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2014 DIGILAW 228 (JHR)

Ashok Kumar v. State of Jharkhand

2014-02-11

H.C.MISHRA

body2014
JUDGMENT H.C. Mishra, J. Heard learned counsel for the petitioners and learned counsel for the State as also learned counsel for the complainant-opposite party No. 2. 2. The petitioners are aggrieved by the order dated 6.7.2011 passed by Sri Piyus Srivastava, learned Judicial Magistrate, Ranchi, in Complaint Case No. 1019 of 2007, whereby, the application filed by the petitioners under Section 245 of the Cr.P.C., for discharge, has been rejected by the Court below, finding that there are sufficient materials to frame charge against the petitioners for the offence under Section 404 of the Indian Penal Code. 3. The petitioners have been made accused in Complaint Case No. 1019 of 2007 filed by the widow of the brother of these petitioners. The brother of these petitioners was working in Indian Army and he was married to the complainant opposite party No. 2. It appears that there was some matrimonial dispute between the husband and the wife, due to which, she was living separately, and in the year 1989 she had filed a case claiming maintenance from her husband, which was allowed by the competent Court and she was getting the maintenance. However, according to the claim of the widow, i.e., complainant-opposite party No. 2, the difference between them had been patched up and at the time of the death of her husband, she was living with her husband in the matrimonial home. However, this fact is disputed by the petitioners and according to the petitioners case, the widow was living separately throughout and a matrimonial case for dissolution of the marriage by the decree of divorce had been filed by her late husband. 4. According to the case of the complainant, her husband was employed in Indian Army and he retired from service in the month of October 2006. Subsequently, he became ill and he was treated at Namkom Military Hospital, Ranchi, but his condition deteriorated and lastly, he was admitted at Nagarmal Modi Seva Sadan, Ranchi, where he expired on 8.11.2006. Thereafter her husband's brothers, i.e., the petitioners, started to conceal and grab the movable and immovable property of her husband. After the completion of the last rites of her husband, the complainant on 23.11.2006 tried to locate his belongings, such as, Military Box, Pension Book and other papers, but she could not get the same. Thereafter her husband's brothers, i.e., the petitioners, started to conceal and grab the movable and immovable property of her husband. After the completion of the last rites of her husband, the complainant on 23.11.2006 tried to locate his belongings, such as, Military Box, Pension Book and other papers, but she could not get the same. According to her case, not only the papers but her husband's gold ring, chain etc., were also missing and on protest, she was assaulted and ousted from her matrimonial house. The complainant took the help of the police and some of the belongings were handed over to her, but her husband's other belongings, including the papers relating to the house, in which they were living and the land purchased by her husband at Delhi, Share Certificates and other important documents were not handed over to her. With these allegations, the complaint petition was filed, claiming that the accused persons had committed the offence under Sections 379, 403, 404, 465 and 448 of the Indian Penal Code. 5. The statement of the complainant was recorded on solemn affirmation and she also examined four witnesses at the enquiry stage, on the basis of which, the Court below by order dated 27.3.2010, found the prima facie offence against the petitioners only under Section 404 of the Indian Penal Code, and ordered for issuance of summons against the petitioners. After appearance of the petitioners in the Court below, two witnesses were examined before charge, who are the complainant and her son. After examination of these witnesses, the petitioners filed an application under Section 245 of the Cr.P.C., stating that in the facts of this case, no offence was made out under Section 404 of the Indian Penal Code and as such they may be discharged, but the same was rejected by the Court below by the impugned order, holding that there are sufficient materials on record to frame the charge against the accused-petitioners for the offence under Section 404 of the Indian Penal Code. Aggrieved thereby, the petitioners have moved this Court in this revision application. 6. The petitioners have brought on record the statements of the complainant recorded on solemn affirmation and of the witnesses examined at the enquiry stage, as also the deposition of the witnesses recorded before charge. Aggrieved thereby, the petitioners have moved this Court in this revision application. 6. The petitioners have brought on record the statements of the complainant recorded on solemn affirmation and of the witnesses examined at the enquiry stage, as also the deposition of the witnesses recorded before charge. It appears from the statement of the complainant recorded on solemn affirmation that she had replied to the Court's question that she had filed the maintenance case against her husband in the year 1989 and she was getting the money. However, she and her witnesses have stated that at the time of his death, the difference had been patched up and she was living with her husband. Be that as it may, as the revisional Court, I shall not enter into this disputed question of fact. 7. Learned counsel for the petitioners has taken a short point and has submitted that admittedly, the petitioners are the brothers of the deceased husband of the complainant and at the time of his death, he was living with the petitioners. It is submitted by the learned counsel for the petitioners that in that view of the matter, it cannot be said that the petitioners dishonestly misappropriated or converted to their own use any property of the deceased and they were not legally entitled to possession of any of his belongings