Bhaskar Seal vs Anjlikalita

I.A. Ansari, J.—By making this application u/s 482/483 Code of Criminal Procedure read with Article 227 of the Constitution of India, the Petitioner, who is an accused in the Complaint Case No. 54c/ 200, which is pending in the Court of Judicial Magistrate, 1st Class, Bajali, District Barpeta, has approached this Court for quashing of the complaint.

I have perused the materials on record including the complaint, in question. I have heard Mr. M.U. Mahmud, learned Counsel, appearing on behalf of the accused-Petitioner, and Mr. H.N. Sarma, learned Senior counsel for the complaint-opposite party.

The law with regard to quashing of criminal complaint is no longer res integra. A catena of judicial decisions have settled the position of law on this aspect of the matter. I may refer to the case of R.P. Kapur v. State of Punjab AIR I960 SC 866 , wherein the question, which arose for consideration was whether a first information report can be quashed u/s 561A of the Code of Criminal Procedure, 1898. The Court held, on the facts before it, that no case for quashing of the proceeding was made out; but Gajendragadkar, J, speaking for the Court observed that though, ordinarily, criminal proceedings instituted against an accused must be tried under the provisions of the Code, there are some categories of cases, where the inherent jurisdiction of the Court can and should be exercised for quashing the proceedings. One such category, according to the Court, consists of cases, where the allegations in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases, no question of appreciating evidence arises and it is a matter merely of looking at the FIR or the complaint in order to decide whether the offence alleged is disclosed or not. In such cases, said the Court, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused. From the case of R.R Kapoor (supra), it becomes abundantly clear that when a mere look into the contents of a complaint shows that the contents of the complaint, even if taken at their face value and accepted to be true in their entirety, do not disclose commission of offence, the complaint shall be quashed. As a corollary to what has been discussed above, it is also clear that if the contents of the complaint constitute offence, such a complaint cannot be quashed.

Laying down the scope of interference by the High Court in matters of quashing of FIR or complaint, the Apex Court in State of Haryana and others Vs. Ch. Bhajan Lal and others, laid down as follows:

In the backdrop of the interpretation of the various relevant provisions of the Code under chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the inherent powers u/s 482 of the Code, which we have extracted and reproduced above, we give the following categories of cases by way of illustration, wherein such power could be exercised either to prevent abuse of the process of the any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines of rigid formulae and to give an exhaustive list of myriad kinds of cases, wherein such power should be exercised:

(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations made in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegation in the FIR do not constitute a cognizable offence but constitute only a non-conizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated u/s 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously-instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal private grudge.

In the case of Bhajanlal (supra), the Apex Court gave a note of caution on the power of quashing of criminal proceeding in the following words:

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extra ordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.

(Emphasis is added)

It is clear from a close reading of the principles laid down in the case of R.P. Kapoor (supra) and Bhajanlal (supra) that broadly speaking, quashing of the First Information Report or the complaint is possible (a) when the allegations made in the First Information Report or the complaint, even if taken at their face value and accepted in their entirety as true, do not prima facie constitute any offence or make out a case against the accused; (b) when the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and/or make out a case against the accused; and (c) when the allegations made in the FIR or complaint are so absurd and inherently improbable that on the basis of such absurd and inherently improbable allegations, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

In other words, when the allegations made in a complaint disclose commission of an offence, such a complaint cannot be quashed by relying upon some other materials on which will depend the defence of the accused, for, in such cases, truthfulness or otherwise of the allegations contained in the complaint or the probability of the defence plea can be determined only by effective investigation or at the trial. I am also guided to take this view from the case of State of Bihar and Another Vs. Md. Khalique and Another, wherein the Apex Court, while dealing with the question of qushing of FIR, observed as follows:

In Bhaianlal case, this Court has also held that the power of quashing a criminal proceeding should be exercised sparingly and with circumspection and that too in the rarest of rare cases. The present case is not rarest of rare case.

In view of the settled legal position and as offence have been disclosed in the FIR, the High Court ought not to have interfered with the investigation and should have permitted the police to complete it. We, accordingly, hold that the High Court has committed a grave error in quashing the entire proceedings and ought not to have thwarted the prosecution. (See also Latif Ahmed Bin Hussain v. State of Assam reported in (2003) 1 GLR 514, Kailash Chandra Pareek v. State of Assam reported in (2003) 2 GLR 305.

