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Judgment
V.P. Patel, J
This Criminal Miscellaneous Application is filed by the Petitioners under Section 482 of the Code of Criminal Procedure Code to quash the
complaint being Criminal Case No. 158/2011 lodged before the court of learned Judicial Magistrate, Vanthaly, District Junagadh.
Heard learned Advocate Mr. Zalak B. Pipalia for Petitioner, learned Advocate Mr. Amir Pathan for learned Advocate for Mr. Ashish M. Dagli for
Respondent No.1 and learned APP Mr. J.K.Shah for Respondent No. 1- State of Gujarat.
Facts of the Case:
3.1 That the Complainant herein â€" Respondent No.2 is the father-in-law of Petitioner No.1. The Petitioner Nos. 2 and 3 are the father and brother
of the Petitioner No.1. That the daughter of Respondent No.2 had married with Petitioner No.1. The daughter of Respondent No.2 has committed
suicide on 12.4.2019. The FIR under Section 306, 498(A) and 114 of the Indian Penal Code was registered against the Petitioner Nos. 1 and 3 before
the Rajkot (City) B Division Police Station. That the charge sheet was filed after investigation and the case was committed to the Sessions Court.
3.2 The learned Sessions Judge has conducted trial against the present Petitioner Nos.1 and 3 in Sessions Case No. 149/2019 for the offence under
Sections 306, 498A and 114 of the IPC and acquitted the accused on 30.3.2011. That the Appeal No. 711/2011 is filed by the State of Gujarat against
the acquittal order. The Respondent No.1 has also preferred Criminal Appeal No. 782/2011. Both the Appeals are admitted by this Court.
3.3 The Respondent No.2 has filed Criminal Case for the offence under Section 406 read with Section 114 IPC before the JMFC, Vanthli, District
Junagadh which is registered as Criminal Case No. 158/2011.
3.4 Learned Magistrate has proceeded under Section 202 of the Code of Criminal Procedure and directed the PSI, Vanthly to inquire the matter and
report within 30 days. It is alleged by Respondent No.2 â€" Complainant that the Petitioners have misappropriated the stridhan and gift given to the
daughter of Respondent No.2 at the time of her marriage with Petitioner No.1. That after the order passed by the learned JMFC, the PSI has made
an inquiry, recorded the statements of the concerned people and submitted the report to the learned Magistrate, that the offence alleged is not
constituted. That the learned Magistrate has issued the process under Section 204 of the Cr.PC against the Petitioners. Therefore the petition is filed
to quash Criminal Case No. 158/2011 pending before the court of learned JMFC, Vanthly, District Junagadh.
Arguments of the Learned Advocate for Parties:
5.1 Learned Advocate for Applicant has submitted that the offence is not made out. The evidence is not collected by the Investigating Officer. The
complaint is filed to harass the Petitioners. He requested to quash the Criminal Case No. 158/2011 pending before the learned JMFC, Vanthly.
5.2 Learned Advocate for the Petitioners also argued that as per Section 15 of the Hindu Succession Act and Section 6 of the Dowry Prohibition Act
1961, the right to hold the stridhan is with the husband after the death of his wife i.e. daughter of Respondent No.2. Learned Advocate has relied upon
the judgment passed by this Court (Coram: Harsha Devani,J) dated 2.9.2008 in Criminal Misc. Application No. 522/2001.
5.3 Learned Advocate for Respondent No.2 has submitted that the Petitioner No.1 was married with daughter of Respondent No.2, her name was
Krishna. She has committed suicide. The ornaments are lying with the Petitioner No.1. It is further submitted that out of the wedlock of Petitioner
No.1 and the daughter of Respondent No.2, a baby girl was born. She is at present aged about 14 years. It is further argued that though the demand
of Stridhan was made in presence of leader of the society, the petitioners have agreed to give the ornaments but they have not given back the
ornaments and stridhan. He has requested to dismiss this petition.
5.4 Learned APP Mr. J.K.Shah has submitted that Criminal Appeal is pending against the present petitioners. The present petitioners have agreed to
hand over the stridhan to her daughter when she become major. He has requested to pass just and equitable order.
Merits of the Case:
5.1 The Rule is issued by this Court by order dated 6.7.2012 and this Court (Coram: R.H.Shukla,J) has granted the interim relief in terms of paragraph
23(C) qua the Petitioner. As per the order dated 21.6.2014 the list of the ornament was handed over to the learned Advocate for the Petitioner.
5.2 This court has passed the below mentioned order on 24.4.2017:
“During the course of arguments, learned advocate Mr. Zalak Pipalia appearing for the aspplicant has placed reliance upon the provision under
Section 6 of the Dowry Prohibition Act. He submitted, on instructions, that the applicant no.1 is ready and willing to file an undertaking to the effect
that the gold ornaments lying with him will be handed over to his daughter as and when she becomes major. It is open for the learned advocate for
applicant no.1 to file such undertaking in the Registry. Matter is adjourned.â€
5.3 It is an admitted fact that the Petitioner Nos. 1 and 3 are acquitted in Sessions Case No. 149/2009 passed by the judgment and order dated
30.3.2011 by the learned Sessions Judge, Rajkot. The acquittal appeal is filed by the State as well as Respondent No.2, which is pending in this court.
It is not in dispute that the baby girl named Meshwa was born out of the wedlock of the Petitioner No.1 and the daughter of the Respondent No.2
â€" Krishna. Learned Advocate for the Petitioners has also submitted that the daughter Meshwa is staying with Petitioner No.1 and now she is
studying in 9th standard.