or property. It is submitted that accordingly, no offence can be said to be made out under Section 404 of the Indian Penal Code, even if for the arguments sake, the statements made in the complaint case are accepted in entirety. It is further submitted by the learned counsel for the petitioners that in the description of the property allegedly misappropriated by the petitioners, even immovable property, i.e., the house at Ranchi and the land at Delhi are included, and Section 404 of the Indian Penal Code cannot be made applicable to the immovable property. It is further submitted by the learned counsel for the petitioners that in the description of the property allegedly misappropriated by the petitioners, even immovable property, i.e., the house at Ranchi and the land at Delhi are included, and Section 404 of the Indian Penal Code cannot be made applicable to the immovable property. In this connection, learned counsel for the petitioners has placed reliance upon the decision of the then High Court of Madhya Bharat, in Dhulji vs. Kanchan, reported in AIR 1956 Madhya Bharat 49, wherein it has been held as follows :- "(9) ---------- The object behind Section 404 I.P.C. is to afford protection of property which by reason of its being peculiarly placed needs protection where the person who could look after it is dead and the person, who is expected and entitled to look after it after the death of the aforesaid person has not appeared on the scene. There is a chance available to strangers to dishonestly misappropriate and convert the same. Under these circumstances, if such strangers are allowed to do so the subsequent owner may lose that property entirely. In majority of cases there is no evidence as to what the property was and there is hardly any possibility of following the property which has passed into several hands or changed its form. All these possible risks ought to be checked. It is for this reason that a provision is made by which dishonest misappropriation or conversion under these circumstances is made specially punishable with a higher sentence. It is clear that in the case of immovable property no such risk is involved except where the immovable property is first demolished and converted into movable property and thereafter it is dishonestly misappropriated or converted. Where the immovable property stands intact no person can acquire title to it except in accordance with law. Mere delivery of possession by an unauthorized person cannot confer any title to the transferee and he can be deprived of possession any time." 8. This submission of the learned counsel for the petitioners, in my considered view, cannot be accepted. The Apex Court had an opportunity to consider this point and in R.K. Dalmia and Ors. vs. The Delhi Administration, reported in AIR 1962 SC 1821 , it has refused to restrict the word "property" used in Section 404 of the Indian Penal Code to movable property only. The Apex Court had an opportunity to consider this point and in R.K. Dalmia and Ors. vs. The Delhi Administration, reported in AIR 1962 SC 1821 , it has refused to restrict the word "property" used in Section 404 of the Indian Penal Code to movable property only. However, the question was left open by the Apex Court in the following terms:- "(49) In 6 Bom. HCR Cr. 33 it was held that reading Ss. 403 and 404 I.P.C. together, S. 404 applied only to movable property. No reasons are given in the judgment. (50) ---------- If the Legislature had intended to restrict the operation of S. 404 to movable property only, there was no reason why the general word was used without the qualifying word 'movable'. We therefore do not see any reason to restrict the word 'property' to 'movable property' only. We need not express any opinion whether immovable property could be the subject of the offence under S. 404 I.P.C." 9. Learned counsel for the petitioners has also placed reliance upon the decision of the Calcutta High Court in Harendra Nath Mandai vs. Bejoy Krishna Das, reported in 1949 Cr.L.J. 241, wherein it has been held as follows:- "(2) --------------- In order to find a person guilty under this section, the prosecution must prove not only misappropriation but dishonest misappropriation or dishonest conversion to his own use of property by the accused. Secondly, the prosecution must prove that the property was in the possession of a deceased person at the time of that person's decease and that it has not since been in the possession of any person legally entitled to such possession. Both these ingredients must be established or the charge must fail. *** *** *** (4) ------------------ A person may not have title to property in the sense of title to the ownership of the property, but yet he may be legally entitled to possession thereof." 10. In this connection, reliance has also been placed upon the decision of the Madras High Court in Karri Mangadu & Ors., reported in AIR 1915 Mad. In this connection, reliance has also been placed upon the decision of the Madras High Court in Karri Mangadu & Ors., reported in AIR 1915 Mad. 506(1), wherein it has been held as follows:- "As is shown by the illustration to S. 404, that section was intended to punish servants and strangers who could have possibly no right to or interest in the effects of a dead man and who misappropriated such effects, and was not intended to punish near relatives who take possession of and deal with the decease's effects under a claim of independent ownership, or a claim to succeed as heir to the deceased." (Emphasis supplied) Placing reliance on these decisions, learned counsel submitted that the petitioners, admittedly being the brothers of the deceased husband of the complainant, no offence can be said to be made out against them under Section 404 of the Indian Penal Code. 11. Learned counsel for the State as well as the learned counsel for the complainant-opposite party No. 2 have submitted that on the basis of complaint petition, the statements of the complainant and the witnesses recorded at the enquiry stage as also at the pre-charge stage, the offence is clearly made out against the petitioners, as the belongings and property of the deceased husband of the complainant have been dishonestly kept and misappropriated by these petitioners. 