Gauhati High Court
Anwar Ali vs Mozibul Hoque on 27 August, 2004
Equivalent citations: (2005)1GLR127
Author: I.A. Ansari
Bench: I.A. Ansari
JUDGMENT I.A. Ansari, J.
1. The deceased, Darjina Begum, was the wife of the accused-petitioner, Anwar Ali. Following the death of his daughter, Darjina Begum, her father, namely, Md. Mozibul Hoque, lodged an FIR at Paltan Bazar Police Station alleging, inter alia, that the said deceased was subjected to cruelty on her failure and, On the failure of her parents to meet demands of dowry raised from the end of the accused-petitioner and died under suspicious circumstances. Based on this FIR, All Women P.S. Case No. 13/2001, Under Section 304(B)/34 IPC, was registered. Thereafter, the said Md. Mozibul Hoque i.e. the opposite party herein, lodged a complaint in the Court of the learned Chief Judicial Magistrate, Kamrup, which gave rise to Complaint Case No. 2172/2001, wherein, while repeating his allegations that his daughter, namely, Darjina Begaum, had been subjected to cruelty on account of her inability to meet the demands for dowry raised by the accused-petitioner, the complainant-opposite party further alleged that he had gone to the house of the accused-petitioner to bring back the ornaments, various other valuables and money, in cash, which he had given, on the occasion of the marriage, to his said daughter, Darjina Begum, but instead of returning the same, the accused-petitioner had abused the complainant-opposite party, and drove him out of the house and threatened him with dire consequences.
2. After examining the complaint and the witnesses, the learned Judicial Magistrate, first Class, Kamrup, Guwahati, took cognizance of offences Under Sections 403/406/506 IPC against the accused-petitioner and accordingly directed issuance of summons to him vide its Order, dated 08.10.2001. The learned Court below also directed issuance of search warrant for search of the house of the accused-petitioner and seizure of the articles, a list of which had been annexed with the complaint petition by the complainant-opposite party.
3. In course of time, the search warrant was executed and some of the articles were seized. When the case reached the stage for recording of evidence before charge, the accused-petitioner came up with this revision petition seeking quashing of the complaint aforementioned.
4. I have heard Mr. S.K. Sharma, learned counsel for the accused-petitioner. Since none has appeared, on behalf of the complainant-opposite party, this Court appointed Dr. B. Ahmed as Amicus Curie and he has been accordingly heard.
5. By this revision petition, the maintainability of the complaint has been challenged by the accused-petitioner. While considering this revision, it is of utmost importance to note that the parties concerned are governed by Mohammedan Law. Though Mohammedan law provides for both forms of gifts, namely, oral as well as written, it lays down four conditions for making a gift valid, the conditions being (i) declaration of gift by the donor, (ii) relinquishment by donor of ownership of, and dominion over, the gift, (iii) acceptance of the gift by the donee and (iv) delivery of possession of the property by donor. The relinquishment of control and ownership by the donor is necessary to complete the gift (see Most. Bibi v. Sheikh Wahid, reported in ILR (1928) 7 Part 118, and Bibi Riajan Khatoon and Ors. v. Sadrul Alam and Ors. reported, in AIR 1996 PATNA 156).
6. A donor, in Mohammedan Law, can revoke a gift before he relinquishes his control and dominion over the property, in question. In other words, until the time the donor has relinquished his control and dominion over the property, and before the donee takes possession of the property gifted, the donor can cancel the gift, the reason being that before delivery of possession, there is no gift Under Mohammedan Law.
7. In short, relinquishment of gift Under Mohammedan Law is possible as long as donor has not relinquished his control and domain over the property; but once the donor relinquishes his control and domain over the property gifted, the donor retains no power to revoke his gift.
8. In the case at hand, it is the case of the complainant that he had given the properties, in question, by way of gift to his daughter, Darjina Begum, at the time of her wedding and she carried the same to her matrimonial home. Having so gifted the properties aforementioned, the complainant-opposite party, as the donor, had lost his control and domain over the said properties and, hence, the gift was complete and irrevocable making his daughter, Darjina Begum (since deceased) as the absolute owner thereof.
9. In the present case, the complainant-opposite party having lost his control and domain over the properties gifted to his daughter, the question of his entrusting the accused-petitioner with the properties aforementioned did not arise at all. There is also no allegation, in the complaint, that the properties, in question, were entrusted to the accused-petitioner by the said deceased or any specific instructions, in this regard, were left by the said deceased with the accused-petitioner or with the complaint. This apart, the accused-petitioner, as the husband, had a share in the properties of the said deceased and the complainant-opposite party cannot claim absolute right thereto. In such a situation, no offence Under Sections 403 and /or 406 IPC can be said to have been committed by the accused-petitioner by his mere denial to part with the properties, particularly, when there is no allegation that the accused-petitioner has misappropriated the same and/or attempted to misappropriate and/or converted or attempted to convert the same to his own use and/or disposed of or attempted to dispose of the same contrary to any instructions given by the deceased Darjina Begum, who was, according to the complainant, the owner thereof.
10. In the circumstances as indicated hereinabove, even if the complainant-opposite party had gone to the house of the accused-petitioner and demanded return of the properties, which were allegedly gifted by him to his said daughter, the accused-petitioner was within his rights, given Under the law, to oust the complainant-opposite party from his house. In such a situation, the accused-petitioner cannot be said to have committed an offence Under Section 506 IPC, for, the complainant-opposite party had no right to go to the house of the accused-petitioner and demand the return of the entire properties, when the complainant-opposite party had not remained owner thereof and/or does not have absolute right to succeed to the same.
11. What emerges from the above discussion is that the contents of the complaint, in question, did not, when read as a whole, disclose commission of any offence Under Sections 403/406/506 IPC; hence, taking of the cognizance of the offence aforementioned against the accused-petitioner and/or issuance of the search warrant for recovery of the said articles were without jurisdiction. Initiation of such a proceeding shall, if allowed to stand good on record, cause serious miscarriage of justice.
12. In the result and for the reasons discussed above, this revision succeeds. The Complaint Case No. 2172/2001 aforementioned and its proceedings, as a whole, shall accordingly set aside and quashed.
13. With the above observations, and directions, this Criminal Revision shall stand disposed of.
14. Send back forthwith the LCRs to the learned Court below with a copy of this judgment and order.