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2002 DIGILAW 437 (CAL)

Manju Rani Gharami v. State of West Bengal

2002-07-05

JOYTOSH BANERJEE

body2002
JUDGMENT The present hearing arises out of an application under Section 482 of the Code of Criminal Procedure, 1973, whereby the petitioner Manju Rani Gharami has prayed for quashing of proceedings in G.R. Case No. 2201 of 2002 pending before the Sub-Divisional Judicial Magistrate, Barrackpore under Sections 363/365/366/368/380/120B of the Indian Penal Code. 2. Shortly put the background leading to the filing of the present petition is as follows :– That the petitioner is legally married wife of the defacto-complainant of the aforesaid case Supriti Ranjan Gharami of Sukantanagore, P.S. Kharda, District-North 24-Parganas. On or about 1997 while living with her husband, she gave birth to a child Sarnali Gharami @ Rini. It is alleged that the matrimonial life of the said couple was not at all happy as the husband used to subject the petitioner to mental and physical torture on various grounds. The people of the locality including Dr. Shankar Prosad Das protested against such conduct of the petitioner's husband Supriti Ranjan Gharami (O.P.2), who took out an application under Section 156 subsection (3) of the Code of Criminal procedure before the S.D.J.M., Barrackpore alleging commission of offences as noted above against the petitioner as well as against the said Dr. Sankar Prosad Das alleging, inter alia, that on 20.11.99, the said Dr. Sankar Prosad Das and the petitioner left the residence or the defacto-complainant with the minor child and various gold ornaments and that Dr. Das has kept the petitioner and the minor child wrongfully confined in a secret place after kidnapping them. It is further alleged that pursuant to such direction of the S.D.J.M., Barrackpore, P.S. Kharda Case No. 222 dated 18.6.2000 under the aforesaid sections of the Indian Penal Code was started and the police after investigation submitted chargesheet dated 31.7.2000 against the petitioner and the said Dr. S.P. Das. Now the petitioner has come up, with the present application contending that the allegations made in the impugned charge-sheet even if accepted to be true in their entirety do not disclose the essential ingredients of the offences alleged. 3. The only point for consideration here is whether in the facts and circumstances of the case, the charge-sheet in question should be quashed or not ? I have heard the learned Advocate for both sides. 3. The only point for consideration here is whether in the facts and circumstances of the case, the charge-sheet in question should be quashed or not ? I have heard the learned Advocate for both sides. The learned Advocate for the petitioner submits that in the instant case, the petitioner left her matrimonial home with the child on her own volition and the very element of force and deceitful means are missing in the facts and circumstances of the case. It is further contended that the condition precedent of the offence under Section 368 is kidnapping or abduction and if the same is missing there cannot be any offence under Section 368 I.P.C. Regarding the allegation of theft of some gold ornaments, it is submitted by the learned Advocate for the petitioner that the mere removal of the gold ornaments cannot constitute an offence. There must be a dishonest intention for the purpose of removal of those articles. On the other hand, if the article is removed under bona fide claim it is not theft. The learned Advocate for the O.P. No.2 husband has submitted that the petitioner committed the offence punishable under Section 368 I.P.C. in respect of the child. It is further submitted that strong suspicion can be the basis of a charge in respect of an offence punishable under Section 380 I.P.C. In support of such contention, the learned Advocate for the O.P. has placed his reliance on the case of Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja & Ors. reported in 1979 Cr. L.J. 1390. It is further submitted that the instant case is not a case where the charge-sheet should be quashed. In this respect, the learned Advocate for the O.P. No.2 has mainly relied on the allegation regarding theft of some gold ornaments from the house of O.P. No.2. The learned Advocate appearing for the State of W.S. (O.P. No.1) has supported the contention of the petitioner and has submitted that in the facts and circumstances of the case, the chargesheet has failed to disclose any offence against the petitioner. 4. The undisputed position here is that the petitioner is the mother of the child and she left her matrimonial home with the child and went to stay with the accused No.1 of the case. 4. The undisputed position here is that the petitioner is the mother of the child and she left her matrimonial home with the child and went to stay with the accused No.1 of the case. Further, admitted position is that the petitioner left the matrimonial home on her own volition and the very element of force, deceitful means to constitute an offence of abduction are missing. It is an admitted position of law that the condition precedent of the offence punishable under Section 368 I.P.C. is kidnapping or abduction. It the same is missing there cannot be any offence punishable under Section 368 I.P.C. The question here is whether the offence punishable under Section 368 I.P.C. is committed in respect of the minor daughter of the petitioner and the defacto-complainant. As per the definition of kidnapping contained in Section 361 of the I.P.C., there must be taking a minor out of the keeping of his/her lawful guardian, without the consent of such guardian. Now for a child both parents are natural guardians and therefore they are lawful guardians. It is not that during the lifetime of the father it is impossible for the mother to be considered as a natural guardian/lawful guardian. Suffice it to say that for the purpose of considering the question whether an offence of kidnapping