12. Learned counsel for the complainant has also placed reliance upon a decision of the Allahabad High Court in Raj Kumar vs. State of Uttar Pradesh, reported in 2003 Cr.L.J. 1073, wherein where, the son was charged for the murder of his mother and taking off the jewellery from her person, his conviction under Section 404 of the IPC also, was upheld. Reliance has also been placed upon the decision of the Apex Court in Nemichand Jain vs. Roshanlal & Ors., reported in (2004)13 SCC 461 , in the facts of the case, the High Court, in a revision petition had altered the charge from Sections 304-B and 498-A of the I.P.C., to Section 306 of the I.P.C., it was held that the High Court should not have considered the whole evidence to come to the conclusion that there were no materials for framing the charge under Sections 304-B and 498-A of the I.P.C. 13. Learned counsel for the complainant opposite party No. 2 has also submitted that the offence is not only made out under Section 404 of the Indian Penal Code, rather the other offences for which the complaint was filed, are also made out against the petitioners. This submission of the learned counsel has been replied by the learned counsel for the petitioners, submitting that the prima facie offence was found against the petitioners only under Section 404 of the Indian Penal Code, by the Court below by order dated 27.3.2010 which has never been challenged by the complainant-opposite party No. 2. 14. After having heard the learned counsels for both the parties and upon going through the record, I find force in the submission of the learned counsel for the petitioners. Admittedly, the petitioners are the brothers of the deceased husband of the complainant and admittedly the deceased was living with his parents and the brothers after his retirement from Army service and at the time of his death. According to the complainant's case, she was also living with the deceased, but this fact is disputed and it is not going to make any difference in the case and hence, it is immaterial to enter into this fact, and I am confining this order only to the question of law without entering into any disputed question of fact. The Court below on the basis of materials on record has found the prima facie offence against the petitioners only under Section 404 of the Indian Penal Code. No prima facie case has been found against the petitioners for any other offence and the said order was never challenged by the complainant. 15. Section 404 of the Indian Penal Code reads as follows:- “404. Dishonest misappropriation of property possessed by deceased person at the time of his death.-Whoever dishonestly misappropriates or converts to his own use property, knowing that such property was in the possession of a deceased person at the time of that person's decease, and has not since been in the possession of any person legally entitled to such possession, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and if the offender at the time of such person's decease was employed by him as a clerk or servant, the imprisonment may extend to seven years. Illustration: Z dies in possession of furniture and money. His servant A, before the money comes into the possession of any person entitled to such possession, dishonestly misappropriates it. A has committed the offence defined in this section." 16. Thus, from the plain reading of this section, it is apparent that the offence can be made out only when there is dishonest misappropriation or conversion of the property of the deceased person which the person deceased was possessing at the time of his death. Yet again, the offence can be made out only when the said property was not in possession of any person, legally entitled to such possession at the time of death of the deceased. 17. In the present case, the petitioners being the own brothers of the deceased and the deceased living jointly with them, it cannot be said that the property left by the deceased was not in the possession of these petitioners also, or that these petitioners were not legally entitled to such possession. I find myself in agreement with the law laid down by the Calcutta High Court in Harendra Nath Mandal's case (supra), that a person may not have title to the property in the sense of the title to the ownership of the property, but yet he may be legally entitled to the possession thereof. If the person is either entitled to the possession of the property of the deceased, or at the time of the deceased he was also possessing the property alongwith the deceased, being his close relative, no offence can be said to be made out against such person under Section 404 of the Indian Penal Code. 18. I am of the considered view that even if the complainant's case is accepted in its entirety, no offence under Section 404 of the Indian Penal Code can be said to be made out against the petitioners, being the own brothers of the deceased, as admittedly the deceased was living jointly with them at the time of his death. As such, the petitioners were also legally possessing the property alongwith the deceased, being his own brothers and no offence can be said to be made out against them under Section 404 of the Indian Penal Code. As such, the petitioners were also legally possessing the property alongwith the deceased, being his own brothers and no offence can be said to be made out against them under Section 404 of the Indian Penal Code. Thus, compelling the petitioners to face the trial shall be sheer misuse of the process of Court, and accordingly, the impugned order cannot be sustained in the eyes of law. 19. For the foregoing reasons, the order dated 27.3.2010 as also the impugned order dated 6.7.2011 passed by Sri P. Srivastava, learned Judicial Magistrate, Ranchi, in Complaint Case No. 1019 of 2007, are hereby, set aside and the petitioners stand discharged. This application is, accordingly, allowed.