Allahabad High Court
Mukesh And 3 Others vs State Of U.P. And Another on 29 August, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:138802 Court No. - 74 Case :- APPLICATION U/S 482 No. - 13042 of 2024 Applicant :- Mukesh And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pramod Kumar Dwivedi Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Mrityunjay Dwivedi, Advocate holding brief of Sri Pramod Kumar Dwivedi, learned counsel for applicants and perused the record.
2. In the present case, Applicant No. 1 is husband of Opposite Party No. 2, i.e., complainant and other applicants are close relatives of Applicant No. 1. Applicants have been summoned by means of impugned order dated 23.03.2023 passed under Section 204 Cr.P.C. to face trial under Sections 406, 504, 506 IPC.
3. It is the case of complainant that she got marriage with Applicant No. 1 on 02.07.2017 and she suffered various atrocities in her matrimonial life. Lastly on 25.02.2019 she was left alone and later on despite request to return her stridhan, the same was not returned back by applicants.
4. Learned counsel for applicants submits that complainant has lodged a FIR on 11.05.2019 against present applicants for offences under Sections 498A, 323, 504, 506 IPC and 3/4 Dowry Prohibition Act. In aforesaid FIR after investigation, a charge sheet has been filed. Learned counsel further submits that present complaint was filed by complainant on 21.05.2019, i.e., subsequent to above referred FIR, however the fact of lodging earlier FIR was not disclosed in complaint. He also submits that from the averments made in complaint as well as in statement recorded under Section 200 Cr.P.C. basic ingredients of offence under Section 406 IPC may not be made out since there is no specific entrustment on any of the applicants. However, he fairly submits that in the statements of witnesses recorded under Section 202 Cr.P.C. there is a reference that stridhan was demanded back.
5. In aforesaid circumstances, learned counsel submits that present proceedings are abuse of process of law and rather has only initiated to fill up the lacuna left in FIR as well as to engage applicants in multiple criminal proceedings. Learned counsel also submits that in the charge sheet filed against applicants, they have already appeared before Trial Court concerned and are granted bail and trial has commenced wherein they are appearing regularly.
6. In order to appreciate the above submissions, I have carefully perused impugned summoning order as well as statements recorded under Sections 200 and 202 Cr.P.C. For reference statement of complainant recorded under Section 200 Cr.P.C. as well as impugned summoning order dated 23.03.2023 are reproduced hereinafter:
Statement recorded U/s 200 Cr.P.C.
"???- ???? ????- 26 ????? ????? ?????? ????? ?????? ????- ????? ?? ???? ???? ???? ??-
???? ???? ?????? 02.07.17 ?? ????? ?? ??? ??? ??? ???? ???? ??? ??? 8.50 ??? ????? ???? ???? ??? ???? ??? ????- ???? ?????, ???- ????, ??? ???? ? ???? ????? ???? ? ????? ?? ???? ???? ???, ?????, ???? ??????, ??? ???, ????? ????, ????? ? ???? ?? ????? 6 ?????? ???? ??, 1 ????? ???? ? ?????, ????? ???? ??? ?? ???? ??? ???? ?? 5 ??? ????? ?????? ??? ?? ??? ????????? ????? ??????? ???? ?? ??? ?????? ?? ?? ???? ???? ?? ???? ???? ??? ???? ?????? 25.02.2019 ?? ?????? ?????? ???? ??? ????? ???? ??? ?????, ?????? ???? ?? ????? ?????? ???? ???? ? ?????? ?? ????? ?? ???? ???? ???"
Impugned order dated 23.03.2023 "???????? ???????? ??? ???? ??????? ?? ??????? ???????? ?? ???? ?? ?????? ?? ????? ???? ?? ???? ????
