Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 219 (ALL)

MITTHAN LAL v. STATE OF U. P.

2014-01-17

MANOJ MISRA

body2014
Manoj Misra,J. I have heard Sri G.S.D. Mishra, learned counsel for the applicants, Sri R.P. Pandey holding brief of Sri M.P. Tiwari for the opposite party No.2 and the learned A.G.A for the State. 2. By the present application, the applicants have sought for quashing of the summoning order dated 30.09.2011 passed by the Court of Special Chief Judicial Magistrate, Agra in Complaint Case No. 1212 of 2011 by which the applicant No.1 ( Mitthan Lal) and the applicant No.7 ( Rina Singh) have been summoned under Sections 406 and 506 I.P.C. whereas the remaining applicants have been summoned under Section 506 I.P.C. It is noteworthy that there is no prayer to quash the Complaint or the proceedings in pursuance thereof. 3. A perusal of the record reveals that the opposite party No.2, who is the father in law of the applicant no.7, filed a complaint against the applicants alleging: that the son of the complainant, namely, Sanjay Pal was married to the applicant No.7, namely, Rina Singh, a resident of district Dhaulpur, Rajasthan, on 13.02.2007, in accordance with hindu law; that Rina Singh was ill-tempered and, therefore, could not have good relations with her in laws; that she used to threaten her in- laws of false implication in dowry cases, etc.; that on 02.10.2007, without informing the family members, Rina Singh left for her parental house, where she consumed medicines for aborting her child and when she fell seriously ill, she was brought to Agra on 03.10.2007 by her brother, father and mother and there she aborted her child in the Nursing Home of Dr. Malhotra, despite all that, Rina was kept by her mother-in-law with great care; that, thereafter, on 15.11.2008, Rina's father ( Mitthan Lal- applicant no.1), uncle ( Rameshwar-non applicant), elder brother ( Mukesh-applicant no.3) came to complainant's house and invited the complainant for Neetu's ( Rina's uncle's daughter) marriage to be held on 29.11.2008 and took Rina along with them; that when they came to take Rina, they told the complainant that as in the marriage various reputed persons would come, therefore, to maintain status, Rina may be made to wear all the ancestral jewellery, which would be returned along with Rina; that the complainant, on the insistence of Rina's father ( applicant no.1), gave the jewellery, which was given as "Chadhawa" at the time of son's marriage, along with ancestral jewellery of his wife, to Rina Singh and gave her a send off ( "Bida") for her parental home; that on 29.11.2008, when the complainant and his son went to attend the marriage at Rina's parental home, then Rina was not permitted to leave her parental house and the father of Rina assured the complainant that she will be sent back later, along with jewellery; that when, on 15.01.2009, the son of the complainant had gone to fetch Rina from her parents house, the father of Rina refused to send Rina and also refused to return the jewellery; that for settlement, on 25.01.2011, a panchayat was called at T.R. UTSAV BHAWAN, which was attended by several reputed persons including Kedar Bhargava, Deepak Khatri, Dr. Narendra and other relatives in which Rina ( applicant no.7), her father ( applicant no.1), mother ( Laxmi Bai - applicant no.2), brother ( Mukesh- applicant no.3), Mukesh's wife ( Shakun- applicant no.6) and other boys, namely, Vinod ( applicant no.4) and Surendra ( applicant no.5) along with five-six unknown armed persons attended the panchayat; that in the panchayat, the father of Rina Singh refused to send back Rina and return the ancestral jewellery and taking the aid of the armed guards, extended threat of life and left the panchayat; that the complainant, through his counsel, served notices on the father of Rina for sending Rina along with ancestral jewellery but despite service of such notice, neither Rina nor the ancestral jewellery was returned. 4. 4. In support of the complaint, statement of Vijendra Singh ( the complainant) was recorded under Section 200 Cr.P.C. wherein he sought to support the complaint allegations. What is relevant in the statement of the complainant is that from his statement it becomes clear that the alleged jewellery including the jewellery given in "Chadhawa" at the time of marriage was given to Rina ( the daughter in law of the complainant) though, on the insistence of her father ( applicant no.1). Moreover, in the statement an effort is there to improve on the complaint allegations so as to implicate daughter in law's brother ( Vinod), mother ( Laxmi Devi), daughter in law ( Rina), and all who had come, of having extended threat while leaving the Panchayat. Further, statement of Deepak Khatri was recorded under Section 202 Cr.P.C. Deepak Khatri in his statement stated that on 25.01.2011, Panchayat was held and that in the Panchayat, Vijendra Singh ( the complainant) and his son ( Sanjay) requested the family members of Rina to send back Rina along with ancestral jewellery, on which the family members of Rina flatly refused and misbehaved and threatened that they would neither send back their daughter nor they would return the jewellery and if they make demand for the jewellery then they will be finished off. Similar is the statement of Anup Singh, another witness, who was recorded under section 202 Cr.P.C. 5. The learned Magistrate, on the basis of the complaint allegations and the statements recorded under Sections 200 and 202 Cr.P.C., passed the impugned summoning order. 