Indian Kanoon - Search engine for Indian Law

1. Since both the applications arise out of the same proceedings, they are being decided by this common order.

2. Heard Sri Piyush Dubey, learned counsel for the applicants, Smt. Pooja Saxena, opposite party no.2 appearing in person as well as Sri L.D. Rajbhar, learned A.G.A. for the State and perused the record.

3. The present applications under Section 482 Cr.P.C. have been moved seeking quashing of the proceeding of Complaint Case No. 203 of 2017 (Smt. Pooja Saxena vs Vivek Mathur and others), under Section 406 I.P.C., Police Station- Hari Parwat, District- Agra, pending in the court of Additional Chief Judicial Magistrate, Court No.5 as well as summoning order dated 03.07.2017 whereby applicants have been summoned to face trial under Section 406 I.P.C.

5. It is alleged that opposite party no.2, wife of applicant Vivek Mathur, has filed a complaint case against the applicants on 19.01.2017 in which statements of the complainant and witnesses Madhubala, mother of the complainant, and Sunil Kumar Jain were recorded under Section 200 & 202 Cr.P.C. and the applicants were summoned to face trial for offence punishable under Section 406 I.P.C. vide order dated 03.07.2017 passed by learned Additional Chief Judicial Magistrate, Court No.5, Agra. The opposite party no.2 herself does not want to live with her husband and left her matrimonial house on her own sweet will. The opposite party no.2 with malafide intention and to harass the applicants has launched series of litigation against the applicants. A list of the cases lodged by opposite party no.2 has been annexed as Annexure No.4 to the affidavit. The applicants have not committed any offence. The complaint has been filed in gross abuse of process of law. Therefore, the summoning order as well as the proceeding of the aforesaid complaint case is liable to be quashed.

10. From the above statement, it is crystal clear that there are specific allegations to whom entrustment was made. It is further stated that summoning order dated 03.07.2017 passed by Additional Chief Judicial Magistrate, Court No.5, Agra is just and proper and there is no illegality.

11. The initial limb of the arguments advanced in this case is that according to the case of the complainant herself, her matter is hopelessely time barred but learned lower court did not look into this aspect of the matter. Perusal of the complaint shows that the ''Stridhan' of the complainant was given to the applicants some time in January, 2003, although the specific date has not been mentioned. The learned Magistrate failed to take into consideration the provisions of Section 468 of Cr.P.C. The ingredients of Section 406 I.P.C. have not been set forth as specific date of entrustment and the specific date of demand have also not been mentioned, hence, the order is bad in the eye of law. Counsel for the applicants has placed reliance upon Taule Ram and others vs. State of U.P. and another [reported in 2014 0 Supreme(All) 1194], wherein it has been held that the complaint shows that ''Stridhan' was given to the applicants some times in March, 2008, although the specific date has not been mentioned. The learned Magistrate has failed to take into consideration the provisions of Section 468 Cr.P.C. He has also placed reliance upon Nagendra Kumar and others vs. State of U.P. and another, 2008 Cr LJ 2321, in which it has been held that there should be specific allegations but vague allegations should not be given weightage too. Reliance has also been placed upon Ashok Kumar Buxi and another vs. State of U.P. and another [reported in 2006 0 Supreme(All) 2999: 2006 (10) ADJ 498] wherein this Court has held that "the other aspect is that the complaint seems to be barred, prima facie, by Limitation. Marriage of the complainant-opposite party took place at Udaipur. She alleges that she was turned out of the house by accused on 13.04.1996. The Limitation for filing the complaint under Section 406 Indian Penal Code is 3 years from the date of entrustment as provided in Section 468 (2) (c) Cr.P.C. The complaint, therefore, be deemed to have been filed beyond Limitation and becomes un-maintainable on this ground." It is submitted that from the complaint it is not clear to whom the entrustment of ''Stridhan' was made. The marriage took place in January, 2003. No clear date of entrustment was alleged in the complaint and the complaint is filed in the year 2017, therefore, the complaint is barred by Section 468 (2) (c) of Cr.P.C. It is further submitted that in the rejoinder affidavit it has been specifically narrated that all the ornaments were taken by opposite party no.2 just after one week of marriage on the pretext to show them to her relatives, and thereafter, the same were not returned to the applicants. In above circumstances, opposite party no.2 has filed the complaint in abuse of process of law to harrass the applicants who are husband, father-in-law and mother-in-law. It is also submitted that opposite party no.2 does not want to live with the applicants and left the matrimonial house out of her own sweet will. The proceedings as well as summoning order of the aforesaid complaint case which is filed with malafide intention on the basis of bogus allegations are liable to be quashed and he has relied on the law laid down by Hon'ble Apex Court in State of Haryana and others vs. Ch. Bhajan Lal and others, 1992 AIR 604, 1990 SCR Supl. (3) 259.

12. Learned A.G.A. and opposite party no.2 appearing in person have supported the order of summoning of the accused-applicants passed by learned Additional Chief Judicial Magistrate, Court No. 5, Agra and have submitted that the summoning order was passed after perusal of the complaint and statements complainant as well as witnesses wherein it finds mention as to when the ornaments and other articles were handed over to the father and mother of applicant Vivek Mathur, husband of opposite party no.2. It is further submitted how and when the ornaments and other articles were entrusted to the applicants has been stated by the witnesses in their statements under Section 200 and 202 Cr.P.C. It is further submitted that it is normally seen that the ''Stridhan' of a married women remains in the entrustment of the husband or family members and on demand of ''Stridhan' by the women if the same is not returned it amounts the offence under 406 I.P.C. from the date of non-compliance of her demand from her husband and family members of in-laws house. The entrustment of ''Stridhan' to the members of in-laws family does not amount any offence and it become offence on the date when the same was not returned to the women on her demand. Therefore, the submission of the counsel of applicants that the limitation of the offence starts from the date of entrustment is misconceived. It is further submitted that the case was cited by learned counsel for the applicants in Taule Ram and others (supra) and Ashok Kumar Buxi and another (supra) is not applicable in this case because the facts of those cases are different from the facts of present case as no more specific date for entrustment and date of demand for return have been mentioned in those cases. It is further submitted that so far as the submission of learned counsel for the applicants that ornaments were taken by opposite party no.2 just after one week of the marriage on the pretext to show them to her relatives, and thereafter, the same were not returned to the applicants, is concerned requires an appreciation of evidence which cannot be done at the stage under the proceedings under Section 482 Cr.P.C. It is further submitted that on perusal of allegations made in the complaint as well as in the statements under Section 200 & 202 Cr.P.C., prima facie, commission of offence under Section 406 I.P.C. is disclosed against the applicants that cannot be quashed in proceeding under Section 482 Cr.P.C. in view of the law laid down by Hon'ble Apex Court in State of Haryana vs. Ch. Bhajan Lal (supra). It is further submitted that in view of the law laid down by Hon'ble Apex Court in R.P. Kapur vs. State of Punjab, A.I.R. 1960 S.C. 866, the appreciation of evidence cannot be done at this stage under the proceeding of Section 482 Cr.P.C. Hon'ble Supreme Court has summarized some categories of cases where the inherent jurisdiction can and should be exercised to quash proceedings:-