The first contention of learned Advocate for Applicant is that by virtue of Section 13(2) of the Hindu Succession Act and Section 6 of the Dowry
Prohibition Act the Applicant â€" Husband can retain the stridhan after the death of his wife. It is stated in the complaint that the stridhan and other
ornaments, clothes, vessels are in possession of the accused (Petitioner No.1). It is also stated that as per the customs the gift, dowry, ornaments,
clothes were handed over in presence of the leaders of the society. The said articles were handed over to the accused (Petitioner No.1) to preserve
the said things.
In pursuance of the order dated 24.4.2017 passed by this Court (Coram: V.M.Pancholi,J) the Petitioner No.1 has filed undertaking in form of
affidavit. The same is taken on record. The Petitioner No.1 has stated in the affidavit as under:
“2. If further state that the respondent no.2 herein is my father-in-law and he has filed the impugned private complaint against me and my family
members for allegedly misappropriating the Stridhan of my deceased wife which she had received at the time of her marriage with me as well as the
gifts and other golden ornaments that were received by her when she gave birth to our daughter Mishwa. I state that my daughter aged 12 years is
residing with me and is studying in 7th Standard and is very happy with me.
I further state that the golden ornaments that are part of my deceased wife’s Streedhan are in my safe custody and I wish to hand over all the
golden ornaments of my deceased wife to my daughter Mishwa as and when she attains majority and therefore I undertake before this Hon'ble Court
that I will hand over all the golden ornaments of my deceased wife â€" Krishna to my daughter Mishwa as and when she attains the age of majority
and until that I may be permitted to hold the said ornaments in trust on behalf of my daughter or as directed by the Hon'ble Court.â€
The right of the property of the female Hindu dying intestate is governed by Section 15 (1) and 16 of the Hindu Succession Act. The relevant
portion of provision reads as under:
“15 General rules of succession in the case of female Hindi â€" (1) The property of a female Hindu dying intestate shall devolve according
to the rules set out in section 16, -
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.â€
Order of succession and manner of distribution among heirs of a female Hindu. - The order of succession among the heirs referred to in
section 15 shall be, and the distribution of the intestates property among those heirs shall take place according to the following rules, namely:-
Rule 1. - Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those
included in the same entry shall take simultaneously.
Rule 2.- xxx xxx xxx
Rule 3. xxx xxx xxxâ€
10.Considering the factual aspect of this case that the wife of Petitioner No.1 â€" Krishna has committed suicide, now she is no more after her death,
the property shall devolve according to Section 15(1). The daughter of the said female is living. She is residing with Petitioner No.1 i.e. her father. As
per Section 15(1)
(a) of the Hindu Succession Act, the property of female is devolved firstly upon the son, daughter and husband. As per Section 16 Rule 1 of the Hindu
Succession Act, the property is devolved amongst the head specified in Sub-Section (1) of Section 15 if they are included in the same entry shall take
simultaneously.
It is beneficial to refer Section 6(1) of the Dowry Prohibition Act, which reads as under:
“6. Dowry to be for the benefit of the wife or her heirs. - (1) Where any dowry is received by any person other than the woman in connection
with whose marriage it is given, that person shall transfer it to the woman -
(a) if the dowry was received before marriage, within three months after the date of marriage; or
(b) if the dowry was received at the time of or after the marriage, within three months after the date of receipt; or
(c) if the dowry was received when woman was a minor, within three months after she has attained the age of eighteen years
and pending such transfer, shall hold it in trust for the benefit of the woman.
12.Herein the case the woman has died, the heirs are entitled to claim from the person holding the dowry. In this case the deceased women has a girl
child and the ornament is with the father of the girl. The girl is residing with her father i.e. Petitioner No.1. The dowry is to be received by the woman
(girl child â€" Mishwa) and she is minor. Therefore she can get such dowry within three months after she has attained the age of eighteen years and
pending such transfer, the present Petitioner No.1 being father shall hold it in trust for the benefit of the woman (girl child â€" Mishwa).
13.On perusal of paragraph 2 of the complaint, it is stated that the trial is pending for the offence under Section 306 before the Sessions Court, Rajkot.
But, as per Annexure ‘B’ the trial is concluded and Petitioner No.1 and 3 are acquitted. In view of Sections 15 and 16 of the Hindu Succession
Act and Section 6(1) of the Dowry Prohibition Act, so far as the retention of Streedhan articles are concerned, the Petitioner No.1 is justified in
retaining the Streedhan on behalf of his daughter, after the death of her wife. If it is considered that the ornaments are concealed by the Petitioner, the
same can be said to be purely civil dispute. Hence, no offence as alleged can be stated to have been made out.
It is well settled that when the allegation made in the complaints taken at the face value in their entirety do not disclose any offence, this Court in
exercise of powers under Section 482 of the Code, can quash the same to prevent the abuse of the process of Court. In these circumstances, this is a
fit case for exercise of inherent powers under Section 482 of the Code.
15.Considering the facts and circumstances of the case, the law enumerated in the above paragraph, the contents of the complaint and the foregoing
reasons, the present Criminal Misc. Application succeeds. Criminal Misc. Application No. 158 of 2011 pending before the Court of learned JMFC,
Vanthly, District Junagadh is required to be quashed and accordingly quashed and set aside.
16.Further it is directed that Petitioner No.1 shall hand over to his daughter â€" Mishwa the gold ornaments, streedhan, clothes, vessels, etc. which are
in his possession, within three months after her daughter attains the age of eighteen years.
Rule is made absolute.
Direct service permitted.