6. The submission of the learned counsel for the applicants is that the complaint has been lodged as a counter-blast to the proceedings that have been drawn by Rina Singh ( applicant No.7) against the opposite party No.2, her husband and other family members. It has been submitted that in the year 2009, the applicant No.7 had lodged a first information report against the opposite party No.2, her husband ( the son of the opposite party No.2) and other family members, which has been registered as Case Crime No. 175 of 2009 at P.S. Nihalganj, Dhaulpur, Rajasthan, under Sections 498-A and 406 I.P.C and which is pending before the Additional Chief Judicial Magistrate, Dhaulpur, Rajasthan. It has been submitted that in addition to the aforesaid criminal case, a case under Section 12 of the Domestic Violence Act has been filed in the Court of Additional Chief Judicial Magistrate, Dhaulpur, Rajasthan, which is pending against the opposite party No.2 and his family members. It has further been submitted that the son of the opposite party No.2 has also filed a Divorce Petition No. 1088 of 2011 on 19.09.2011 in the Family Court, Agra, which is pending. It has, thus, been submitted that the Complaint Case No. 1212 of 2011 has been instituted with a mala fide intention for the purpose of coercing the applicants to compromise the case that have been lodged against the opposite party No.2 and his family members. In support of the aforesaid submission attention of the Court has been drawn to paragraphs 4 to 8 and 10 of the affidavit filed in support of the application. 7. In addition to above, the learned counsel for the applicants submitted that the offence punishable under Section 406 IPC is not made out, inasmuch as, admittedly the jewellery, etc. was handed over to the daughter-in-law but the daughter-in-law never gave any assurance to return the jewellery. It has been argued that admittedly part of the jewellery was given in "Chadhawa" at the time of marriage, accordingly, the jewellery became her Stridhan and as, at the time of handing over the jewellery to the daughter-in-law, no assurance was given by the daughter-in-law with regard to returning the jewellery, there can be no breach of trust on her part and further, as the jewellery was not handed over to her father, any amount of assurance by him for returning the jewellery, would not make out a case of criminal breach of trust as against him. It has been submitted that as per the complaint allegations, the assurance was given by the daughter-in-law's father for return of the jewellery but not by the daughter-in-law, who was entitled to the jewellery as the same was given to her at the time of marriage and assuming, though not admitting, that some jewellery other than the jewellery given at the time of marriage was given to the daughter-in-law, the same, as per the complaint allegations, were not handed over to the daughter-in-law by making her aware that the same was to be returned by her. It was thus submitted that an offence punishable under Section 406 I.P.C. is not disclosed as against Rina and since, admittedly, the jewellery was not handed over to Rina Singh's father ( Mitthan Lal), but was handed over to Rina, therefore, Rina's father namely, Mitthan Lal, cannot be held guilty of an offence punishable under section 406 IPC. It has also been submitted that even if the allegations of the complaint are taken to be correct, the offence punishable under Section 506 I.P.C., from the averments made in the complaint, is made out only against the father of Rina Singh and not against the entire family members, inasmuch as, in paragraph 10 of the complaint, it has been stated that Rina Singh's father had refused to return his daughter along with jewellery and had threatened the complainant by taking the aid of unknown armed persons, who were there in the panchayat. It was thus submitted that summoning of all the applicants under section 506 I.P.C. was also not legally justified. 8. The learned counsel for the opposite party No.2 has submitted that the complaint clearly discloses commission of offences for which the applicants have been summoned and as the allegations made in the complaint are supported by statements recorded under sections 200 and 202 Cr.P.C, the summoning order, cannot be faulted. 