, allowed and F.I.R.No. 317/84 forming the basis for the prosecution of the petitioners in the court of the Metropolitan Magistrate is quashed. The case against the petitioners is dismissed and the petitioners are discharged.