within the meaning of Section 361 has been committed here, it can be said without hesitation that when the mother takes away the child with her at the time of leaving the house of her husband, it is doubtful whether an offence of kidnapping is committed by such act or not. The allegation here is not that a competent Court of law gave the custody of the child to the father and the mother took away from the custody of the father without his consent and knowledge. So in the facts and circumstances of the case, there cannot be any allegation under Section 368 I.P.C., as the very element of kidnapping is missing here. 5. So in the facts and circumstances of the case, there cannot be any allegation under Section 368 I.P.C., as the very element of kidnapping is missing here. 5. Coming about the question to consider whether the allegation raised has disclosed an offence punishable under Section 380 I.P.C., it is to be noted that under the definition of the offence theft contained in Section 378 I.P.C., the prosecution must establish that there was a taking away of a movable property, out of a possession of another, without his consent and such taking away was with the intention to take the same dishonestly. Section 24 of the I.P.C. defines ‘dishonestly’ in the following manner. “Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing ‘dishonestly’. ‘Wrongful gain’ and ‘wrongful loss’ have been defined in Section 24 of the Act in the following manner. ‘Wrongful gain’ is gained by lawful means of property to which the person gaining is not legally entitled. ‘Wrongful loss’ is the loss by unlawful means of property to which the person losing it is legally entitled.” 6. In the instant case, the whole allegation is that the petitioner, the wife of the defacto-complainant while leaving the house took away some ornaments without the consent of the defacto-complainant and in the petition of complaint there was no allegation that the gold ornaments belonged to the defacto-complainant exclusively. The admitted back-ground, in this case is that the petitioner/wife who solong lived with the husband and who also was in possession of those gold ornaments along with the husband left the house with those gold ornaments. In that background, it cannot be said that the action on the part of the wife was to cause wrongful gain to her or wrongful loss to defacto-complainant, the husband. It is well established that before the offence of theft is made out, it has to be shown that (1) the accused was not legally entitled to the property alleged to be stolen and that (2) the complainant was wrongfully deprived of the property. It is well established that before the offence of theft is made out, it has to be shown that (1) the accused was not legally entitled to the property alleged to be stolen and that (2) the complainant was wrongfully deprived of the property. Considering all these it can be said clearly that in the facts and circumstances of the case one of the most important ingredients of the theft, namely, intending to take dishonestly any movable property, is absent and therefore prima facie there cannot by any allegation punishable under Section 379 or under Section 380 of the Indian Penal Code. Here it is to be noted that the decision in case of Supdt. & Remembrancer of Legal Affirs, W.B. v. Anil Kumar Bhunja & Ors. (supra) would not be relevant for the purpose of advancing the main contention of the learned Advocate for the O.P. that the allegations on the basis of which a charge-sheet has been submitted are sufficient to disclose an offence punishable under Section 380 I.P.C. In the reported case the whole question centered round the interpretation and application of the term “possession” used in Section 29(b) of the Arms Act (Act 4 of 1959): That case is distinguishable from the present one as in that case, the Court was called upon to consider whether there was delivery of ‘possession’ of arms to one of the accused or not. But it was not the case there that the whole allegations raised in the charge-sheet, did not constitute any offence, as it is found in the instant case. 7. From the discussion above, it is clear that in the facts and circumstances as alleged there cannot be any case either of kidnapping as defined under Section 361 of the I.P.C. There cannot be any kidnapping in respect of the child daughter of the petitioner aged about 3 years in view of the fact that under the provisions of the Hindu Minority and Guardianship Act, 1956, the petitioner as the mother was entitled to the custody of her child daughter and her taking the child could not have been an act of kidnapping. Since the offence punishable under Section 368 I.P.C. is very much dependent upon the commission of an offence of kidnapping or abduction, in the absence of the allegations which constitute the offence of kidnapping or abduction, there cannot be any offence punishable under Section 368 I.P.C. So far as the offence punishable under Section 380 I.P.C. is concerned I have already noted that the basic ingredients of offence is missing here. That apart there is no allegation that the gold ornaments the subject-matter of theft was the property of the husband. The mere allegation in this respect is that the gold ornaments were taken away by the wife/petitioner from the matrimonial home. Therefore, if the removal of such gold ornaments are done under a bona fide right or claim, the same cannot fall within the ambit of theft as defined under Section 378 of the I.P.C. (Chandi Kr. Das Karmakar & Another v. Abanidhar Roy reported in 1965(1) Crl. L.J. 496 : AIR 1965 SC 585 ). In view of the findings above, the criminal prosecution through the filing of the charge-sheet deserves to be quashed. I accordingly allow the application. The proceedings in G.R. Case No. 2201/2000 pending before the S.D.J.M., Barrackpore in the District of 24-Parganas(N) arising out of Kharda P.S. Case No. 222 dated 18.6.2000 under Sections 363/365/366/368/380/120B are hereby quashed.