Sukhpal Singh and Another vs State of U.P. and Another

S.C. Agarwal, J.—This revision u/s 397/401 of the Code of Criminal Procedure is directed against order dated 22.1.2010 passed by Additional Chief Metropolitan Magistrate, Court No. 7, Kanpur Nagar in Criminal Complaint Case No. 681 of 2009, Ram Dutt Yadav v. Shiv Kumar alias Hari Nandan and another, whereby the revisionists Shiv Kumar alias Hari Nandan and Sukhpal Singh were summoned to face trial u/s 406, I.P.C. A prayer has also been made for quashing the entire proceedings in the aforesaid criminal case.

Heard Sri R.P. Yadav, learned Counsel for the revisionists, learned A.G.A. for the State and Sri K.N. Yadav, learned Counsel for opposite party No. 2 - the complainant.

Counter affidavit has been filed on behalf of opposite party No. 2, but No. rejoinder - affidavit has been filed on behalf of the revisionists.

A criminal complaint was filed by opposite party No. 2 against the revisionists with the allegations that Anju Yadav, daughter of opposite party No. 2 was married with revisionist No. 2 Shiv Kumar alias Hari Nandan, who happens to be the son of revisionist No. 1 Sukhpal Singh, on 11.5.2006. At the time of engagement, a sum of Rule 20,000 cash, utensils, clothes, sweets and fruits totaling about Rule 27,000 was handed over to the revisionists in February, 2005. At the time of tilak, Rule 50,000 cash, motorcycle Hero Honda and utensils, fruits, sweets, dry fruits and clothes worth Rule 47,000 were given as dowry. At the time of marriage, Rule 3.50 lacs was spent. After marriage, the revisionists and other members of their family used to harass the daughter of opposite party No. 2. On 25.7.2007, anonymous information was received by opposite party No. 2 that his daughter has died. The complainant - opposite party No. 2 went to the house of the revisionists and found his daughter dead. Since his daughter died in unnatural circumstances, F.I.R. under Sections 498A, 304B, I.P.C. and 3/4 Dowry Prohibition Act was lodged on 25.7.2007 at 12: 30 p.m. at police station Kalyanpur against the accused persons including the revisionists and after the submission of charge - sheet, the case is still pending. The complainant asked the revisionists many times to return the cash and goods given to them at the time of engagement, tilak and marriage and to compensate all the marriage expenses, but the revisionists did not pay any heed and refused to return the articles given in the dowry, which have been mentioned in a list accompanying the complaint. The daughter of the complainant died issue - less and, therefore, the complainant was entitled to return all the articles given as dowry.

The complainant examined himself u/s 200, Cr. P.C. and two witnesses namely Shyam Singh Yadav and Rajesh u/s 202, Cr.P.C. Learned Magistrate, by impugned order, found a prima facie case u/s 406, I.P.C. and summoned the revisionists to face trial. Hence, this revision.

Learned Counsel for the revisionists submitted that the impugned order is illegal, arbitrary and against the provisions of law and No. prima facie case is made out against the revisionists. A false and fabricated complaint was made by opposite party No. 2 only to harass and humiliate the revisionists. The main contention of learned Counsel for the revisionists is that father of the deceased is not entitled to get the stridhan of the deceased and it is the husband of the deceased, who is entitled to get the stridhan after her death and No. offence u/s 406, I.P.C. is made out. The revisionist No. 2 is still in jail, whereas revisionist No. 1 was granted bail in the case relating to dowry death of the daughter of the complainant.

Learned A.G.A. and learned Counsel for the complainant supported the impugned order and submitted that as per the provisions of Section 6 of the Dowry Prohibition Act, 1961 (hereinafter referred to as the ''Act'') the daughter of the complainant was entitled to receive the articles given as dowry and in case of her death before receiving the same, her heirs are entitled to receive it, but if such woman dies within seven years of her marriage otherwise than due to natural causes, such property shall be transferred to her parents, if she has No. children. A list of articles given as dowry is annexed as Annexure CA - 1 to the counter - affidavit.

Section 6 of the Act provides as under:

Dowry to be for the benefit of the wife or 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 its receipt; or

(c) if the dowry was received when the 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.

(2) If any person fails to transfer any property as required by Sub - section (1) within the time limit specified therefore or as required by Sub - section (3), he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years or with fine which shall not be less than five thousand rupees, but which may extend to ten thousand rupees or with both.

(3) Where the woman entitled to any property under Sub - section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being:

Provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall if she has No. children, be transferred to her parents, or if she has children, be transferred to such children and pending such transfer, be held in trust for such children.

(3A) Where a person convicted under Sub - section (2) for failure to transfer any property as required by Sub - section (1) or Sub - section (3) has not, before his conviction under that Sub - section, transferred such property to the woman entitled thereto or, as the case may be, her heirs, parents or children, the Court shall, in addition to awarding punishment under that Sub - section, direct, by order in writing, that such person shall transfer the property to such woman, or as the case may be, her heirs, parents or children within such period as may be specified in the order, and if such person fails to comply with the direction within the period so specified, an amount equal to the value of the property may be recovered from him as if it were a fine imposed by such Court and paid to such woman, as the case may be, her heirs, parents or children.

Admittedly, the daughter of the complainant died within seven years of her marriage and she was issue - less. As per statement of Dr. Subir Katiyar in S.T. No. 325 of 2008 (Annexure CA - 3), the death of daughter of complainant was homicidal. In these circumstances, in view of Section 6(3A) of the Act, her parents are entitled to receive the stridhan and dowry articles given at the time of marriage and husband is not entitled to the same. Therefore, it cannot be said at this stage that offence u/s 406, I.P.C. is not made out.

The impugned summoning order has been passed by the Magistrate on the basis of material available on record. There is a prima facie case against the revisionists. I do not find any error, illegality or perversity in the impugned summoning order.

Revision is devoid of merit and is liable to be dismissed and is accordingly dismissed.

However, in the facts and circumstances of the case, it is directed that if the revisionist No. 1 Sukhpal Singh surrenders before the Magistrate concerned within a period of three weeks from today and applies for bail, his prayer for bail be considered by the courts below on the same day.