(Emphasis is added)

In support of his case that the accused-Petitioner, in the light of the contents of the complaint, is prima facie shown to have committed criminal breach of trust in respect of the properties of the complainant handed over by her to the accused-Petitioner, as her husband, as a trustee thereof, Mr. H.N. Sarma, learned Senior counsel, appearing on behalf of the Respondent, places reliance on the case of Krishna Deka Vs. Bichitra Deka @ Lahkar, wherein this Court observed as follows:

Before entering into the merit of the present revision, it is pertinent to note that in an Indian scenario, the presents/gifts, which a bride receives on the occasion of solemnization of her wedding, (which are normally described as dowry) fall into three broad categories-(a) properties, which are intended for exclusive use of the bride, for example, the gifts received by her in the form of ornaments, wearing apparels, etc. for her exclusive use and enjoyment, (b) articles and the gifts, which are received by a bride for common use and enjoyment in the matrimonial home and (c) articles given as presents/gifts to the husband or the members of the husband''s family.

So far as the properties falling in category (c) are concerned, the wife can have no claim over such properties. As far as properties described in category (b) are concerned both the husband and wife remain in joint possession of the same; but so far as the properties described in category (a) are concerned, such properties are exclusive properties of the wife and can be safely termed as her stridhan on which she has exclusive right of use and enjoyment. In the case at hand, a minute scrutiny of the evidence on record shows that no specific assertion has been made by the complainant that she had entrusted any of her properties specifically with the accused. What is, however, clear from her evidence is that a number of valuable ornaments were brought by her from her parental house on the occasion of her marriage to her matrimonial house. It is also in the evidence of the complainant that she was beaten and driven out of her matrimonial house by the accused-Petitioner retaining with himself the ornaments and their child. Evidence so given by the complainant has remained unshaken during the course of her cross-examination. The learned trial Court believed her evidence and assigned reasons therefore. The learned Sessions Judge, Morigaon, has also scrutinized the evidence on record and believed her evidence as well as the reasoning assigned by the learned trial court for finding the accused-Petitioner guilty of offence u/s 406 IPC.

Upon careful perusal of the materials on record, I find no reason to disbelieve the evidence given by the complainant. What tranpires from the unshaken evidence of the complainant is that she brought a number of ornaments, on the occasion of her marriage, to her matrimonial house, but while driving her out of her matrimonial house, accused-Petitioner retained those ornaments. The ornaments, which the complainant had brought as aforesaid, to the house of the accused remained at the house of the accused-Petitioner in trust and the accused became a trustee thereof. While driving her out of the house, the accused-Petitioner did not permit her to take the ornaments aforementioned. The retention was, undoubtedly, a wrongful retention of the properly entrusted to the accused-Petitioner and the same amounted to misappropriation, which, in turn, made out a case of criminal breach of trust. Reference made by the learned trial Court to the case of Madhu Sudan Malhotra v. Kishore Chand Bhandari and Ors. (1988) SCC 854 is therefore, misplaced.

From a careful reading of the above observations made in Krishna Deka (supra), what transpires is that in an Indian scenario, the presents/gifts, which a bride receives on the occasion of solemnization of her wedding (which are normally described as dowry) fall into three broad categories, namely, (a) properties, which are intended for exclusive use of the bride, for example, the gifts received by her in the form of ornaments, wearing apparels, etc. for her exclusive use and enjoyment, (b) articles and the gifts, which are received by a bride for common use and enjoyment in the matrimonial home, and (c) articles given as presents/gifts to the husband or the members of the husband''s family. So far as the properties falling in category (c) are concerned, the wife can have no claim over such properties. As far as the properties describes in category (b) are concerned both the husband and wife remain in joint possession of the same; but so far as the properties described in category (a) are concerned, such properties are exclusive properties of the wife and can be safely termed as her stridhan on which she has exclusive right of use and enjoyment. If the properties, which fall under category (a), are entrusted by a wife to her husband and the husband, later on, refuses to return back such properties to his wife, when the wife so demands the same, and/or when the husband dishonestly converts the same to his own use and refuses to left his wife enjoy the same, the husband can be safely held to have committed the offence of criminal breach of trust.

