Gulsana @ Gulista vs State of Uttaranchal and Others

Servesh Kumar Gupta, J.—By way of both these criminal miscellaneous applications, the applicants have sought the same relief for setting aside and quashing the impugned chargesheet submitted by the Investigating Officer in crime No. 231 of 2005 under Sections 406/504/506/427 IPC, P.S. Manglour, District Haridwar and impugned order of cognizance dated 11.9.2006 passed by the learned Judicial Magistrate, Roorkee in Criminal Case No. 1797 of 2006, State v. Gulshana and Ors., hence these are being disposed of by this single judgment.

The facts are that one first information report was lodged by Sri Khalil against Sri Intezar, Smt. Gulshana @ Gullo (second wife of Intezar) and Husnara (sister of Intezar) for the offences of Sections 406, 504, 506 and 427 IPC in P.S. Manglore, Sub District Roorkee. It was stated in the report that Sri Khalil married his daughter Smt. Khairunisha with Intezar. In the wedding, so many items pertaining to the family use like Fridge, sofa, dressing table, utensils etc. were given by the father of the girl to Sri Intezar, besides sundry items of jewellery of silver and gold, nay the clothes totaling cost of all worth Rs. 1.50 lacs. The accused persons threw Smt. Khairunisha out of wedding house and did not return the household items including jewellery and clothes to her. She was expelled out from the house along with her minor daughter Nargis only in the clothes wearing on her body. Intezar wedded a second marriage with Gulshan @ Gullo. Those three accused persons, i.e. Intezar, his second wife Gulshana and his sister Husnara are dishonestly misappropriating the property which was entrusted to Intezar as Stridhan belonging to Smt. Khairunisha.

On lodging this first information report u/s 156(3) Code of Criminal Procedure on dated 3.10.2005, Smt. Gulshana and others filed a writ petition (M/B) No. 917 of 2006 wherein it was ordered by this Court that the police will not take any coercive steps against the Petitioners till the filing of the chargesheet in case crime No. 231 of 2005. So the police in compliance of the order of this Court, did not arrest them and investigate the matter.

After investigation, the police submitted the chargesheet against Intezar and Smt. Gulshana only for the offences under Sections 406, 504, 506 and 427 IPC, while the third accused Husnara (daughter of Yakub) was absolved from the charges. After submission of chargesheet, the criminal case No. 1797 of 2006 was registered in the court of Judicial Magistrate, Roorkee pertaining to the offences under Sections 406, 504, 506 and 427 IPC but the accused persons filed the aforesaid criminal applications and in application No. 105/2007, further proceedings in that case were stayed at the time of admission of the petition.

After hearing the pros and cons of the case, it is relevant to mention that the learned Counsel on behalf of the Petitioners/accused have submitted a sole argument in front of this Court that there was no criminal breach of trust committed by the applicants because there was no entrustment of any property by the complainant with the accused persons, while for making out the offence of Section 405 IPC i.e. criminal breach of trust, there must have been some entrustment of property. This Court is unable to agree with the learned Counsel''s argument because in the first information report it has been clearly mentioned that so many items of household including clothes, utensils, jewellery etc. were given to Sri Intezar in the wedding and the jewellery was in the form of Stridhan to his first wife Smt. Khairunisha. When Smt. Khairunisha was expelled out from the house, these all things are being misappropriated and have been converted to their own use by the accused persons, so it cannot be said that there was no entrustment of any property or the accused persons are not dishonestly misappropriating the same after expulsion of Smt. Khairunisha from their house. There has been detailed investigation regarding the alleged facts of the first information report and after conclusion of the investigation, the chargesheet has been submitted against Smt. Gulshana @ Gullo and Intezar, absolving the sister of Intezar, namely, Husnara. It appears that the investigation has been made quite independently without favouring either to the complainant or the accused persons, that is why Husnara has been exonerated from any liability.

So, these petitions, in the above circumstances, are bereft of merit and liable to be dismissed. Both the petitions are dismissed accordingly. Stay order made by this Court is vacated. Copy of the order be sent to the court below so that the proceedings which are stayed for a quite longtime, may be commenced without any further delay.