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2000 DIGILAW 236 (CAL)

Rinita Rakshit v. State of West Bengal

2000-05-09

MALAY KUMAR BASU

body2000
Judgment 1. This Revisional application is directed against the order dt. 12.5.98 passed by Sri D. Singha, Judicial Magistrate, 1st Class, Barrackpore in Case No. C-419/98 (T.No. 36/98) dismissing a complaint of the petitioner under Section 203 Cr. P. C. 2. The applicant lodged that complaint before the Court below against the opposite parties under Sections 406, 323, 504 and 506 I. P. C. on the allegations that the O. P.-accused No.1 and Nos. 2 to 4 being husband and in-laws respectively of the complaint's daughter, since deceased, who allegedly murdered her by setting fire on her body and against whom a police case under Section 302 I.P.C. was pending on that score had illegally taken away various articles including gold ornaments, garments, utensils, etc. which were presented by the complainant to her daughter during her marriage ceremony as dowries and misappropriated the same. When the petitioner after the demise of her daughter approached them with a request to deliver back the same to her, they refused to do so and abused her in filthy language and assaulted her with fists and blows. The details of the articles were annexed to the complaint in a separate sheet and the complaint was accompanied by another petition under sections 93/94 Cr. P.C. praying for issue of a search warrant for recovery of the listed articles from the custody of the accused- O. Ps. 3. After taking initial depositions of the complainant and her two witnesses the learned Magistrate was not satisfied about the making out of a prima facie case in support of the allegations in the complaint and was also of the view that until the police case against the accused persons under Section 302 I.P.C. was disposed of and the charge of murder against them was proved it could not be said that the accused-husband was disqualified from inheriting the property left by his wife under Section 25, Hindu Succession Act. Accordingly, he dismissed the complaint under Section 203 Cr.P.C. as well as the petition for search warrant. 4. Being aggrieved by and dissatisfied with this order of the learned Magistrate, the complainant has preferred this revisional application challenging it as illegal, erroneous and unsustainable. Accordingly, he dismissed the complaint under Section 203 Cr.P.C. as well as the petition for search warrant. 4. Being aggrieved by and dissatisfied with this order of the learned Magistrate, the complainant has preferred this revisional application challenging it as illegal, erroneous and unsustainable. The contentions on her behalf are that since her daughter's death was not a natural one, but homicidal, Section 15 of Hindu Succession Act has no manner of application and the Court below ought to have issued a search warrant as prayed for to enable the complainant to get back those articles which she gave to her daughter as dowry presentation. 5. In his order under challenge the learned Magistrate has held that the witnesses in their initial depositions have not stated the exact words in which the accused persons reacted when they allegedly went to demand back the articles. They have not given the filthy words in which the accused allegedly abused them or the words in which they intimidated. So far as the allegation of assault was concerned, the witnesses gave inconsistent evidence. Only the complainant deposed about assault while the two others remained silent on this point. Neither there has been any allegation of hurt or injury, far less production of any corroborative evidence like injury report. Thus, the learned Magistrate was justified in coming to the conclusion that the ingredients of the offences under Sections 323, 504 and 506 I.P.C. had not been prima facie made out. It is to be noted that nowhere in the four corners of the revisional application this part of the finding of the learned Magistrate has been subjected to any criticism. 6. So far as the allegation of an offence under Section 406 is concerned, the position is not on a better footing. In respect of such an offence the essential requirement is that there must be some element of entrustment. Here, admittedly, the articles in dispute were gifted to the deceased daughter as dowry during her marriage ceremony and there was no question of entrustment of the same in favour of the husband from the parents of the deceased. In respect of such an offence the essential requirement is that there must be some element of entrustment. Here, admittedly, the articles in dispute were gifted to the deceased daughter as dowry during her marriage ceremony and there was no question of entrustment of the same in favour of the husband from the parents of the deceased. So long as the wife was living, of course, these dowry gifts were being held by the husband in trust on her behalf, but as soon as she died, these became the properties of her husband in view of the provisions of Section 15(1) of the Hindu Succession Act. The contention of revisional applicant that the husband having allegedly murdered the deceased wife will be disqualified from inheriting to the properties left by her cannot be acceptable at this stage. The fact that a case of murder has been instituted against the husband and that case is pending cannot by any stretch of imagination or inference drive one to the conclusion that he is the murderer, until that case is disposed of and the charge of murder against him is found proved by the Court. Secondly, dowry gifts being not treated as properties inherited by the deceased from her father or mother the complainant cannot be entitled to the same applying Section 15(2) of the Hindu Succession Act in the absence of a finding of guilt of the above kind against the husband of the deceased. 7. Therefore, I do not find any error or impropriety in the impugned order of learned Magistrate not finding prima facie establishment of the ingredients of Section 406 I. P. C. against the accused persons and dismissing the complaint. 8. A search warrant under Section 93 Cr. P.C. is to be issued when a Court has reason to believe that a person to whom a summons or order under Section 91 has been addressed would not produce the thing as required by such summons. Section 91 provides that whenever a Court considers that the production of any thing or document is necessary or desirable for the purpose of any inquiry or trial such Court may issue summons requiring the person concerned to produce it. 9. Section 91 provides that whenever a Court considers that the production of any thing or document is necessary or desirable for the purpose of any inquiry or trial such Court may issue summons requiring the person concerned to produce it. 9. In the present case, in view of the finding of the learned Magistrate that no prima facie case in support of the complaint was made out and in view of his order dismissing the same, it is needless to point out that the Court had no scope to hold that such production of the things in question was either necessary or desirable. 10. Similarly, the provisions of Section 94 also will not be attracted for the simple reason that the articles in question had not been found to be stolen or in any way objectionable. In view of the foregoing discussion, it is held that the learned Magistrate correctly dismissed the complaint under Section 203 Cr. P.C. and also the petition for issue of Search Warrant and the revisional application being devoid of any merit is dismissed.