Bearing in mind, as pointed out hereinabove, the scope of the powers of the High Court on matters of quashing of complaint as well as the law relating to criminal breach of trust by a husband with regard to the properties of his wife, let me, now, turn to the complaint, in question. For the sake of brevity, the facts of the case, as alleged in the complaint, are quoted herein below:

The complainant is permanently residing at Baghmara in the district of Barpeta. On last 18th day of April, 1999, the complainant and accused solemnized their marriage as per Hindu rites and customs. In this marriage the relatives and the friends presented the below noted goods on love as gift and dowry to the complainant. The gifted goods are own stridhana of the complainant. On the other hand, the books are within the educational course of the complainant. Although the complainant is a Lecturer of College in Assamese subject. The complainant has passed M.A. in Assamese securing 1st Class 1st position from the Gauhati University.

The complainant is a mother of a male child. The age of the male child is about 1 year 4 months. After about 1 year from the date of solemnization of marriage the accused started torturing the complainant both physically and mentally for which the complainant suffered mentally. Being bound the complainant has returned to her mother''s house. After solemnization of marriage, the below noted goods were taken to the husbands house and handed over to the husband and the husband took over the charge of goods and promised to return, when it will be necessary for the complainant. Some of the goods, books-papers, furniture have been taken to Bongaigaon, Barpeta and some other goods have been kept at Amguri Baitamari. The books are very important for the complainant in other words these books would be used for research work of the complainant. At present the complainant is doing research under the Gauhati University.

On the date of occurrence, the complainant went to the address of the 1 No. addressee along with witnesses and told accused to return the goods. But the accused refused to give the goods. Some of the below noted goods are kept carelessly by the accused with a view to destroy and some of the goods are being used by the accused and demanded to be of his own. If the goods are not recovered by police, than there is possibility that the goods would be completely destroyed. The witnesses will prove the incident.

Can it be held, on the basis of the contents of the above complaint, that the complaint does not disclose commission of any offence? While answering the above question, it is pertinent to note that the complaint, in the present case, has been made for prosecution of the accused-Petitioner u/s 406 IPC. What, however, needs to be borne in mind, while giving the answer to the question posed, is that, while exercising criminal jurisdiction, a Court is not bound by the penal Sections quoted in the complaint; rather, the Court has to act on the basis of the contents of the complaint and if the complaint discloses commission of an offence, which the Court is competent, under the law, to take cognizance of, then, the Court shall take cognizance of such offence, which the complaint discloses and not what the complainant quotes in such complaint. In other words, the Court cannot, in such cases, refuse to take cognizance and/or issue process to the offender nor can the Court, in such cases, dismiss the complaint merely on the ground that while the complaint discloses one offence, the penal provisions quoted therein or referred to therein is a different one and/or is incorrect.

What the present complaint reflects is that the complainant and the accused-Petitioner solemnized their marriage on 18.4.99. The complaint has been lodged in the year 2002 i.e., after 3/4 years from the date of marriage between the parties concerned. The parties concerned also have a male child aged about 1 year 4 months. It is alleged by the complainant that after one year of their marriage, the accused-Petitioner started torturing her both physically as well as mentally and being bound by the situation, which she faced, the complainant had to return to her mother''s house. The complaint also discloses that after solemnization of the marriage, a number of articles, which are enlisted in the complaint itself, were taken by the complainant to the house of the accused-Petitioner and the same, on being handed over to the accused-Petitioner by the complainant, was taken control of by the accused-Petitioner and he remained in the charge of the goods so entrusted to him and promised to return the same, whenever the same became necessary for the complainant. The complainant further discloses that these goods included books, table, furniture, etc., some of the goods have been kept by the accused-Petitioner at Bongaigaon and some are at Baitamari. It is also alleged in this complaint that as the books were very important for the complainant for her research work, which she has undertaken under Gauhati University, the complainant went to the house of the accused-Petitioner and asked him to return the books aforementioned, but the accused refused to part with the same. It is further alleged in the complaint that some of the goods were kept carelessly by the accused-Petitioner with intention to destroy the same and that though some of the goods are being used by the accused, the accused has denied that those goods belonged to the complainant.

In the backdrop of the above contents of the complaint, let me refer to Section 405 IPC, which defines Criminal Breach of Trust. Section 405 lays down as follows:

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 properly 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.

Bearing in mind the position of law as indicated hereinabove, when I revert to the complaint, in question, it clearly surfaces that according to the complainant, the accused-Petitioner has refused to return some of the goods, which the complainant had brought to her marital house and had handed over to the accused-Petitioner and the accused-Petitioner was holding the same as a trustee thereof.

