Joymalya Bagchi, J.@mdashProceeding in C.GR Case No. 1060 of 2012 under Sections 498A/406 pending before the learned Chief Judicial Magistrate, Alipore, District-South 24-Parganas corresponding to Lake Police Station Case No. 70 dated 11th March, 2012 u/s 498A/406 of the Indian Penal Code has been assailed.
2. The prosecution case as alleged in the First Information Report lodged by opposite party no. 2 is as follows:
3. Opposite party no. 2 was married with petitioner no. 1 on 17th June, 2007 according to Special Marriage Act. Thereafter there was a social marriage under Hindu Rites and Customs which was performed on 20th June, 2007. The petitioner no. 1 who is the husband of opposite party no. 2 was an Assistant Professor of Statistics attached to the University of Missouri-Columbia, U.S.A. at the time of marriage. Petitioner no. 2 is the mother-in-law of opposite party no. 2 while petitioner no. 3 is the maternal uncle-in-law of opposite party no. 2 and petitioner no. 4 is the wife of petitioner no. 3.
4. It is alleged at the time of marriage a large number of articles including jewelries, furniture and other accessories were given as dowry as per the demands of the petitioners. As the husband of opposite party no. 2 was working abroad even the air tickets were purchased by the father of the opposite party no. 2. From the second day after the marriage reception i.e. from 22nd June, 2007 petitioner no. 2 started provoking to petitioner no. 1 against opposite party no. 2 and her family members. She stood in the way of normal intimacy between the couple. She mentally tortured opposite party no. 2 and abused her family members in filthy language. On 15th August, 2007 petitioner no. 1 asked her to go out of the house as petitioner no. 2 did not like her. She was saved by her father-in-law. (since deceased). Streedhan articles were entrusted to the petitioner no. 2 immediately after she went to the matrimonial home. Even during her honeymoon, she was subjected to mental and physical torture by petitioner no. 2. She finally left her matrimonial home in Kolkata for USA in the month of September, 2007. A male child was born to the couple in USA. Torture upon the opposite party no. 2 went on unabated in USA by petitioner no. 1 at the behest of petitioner no. 2. In April, 2010 father-in-law of the opposite party no. 2 expired. Thereafter petitioner no. 2 went to USA and petitioners no. 1 and 2 in collusion with one another enhanced the torture upon opposite party no. 2. As the child was suffering from some ailments it was threatened that the child would be put up for adoption. In December, 2010 petitioners no. 1 and 2 and the opposite party no. 2 came to India where a sum of Rs. 10,00,000/- was demanded and opposite party no. 2 was physically assaulted over such demand. She was locked up in a room and her child was left alone outside the room causing trauma to herself and the child. As a result, she fell sick and had to be hospitalized. Thereafter the couple again returned to USA. The petitioner no. 2 thereafter again came to USA and started living with them since April, 2011. Torture upon opposite party no. 2 increased. False allegations were made against her that she was unstable and had tried to end her life. Police authorities in USA was alerted and upon interrogating opposite party no. 2 they stated that the allegations were false. She was sent to her brother''s place at Michigan. On returning she found that her matrimonial home was locked. She had to live on the charity of friends and neighbours for some time. She could not trace out her husband and finally she managed to return to India. Her father paid the expenses for her travel. She contacted petitioner no. 3 (her maternal uncle-in-law and brother of the petitioner no. 2). He abused her in filthy language and threatened her not to contact the petitioners. Subsequently, she received summons of a divorce proceeding instituted against her by petitioner no. 1 in USA. Opposite party no. 2 instituted proceeding for restitution of conjugal rights, child custody, maintenance etc. She came to know that petitioner no. 2 had returned to India but was not getting in touch with her. Accordingly, she went to her matrimonial home on 11th March, 2012 with her father and other relations. She was physically assaulted by petitioners no. 2 and 3. She demanded return of her streedhan properties which was blatantly denied.
5. On the basis of her written complaint, First Information Report was registered. In conclusion of investigation charge-sheet has been filed against the petitioners u/s 498A/406/34 of the Indian Penal Code.