??????? ??? ??????? ?? ??? ?? ?????? ?? ?? ?????????? ??????? ???? ?? ???? ????? ?? ??? ?????? 02.07.2017 ?? ?????? ???? ????? ?? ??????? ??? ??? ???? ??? ???? ???? ?? ???? ???, ??????, ????? ?? ????, ?????? ????, ?????, ????? ?????????? ??? ????? ? 1,51,000/- ????? ??? ??? ????? ???? ?? ???? ?????? ?? ???? ????? ???? ???????? 21 ????? ? 21 ????? ???? ??? ???????? ??? ?? ?????? ???? ??, ????? ?? ???? ?? ????? ???? ?? ????? ??? ????? ?? ???? ???? ?? ? ??? ??? ????? ???? ??? ???? ??? ??? ???? ??? ??? ?????? 8,50,000/- ????? ????? ???? ??? ???? ?? ??? ?? ?? ???? ?????????? ??? ????, ??? ?????, ???? ?????????, ??? ???? ? ???? ?? ???? ?? ??? ???? ?? ?? ????? ???? ?? ?? ???? ??? ?? ???? ???? ???? ???? ????? ?? ??? ??? ?? ??????? ????? ???? ?? ?????? ?? ??? ??? ????? ?? ? ??? ??? ??? ????, ??? ????? ???? ?? ??? ?? ?? ???????? ???? ?? ??? ??? ???? ??? ????? ?? ???? ?? ????????? ???? ???? ??? ????? ????????? ?? ???????? ???? ??? ?? ?? ???? ????????? ?????? ????? ????? ??? ????? ???? ??? ? ??? ?? ??? ?? ???? ???? ?? ??? ?? ???? ???? ???? ?? ?? ???? ???????? ???? ?? ???? ?? ???? ?? ???? ?? ??? ?? ????? ???? ????? ???? ??? ???? ???? ?? ?? ???? ?? ???? ?? ?????? ???? ??? ?? ?? ???? ???? ???? ??? ????? ???? ???? ?? ??? ?? ??? ???? ?? ????? ?? ?? ???? ??? ?? ??? ???? ??? ???? ?? ?? ????? ?? ?? ???? ???? ? ???? ????? ?? ?????????? ?? ?????? ????? ??? ??? ??? ????? ??? ?????? ? ??????? ????????? ???? ???? ?????? 25.02.2019 ?? ????? ??? ?????? ?? ????? ?? ???? ?????? ?? ?????? ?????? ???? ?? ?????? ?????? ?????? ????? ??? ??? ??? ???? 7 ??? ??? ?? ??? ????? ?????? ??? ????? ???? ????? ???? ?? ???? ??? ?????? ???? ??? ????? ?? ??? ?? ???? ??? ????? ???? ??? ???? ??? ?? ??? ?????? ???? ???? ?? ????? ??????? ??????? ?? ??? ???? ???? ???????? ???? ????? ??? ?? ???? ?? ??? ???? ???????? ?? ????? ???? ?? ???? ?? ????? ???? ???? ?? ????? ?? ???? ??? ???? ??? ?????? ?? ????? ?? ???? ????? ??? ?????? ?????? ?? ??? ???? ??? ??????? ?????????? ?? ??? ?? ?????? ???? ?? ???? ?????
??????? ?? ???? 200 ?????????? ?? ???????? ???? ???? ????? ????? ?? ??? ???? 202 ?? ???????? ?????????-1 ????????? ? ?????????-2 ????????? ???? ?? ???????? ????? ?? ??? ????????? ??????? ?? ??? ??? ?????? ????? ??????? ????? ?? ???? ??? ????????? ???? ?? ????? ????? ?? ??? ???
??????? ?????? ???? 200 ?????????? ?? ???????? ???? ??? ????? ?? ?? "???? ???? ?????? 02.07.2017 ?? ????? ?? ??? ??? ??? ???? ???? ??? ??? 8,50,000/-????? ???? ??? ??? ???? ???, ???? ???? ?????, ??? ????, ???? ???? ? ????, ????? ???? ? ????? ?? ???? ???? ???, ?????, ??????????, ??? ???, ????? ????, ????? ? ???? ?? ?????, ?? ?????? ???? ??, ?? ????? ???? ? ?????, ???? ???? ??? ?? ???? ??? ???? ?? 5 ??? ????? ?????? ??? ?? ??? ????????? ????? ??????? ???? ?? ???? ?????? ?? ?? ???? ???? ?? ???? ???? ??? ???? ?????? 25.02.2019 ?? ?????? ?????? ??? ????" ???? 202 ?????????? ?? ???????? ???????? ?????? ????????-1 ????????? ? ?????????-2 ????????? ???? ?? ????-???? ????? ??? ??????? ?? ?????? ?? ?????? ???? ???