It is alleged in the complaint that the accused-Petitioner has not only refused to part with the goods aforementioned, but has also been using the same and claiming the same to be of his own. The allegation, so levelled against the accused-Petitioner, may or may not be true; but at the stage of taking of cognizance, the contents of the complaint, as laid down in the case of Bhajanlal (supra), has to be treated as true for the purposes of determining whether any commission of offence has been disclosed thereby. Viewed from this angle, when the allegations made against the accused-Petitioner are taken into consideration, it clearly transpires that the accused-Petitioner, who was entrusted with the properties, in question, by the complainant, has dishonestly misappropriated the same and has converted the same to his own use. Situated thus, it is more than abundantly clear that the complaint does disclose the commission of offence by the accused-Petitioner u/s 406 IPC.

In the facts and circumstances of the case, as mentioned hereinabove, and the law relevant thereto, taking of cognizance of the offence u/s 406 IPC by the Court below cannot be said to be contrary to, and/ or impermissible, in law.

Mr. Mahmud, learned Counsel for the Petitioner, places reliance on the case of Shri J.K. Thaosen v. Shri Kedarnath Upadhaya and Anr. reported in (1986) 2 GLR 467, wherein it has been laid down as follows:

Sections 482 and 483 obligate the High Court to perform "Judicial justice", to ensure liberty and to uphold the dignity of the individual. A suspect or accused in dock lives an undignified life. As such, before a person is brought to court designating him as an accused, justice demands that he must be reasonably considered as a criminal or at least there must be some cause or reason to summon him by the Court and compel him to stand in dock. To ensure justice, liberty, equality and to uphold the dignity of individual the spirit of the Constitution, Sections 482 and 483 of "the Code" have been framed so that no individual is deprived of justice, liberty or suffers indignity.

So far as the law lay down in J.K. Thaosen (supra) is concerned, there can be no dispute; but the fact remains that the interference, by way of quashing of complaint, is not permissible under the law if the complaint discloses commission of offence.

Mr. Mahmud also places reliance on the case of Jagadish Prasad Awasthi v. Smti. Sabitri Devi reported in (1990)2 GLR 121, wherein this Court observed as follows:

Mr. Sharma has further drawn my attention to a recent decision of the Apex Court in Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, wherein it was held that the legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It was further held that it is for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is to be on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue.

The observations of the Court in the case of Jagadish Prasad Awasthi (supra), indicates the tests to be applied by the Court for determining as to whether the uncontroverted allegations prima facie establish the offence or not. In the case at hand, the contents of the complaint, if remain unrebutted, does disclose, as already indicated hereinabove, commission of offence u/s 406 IPC.

Mr. Mahmud further places reliance of the case of Dr. Govind Balav Goswami v. Meena Sharma reported in 1998 (1) GLT 147. The observations made in this case, which Mr. Mahmud has relied upon, are as follows:

Recourse to criminal proceedings cannot be taken for shadow boxing. Such proceedings can be initiated when there are strong reason for it. In the present case one finds that accused has been summoned to answer charge under Sections 500/503 and 506 on the bare allegation that the accused had warned the complainant of her dereliction of duty in a high pitch and harsh tone saying as to why she was loitering and neglecting her duties. If the chief executive officer of the Managing Committee of a Private School is not to be allowed the power even to say these words to the school employees that will be the end of the school administration, and teachers and employees would be free to themselves decide to work or to loiter here and there during school hours.

In a school where infants are imparted elementary education responsibility of the management is more intense for ensuring that the teachers and employees of the schools work with devotion. Whereas in schools imparting education at middle or higher levels personal supervision of discipline amongst teachers by the management is not that demanding. Keeping in view the fact that the school was running nursery and primary classes personal supervision of teaching work in the classes of the school by the Secretary of the Managing Committee was a desirable and appreciable work for which he could not be dragged in a Court of law for answering criminal charges which are apparently not disclosed simply because the Secretary tried to discipline an erring teacher of his school.

In my opinion there was no legal sanction for the learned Magistrate for taking cognizance of any of the offences against the accused by the impugned order. The learned Magistrate has acted illegally. In absence of appropriate material for summoning the accused. His order, therefore, deserves to be quashed.

In the facts of the case at hand, when the complaint itself discloses commission of offence u/s 406 IPC, the law laid down in Dr. Govind Ballav Goswami (supra) has no application.

In the result and for the foregoing reasons, this revision has no merit and the same shall accordingly stand dismissed.

Send back the LCR with a copy of this judgment and order.