6. Mr. Moitra, learned Senior Counsel appearing on behalf of the petitioners submits that uncontroverted allegations in the First Information Report and the materials collected in the course of investigation do not disclose materials which constitute ''cruelty'' as defined u/s 498A of the Indian Penal Code. He submits that the impugned criminal case was registered as a counter-blast to the divorce proceeding instituted in USA which was ended in the decree of divorce. He further submits that the materials collected in the course of investigation do not support the allegations made in the First Information Report. He also submits that the ingredients of the offence of criminal breach of trust was absent and streedhan articles were found and seized from the locker during investigation which proved that they had not been misappropriated. In support of his contentions he relied on various decisions reported in
7. Ms. Sutapa Sanyal, learned counsel appearing for the opposite party no. 2 submits that the uncontroverted allegations clearly make out the ingredients of the alleged offences. The victim girl was brutally tortured and assaulted by the petitioners and her streedhan articles were held back and not returned in spite of requests. Recovery of streedhan articles from the custody of the accused persons in fact supports the allegation of criminal breach of trust. She further submits that due to non-availability of legal assistance her client was unable to effectively contest the divorce proceeding at U.S.A. She accordingly prays for dismissal of the revision petition.
8. Mrs. Ghose (De) learned counsel appearing for the State produces the statements recorded u/s 161 of the Code of Criminal Procedure in course of investigation. She relies on the statements of the father of opposite party no. 2 and others who corroborate the allegations in the first information report. She submits that there are statements recorded of independent witnesses also. She accordingly prays for dismissal of the petition.
9. I have considered the rival submissions of the parties. I have gone through the allegations in the first information report. The allegations in the first information report prima facie show that streedhan articles were entrusted to petitioner no. 2 in India and thereafter on her return when request was made for return of the streedhan articles the same was turned down. Accordingly, I am unable to accept the submission of Mr. Moitra that the ingredients of the offence of criminal breach of trust are not disclosed. It is a fact that the matrimonial tie between the parties has ended in a decree for divorce passed by a foreign Court. I do not express any opinion as to the impact of such a decree of divorce in India. More particularly, when the allegations of ill treatment or assault were allegedly perpetrated as alleged in the first information report prior to the decree of divorce dissolving matrimonial tie between the parties. The first information report has also disclosed allegations of physical and mental torture perpetrated the petitioner nos. 1, 2 and 3 in India. In fact, on 11th March, 2012, opposite party no. 2 and her father were allegedly assaulted by petitioner nos. 2 and 3. Hence, I am unable to accede to the plea of the petitioners that such allegations prima facie do not constitute ''cruelty'' as defined u/s 498A of the Indian Penal Code.
10. It is true that the first information report was registered after the receipt of summons in respect of the divorce proceeding instituted in USA.
11. Mr. Moitra has strenuously argued that the timing of the criminal proceeding gives rise to the irresistible conclusion that the same is an after thought and a counter blast to the divorce proceeding instituted in U.S.A. Mala fides of a complaint is a question of fact, which has to be probabilised in course of trial. One cannot also turn ones eyes from the fact that the allegations in the First Information Report stand corroborated by the statements recorded u/s 161 of the Code of Criminal Procedure during investigation. It is nobody''s case that the investigating agency is also biased against the petitioners. I do not wish express any conclusive opinion as to the allegation of bias or mala fides of opposite party no. 2 and I keep such issue open for adjudication at the appropriate stage of the proceeding if agitated before the trial Court in accordance with law. Suffice to say that in the face of the uncontroverted allegations disclosing the ingredients of the alleged offences, quashing of proceeding on the mere plea of mala fides of opposite party no. 2 would amount to denial of access to justice to a complainant to prove her case in accordance with law.