???????? ?? ?????? ????? ? ????????? ??????? ?? ?????? ?? ????? ??????? ?? ?????? ?? ?? ????????? ?????? ????????? ?? ????? ???????? ???? ??? ??? ???? ? ???? ?????? ?? ???? ??? ???? ???? ???? ? ??? ?? ????? ?? ???? ???? ???? ?? ??? ???? ??? ??? ?? ???? ?? ????? ??????? ????????? ?????, ??????? ????, ???? ? ???? ?? ??????? ???? 406, 504, 506 ???????? ?? ???????? ?????? ???? ???? ???? ???? ?? ???????? ???? ?? ??? ?????? ??????? ?? ???? ??????? ?? ???? ???? ???? ?? ?????? ???? ???? ???? ???? ?? ????? ??????? ????? ???? ??? ?????? ???? ???? ???
????
?????????? ?????, ??????? ????, ???? ? ???? ?? ???? 406, 504, 506 ???????? ?? ????? ?? ?????? ???? ??? ??? ???? ???? ??? ??????? ?????? ????? ????? ??? ??? ????? ?????????? ?? ??????? ??? ?????? 07.04.2023 ?? ???? ???? ???"
7. I have also carefully perused contents of FIR as well as complaint and find that though complaint was filed subsequent to lodging of FIR however said fact was not disclosed. I have also perused contents of statement of complainant recorded under Section 200 Cr.P.C. that allegation with regard to entrustment is vague and not specific to any of the applicants as well as there was no request or demand to return the said stridhan.
8. In aforesaid circumstances, I am of the considered opinion that not only complainant has not approached Trial Court concerned with clean hands but ingredients of Section 406 IPC are not made out against applicants and I find merit in the argument of learned counsel for applicants that present proceedings are initiated only to engage applicants in multiple criminal proceedings. In this regard Court also takes note of a judgment passed by Supreme Court in Vijay Kumar Ghai and others vs. State of West Bengal and others, (2022) 7 SCC 124 wherein the ingredients for criminal breach of trust were discussed and relevant paragraphs thereof are mentioned hereinafter:
"27. Section 405 of IPC defines "Criminal Breach of Trust" which reads as under:-
"405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
The essential ingredients of the offence of criminal breach of trust are:-
(1) The accused must be entrusted with the property or with dominion over it, (2) The person so entrusted must use that property, or;
(3) The accused must dishonestly use or dispose of that property or wilfully suffer any other person to do so in violation,
(a) of any direction of law prescribing the mode in which such trust is to be discharged, or;
(b) of any legal contract made touching the discharge of such trust.
28. "Entrustment" of property under Section 405 of the Indian Penal Code, 1860 is pivotal to constitute an offence under this. The words used are, ''in any manner entrusted with property'. So, it extends to entrustments of all kinds whether to clerks, servants, business partners or other persons, provided they are holding a position of ''trust'. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code.
29. The definition in the section does not restrict the property to movables or immoveable alone. This Court in R K Dalmia vs Delhi Administration, (1963) 1 SCR 253 held that the word ''property' is used in the Code in a much wider sense than the expression ''moveable property'. There is no good reason to restrict the meaning of the word ''property' to moveable property only when it is used without any qualification in Section 405.
30. In Sudhir Shantilal Mehta Vs. CBI, (2009) 8 SCC 1 it was observed that the act of criminal breach of trust would, Interalia mean using or disposing of the property by a person who is entrusted with or has otherwise dominion thereover. Such an act must not only be done dishonestly but also in violation of any direction of law or any contract express or implied relating to carrying out the trust.?
9. So far as offences under Sections 504 and 506 I.P.C. are concerned, Court is further of the opinion that on basis of complaint and statements ingredients of Sections 504, 506 IPC are also not made out since neither there is any allegation of alarm nor nature of threat was to the extent that it may provoke complainant to breach peace. Here, it would be relevant to mention few paragraphs of Mohammad Wajid and Another Vs. State of U.P. And Others, 2023 SCC OnLine SC 951 as under:
?23. Chapter XXII of the IPC relates to Criminal Intimidation, Insult and Annoyance. Section 503 reads thus:-
?Section 503. Criminal intimidation. ?Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
Explanation.?A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.