9. Having considered the rival submissions of the learned counsel for the parties and on perusal of the record, this Court finds that from the allegations made in paragraph 6 of the complaint as also from the statement of the complainant recorded under section 200 CrPC, ancestral jewellery of the complainant's wife was handed over to Rina Singh along with the jewellery that was given to Rina Singh at the time of her marriage as "Chadhawa". Neither in the complaint, nor in the statement recorded under section 200 CrPC, it is specifically averred that when the jewellery was handed over to Rina Singh, she was made aware that the jewellery that was being handed over to her was of her mother-in-law, which she had to return. What has been alleged is that Rina Singh's father had requested that jewellery may be handed over to his daughter for enhancing Rina's status and that on his request and assurance, jewellery was handed over to Rina. What has been alleged is that Rina Singh's father had requested that jewellery may be handed over to his daughter for enhancing Rina's status and that on his request and assurance, jewellery was handed over to Rina. Although in the statement recorded under section 200 CrPC it is stated that Rina Singh demanded for the jewellery, but it is not clearly specified as to whether she demanded for the jewellery which was given to her in "Chadhawa" or the jewellery of her mother in law. What is important is that there is no allegation that jewellery was handed over to Rina Singh's father as also that there was no assurance from the side of Rina Singh, to whom the jewellery was handed over, that she would return the jewellery. As per the complaint allegations, admittedly, the jewellery given to Rina Singh at the time of her marriage was also handed over to her, when she left. There is nothing to show in the complaint that when the entire jewellery was handed over to Rina Singh, she was apprised of the fact that what was being handed over to her was not her personal jewellery, but that of her mother-in-law, which she had to return. There is nothing to show that jewellery was handed over to Rina Singh on her assurance to return the same and likewise, there is nothing to show that Rina Singh had assured to return the jewellery on having knowledge that the jewellery that was being handed over to her did not belong to her but belonged to her mother-in-law. In this view of the matter, the offence punishable under Section 406 I.P.C. cannot be said to be made out from the complaint allegations. Moreover, it is well settled in law that jewellery given to a wife at the time of her marriage, even by her in laws, becomes her Stridhan ( vide paragraph 113, Mulla's Hindu Law, Seventeenth Edition). Likewise, as there was no entrustment of the jewellery to the father of Rina Singh, inasmuch as, admittedly, the jewellery was handed over to Rina Singh, it cannot be said that the father of Rina Singh was liable for an offence punishable under Section 406 I.P.C. Thus, the court below erred in summoning the applicant nos. 1 and 7 for an offence punishable under section 406 IPC. 10. 1 and 7 for an offence punishable under section 406 IPC. 10. So far as the offence punishable under Section 506 I.P.C. is concerned, in paragraph 10 of the complaint, the allegations are to the effect that in the Panchayat, the father of Rina Singh refused to send back Rina Singh and taking the aid of unknown armed persons, extended threat of life to the complainant and they all went away. In paragraph 10 of the complaint, it has not been averred that all the accused persons extended the threat. In fact, it has also not been specifically averred whether Rina's father extended the threat or the armed persons, not named in the complaint, did so. Although, in the statement recorded under section 200 CrPC, an effort has been made to rope in all the accused persons with regards to accusation of extension of threat, without specific allegation against anyone. Likewise, in the statement recorded under section 202 Cr.P.C., there is no specific allegation against anyone, but general allegation against all. Considering that three out of the four accused persons are ladies, and there are no specific allegations against any of the accused persons as also that the alleged incident happened in a Panchayat, allegedly, called by the complainant, the summoning of all the applicants, under section 506 IPC, requires reconsideration. 11. For the reasons mentioned above, the summoning order dated 30.09.2011 is set aside. The matter is remanded back to the learned Magistrate to pass a fresh order in accordance with the law and in the light of observations made herein above. The application stands allowed to the extent indicated above.