12. In the instant case the allegations clearly make out a case of entrustment and refusal to return streedhan articles of opposite party no. 2 by the petitioners. That apart, there are allegations of physical assault and mental torture on the housewife during the subsistence of the matrimonial tie between the parties. Such allegations are corroborated by the statements recorded u/s 161 of the Code of Criminal Procedure. Hence, it cannot be said that the instant case is one where there is no specific allegation of torture disclosed in the impugned First Information Report/charge-sheet. In
13. In
"We are clearly of the opinion that the mere factum of the husband and wife living together does not entitle either of them to commit a breach of criminal law and if one does then he/she will be liable for all the consequences of such breach. Criminal law and matrimonial home are not strangers. Crimes committed in matrimonial home are as much punishable as anywhere else. In the case of stridhan property also, the title of which always remains with the wife though possession of the same may sometimes be with the husband or other members of his family, if the husband or any other member of his family commits such an offence, they will be liable to punishment for the offence of criminal breach of trust under Sections 405 and 406, IPC."
"After all how could any reasonable person expect a newly married woman living in the same house and under the same roof to keep her personal property or belongings like jewellery, clothing, etc., under her own lock and key, thus showing a spirit of distrust to the husband at the very behest. We are surprised how could the High Court permit the husband to cast his covetous eyes on the absolute and personal property of his wife merely because it is kept in his custody, thereby reducing the custody to a legal farce. On the other hand, it seems to us that even if the personal property of the wife is jointly kept, it would be deemed to be expressly or impliedly kept in the custody of the husband and if he dishonestly misappropriates or refuses to return the same, he is certainly guilty of criminal breach of trust, and there can be no escape from this legal consequence. The observations of the High Court at other places regarding the inapplicability of Section 406 do not appeal to us and are in fact not in consonance with the spirit and trend of the criminal law. There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrongdoer in cases like arson, accidents etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import. It is not at all intelligible to us to take the stand that if the husband dishonestly misappropriates the stridhan property of his wife, though kept in his custody, that would bar prosecution u/s 406 IPC or render the ingredients of Section 405 IPC nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband, no action against him can be taken as no offence is committed is to override and distort the real intent of the law."
14. The Apex Court concluded as follows:-
"To sum up, the position seems to be that a pure and simple entrustment of stridhan without creating any rights in the husband excepting putting the articles in his possession does not entitle him to use the same to the detriment of his wife without her consent. The husband has no justification for not returning the said articles as and when demanded by the wife nor can he burden her with losses of business by using the said property which was never intended by her while entrusting possession of stridhan. On the allegations in the complaint, the husband is no more and no less than a pure and simple custodian acting on behalf of his wife and if he diverts the entrusted property elsewhere or for different purposes he takes a clear risk of prosecution u/s 406 of the IPC. On a parity of reasoning, it is manifest that the husband, being only a custodian of the stridhan of his wife, cannot be said to be in joint possession thereof and thus acquire a joint interest in the property."
15. In the instant case, it is alleged that streedhan articles were entrusted to the petitioner no. 2 and were not returned on demand by the petitioners. Ingredients of offence of criminal breach of trust are therefore clearly evidenced. Recovery of streedhan articles from the custody of the dominion of the petitioners during investigation is not a ground to terminate criminal proceeding.
16. In
17. I however, find that no overt act has been attributed in the first information report so far as the petitioner no. 4 is concerned. It has been argued that some allegations have been made against her in the statements recorded u/s 161 of the Code of Criminal Procedure she aided and abetted the other accused persons. In
18. In view of the aforesaid ratios and considering the absence of any specific overt act attributable to petitioner no. 4 with regard to torture and/or entrustment and misappropriation of streedhan articles, I am of the opinion that the proceeding against the petitioner no. 4 is an abuse of process of Court and is liable to be quashed.
19. In view of the aforesaid discussions, I quash the proceeding against the petitioner no. 4. The impugned proceeding shall continue against the petitioner nos. 1, 2 and 3 before the trial Court in accordance with law.
20. I clarify that the observations made by this Court are only for the purpose of disposal of the revision petition and would not have any binding effect on the trial Court at any subsequent stage of the proceeding.
21. The revision petition is allowed to the aforesaid extent.