Illustration A, for the purpose of inducing B to resist from prosecuting a civil suit, threatens to burn B's house. A is guilty of criminal intimidation.?
Section 504 reads thus:-
?Section 504. Intentional insult with intent to provoke breach of the peace.?Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.?
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24. An offence under Section 503 has following essentials:-
1) Threatening a person with any injury;
(i) to his person, reputation or property; or
(ii) to the person, or reputation of any one in whom that person is interested.
2) The threat must be with intent;
(i) to cause alarm to that person; or
(ii) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat; or
(iii) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat.
25. Section 504 of the IPC contemplates intentionally insulting a person and thereby provoking such person insulted to breach the peace or intentionally insulting a person knowing it to be likely that the person insulted may be provoked so as to cause a breach of the public peace or to commit any other offence. Mere abuse may not come within the purview of the section. But, the words of abuse in a particular case might amount to an intentional insult provoking the person insulted to commit a breach of the public peace or to commit any other offence. If abusive language is used intentionally and is of such a nature as would in the ordinary course of events lead the person insulted to break the peace or to commit an offence under the law, the case is not taken away from the purview of the Section merely because the insulted person did not actually break the peace or commit any offence having exercised self control or having been subjected to abject terror by the offender. In judging whether particular abusive language is attracted by Section 504, IPC, the court has to find out what, in the ordinary circumstances, would be the effect of the abusive language used and not what the complainant actually did as a result of his peculiar idiosyncrasy or cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace and not the particular conduct or temperament of the complainant.
26. Mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504, IPC if it does not have the necessary element of being likely to incite the person insulted to commit a breach of the peace of an offence and the other element of the accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace. Each case of abusive language shall have to be decided in the light of the facts and circumstances of that case and there cannot be a general proposition that no one commits an offence under Section 504, IPC if he merely uses abusive language against the complainant. In King Emperor v. Chunnibhai Dayabhai, (1902) 4 Bom LR 78, a Division Bench of the Bombay High Court pointed out that:-
?To constitute an offence under Section 504, I.P.C. it is sufficient if the insult is of a kind calculated to cause the other party to lose his temper and say or do something violent. Public peace can be broken by angry words as well as deeds.
27. A bare perusal of Section 506 of the IPC makes it clear that a part of it relates to criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause alarm to the complainant.
28. In the facts and circumstances of the case and more particularly, considering the nature of the allegations levelled in the FIR, a prima facie case to constitute the offence punishable under Section 506 of the IPC may probably could be said to have been disclosed but not under Section 504 of the IPC. The allegations with respect to the offence punishable under Section 504 of the IPC can also be looked at from a different perspective. In the FIR, all that the first informant has stated is that abusive language was used by the accused persons. What exactly was uttered in the form of abuses is not stated in the FIR. One of the essential elements, as discussed above, constituting an offence under Section 504 of the IPC is that there should have been an act or conduct amounting to intentional insult. Where that act is the use of the abusive words, it is necessary to know what those words were in order to decide whether the use of those words amounted to intentional insult. In the absence of these words, it is not possible to decide whether the ingredient of intentional insult is present.?
10. In aforesaid circumstances, I am of the considered opinion that impugned order does not survive since it has suffered with legal infirmities.
11. In view of above, application is partly allowed. Impugned summoning order dated 23.03.2023 passed by Judicial Magistrate, Court No. 10, Mathura in Complaint Case No. 12338 of 2020 (Smt. Reena vs. Mukesh and others), under Sections 406, 504, 506 IPC, Police Station Baldev, District Mathura, is hereby set aside.
12. Since this order is passed without issuing notice to Opposite Party No. 2, i.e., complainant, therefore, matter is remitted back to Trial Court concerned to pass fresh order in accordance with law after taking note of above referred judgments as well as observations made in the present case and after hearing complainant expeditiously, preferably within a period of three months from today, if there is no legal impediment.
13. Registrar (Compliance) to take steps.
Order Date :- 29.8.2024 AK