Laxmi Sharma and others vs Om Prakash Sharma

Rampal Singh, J.

The Petitioners have invoked the inherent powers of this Court for quashing the proceedings pending against them in the Court of Chief Judicial Magistrate, Bhind (Criminal Case No. 393/1982) under Sections 380 and 497 rea\\i with Section 34 of the Indian Penal Code.

The Petitioner No. 1 is the married wife of the non-petitioner. Petitioners Nos 2 and 3 are the parents of Petitioner No. 1, and Petitioner No. 4 is her brother. Non-petitioner-husband, Om Prakash Sharma, who is an Advocate practising at Bhind, filed a complaint against the petitioners in the Court of Chief Judicial Magistrate, Bhind, that while the petitioners were staying in his house, they had taken away ornaments of gold and silver. These ornaments, according to the complaint, were his ancestral property, which during his marriage with petitioner No. 1, was given to her as gift. The complaint further proceeds that till 9-1-1980 all the petitioners were staying in his house from 6-1-1980; when he returned in the night of 10-1-1980 he found that none of the petitioners was present in the home and had taken away the entire ornaments of the family. The complaint further proceeds and contains several facts which are not relevant at all for deciding this petition. Before the processes were issued, four prosecution witnesses were examined, and since then the proceedings are pending against the petitioners in the Court of Chief Judicial Magistrate. The petitioners claim that assuming the contents of the complaint or the version of the prosecution be true, still the alleged theft is alleged to have been committed by petitioner No. 1, who was the owner of the property alleged to have been stolen, and no case of theft is made out either against petitioner No. 1 or her parents and brother. The learned counsel have extensively addressed this Court on facts as well as on law.

In Pratibha Rani Vs. Suraj Kumar and Another, , Hon''ble the Supreme Court observed :

It cannot be said that upon a woman entering the matrimonial home the ownership of ''Stridhan'' property becomes joint with her husband or his relations. Even if the ''Stridhan'' property of a married woman is placed in the custody of her husband or in-laws they would be deemed to be trustees and bound to return the same if and when demanded by her.

Pratibha Rani (supra) further proceeds that in the case of ''Stridhan'' property, 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 an offence of breach of criminal law, he will be liable to punishment for the offence of criminal breach of trust under Sections 405 and 406, Indian Penal Code. In Pratibha Rani (supra) the Supreme Court further proceeds that it cannot be said that once a woman enters her matrimonial home she completely loses her exclusive ''Stridhan'' by the same being treated as joint property of the spouses. In other words, if this view is taken in its literal sense, the consequence would be to deprive the wife of the absolute character and nature of her ''Stridhan'' and make the husband a co-owner of the same. Such a concept is neither contemplated nor known to Hindu Law of ''Stridhan'', nor does it appeal to pure commonsense. Once a married woman enters her matrimonial home, her ''Stridhan'' property does not undergo cash, etc., which are given to the bride, are her exclusive gifts and cannot be touched by the husband except in very extreme circumstances, that is, where the husband is in imprisonment or is in serious distress. Even then the religion and the law enjoin that the husband must compensate the wife and if he cannot do so, he must pay fine to the King, which means that the husband would be liable to penal action under the present law of the land.

Kinds of ''Stridhan'' in the Smritis have been summarised by Mayne at pp. 643 and 644 of Hindu Law, 12th edn. The kinds of ''Stridhan'' enumerated in the Smritis are:

(1) What is given before the nuptial fire, adhyagni;

(2) What a woman receives while she is conducted from her father''s house to her husband''s dwelling, ''adhyavahanika'';

(3) What is bestowed in token of love, ''pritidatta'' or ''bhartrudaya;''

(4) Pritidatta or affectionate present, as defined by Katyayana, is : "whatever has been given to a woman through affection by her mother-in-law or her father-in-law as also wealth termed padavandanika, that is, that which is received by a woman at the time of bowing at the feet of elders.

(5) Gifts made by father, mother or brother; (according to Manu, these are counted as three kinds of stridhana).

(6) Gift subsequent, that is, that which is received from her husband''s family or her father''s family subsequent to marriage (''anvadheyaka'').

(7) Gift on supersession (adhivedanika), A present made to a woman on her husband''s marriage to another wife is the gift on supersession;

(8) Gift by bandhus (bandhudatta), that is, what is given to the bride by the relations of her mother or of her father;

(9) Sulka or the fee which is variously described,

(i) as the gratuity for the receipt of which a girl is given in marriage;

(ii) as being a special present to the bride to induce her to go cheerfully to the mansion of her lord; and

(iii) as what is received as the price of household furniture, conveyance, milch cattle and ornaments.

It would thus, appear that even if it be assumed for the sake of arguments that the husband is a co-owner theft cannot be committed of the property, which is in co-ownership. The main ingredient of theft is that moveable property should be taken away dishonestly. If the wife takes away her ''Stridhan'' property, as alleged in the complaint, then it cannot be said that she has taken it away dishonestly. Furthermore, it has to be observed that a person cannot be said to have committed theft of her own property, even if she is a married woman. On the strength of Pratibha Rani (supra) it has to be held that the property alleged to have been taken away by petitioner No. 1 along with her family members cannot be said to be of exclusive ownership of the complainant-non-petitioner. Offence of theft will be made out only when any moveable property is taken out of the possession of any person without that person''s consent, intending to take dishonestly that property. All the ingredients of theft defined in the Penal Code are totally absent, and it has to be observed that the prosecution of the petitioners on the complaint cannot be maintained.

The contentions of Shri Rakesh Saxena, learned counsel for the non-applicant, are purely of technical nature. Even without filing a revision petition, any citizen can invoke the inherent powers of this Court u/s 482 of the Code of Criminal Procedure in order to save himself from unreasonable prosecution in any Court of law and can always pray to secure the ends of justice. Before parting, it has to be observed that the alleged occurrence is said to have taken place on or about 9-1-1980 and the complaint was, after a long delay, filed on 18-11-1981. Elements of deliberations and consultations seem to be present in this mala fide prosecution. There are glaring legal and procedural defects in the prosecution, which is untenable in law. Furthermore, it has to be observed that there is no chance that the petitioners would be convicted on such material which is on record. Institution and continuation of the prosecution clearly amount to injustice to the petitioner. It has also to be observed that the allegations are of such category, which cannot be said to constitute an offence punishable under the Penal Code. Even if evidence is adduced, it shall manifestly and clearly be inconsistent on the face of the accusation itself.

Consequently, this petition is allowed. To prevent the abuse of the process of the Court and also to secure the ends of justice, I, in exercise of the inherent powers conferred upon this Court u/s 482 of the Code of Criminal Procedure, quash the prosecution of the petitioners in the Court of Chief Judicial Magistrate, Bhind.