Zora Singh and anr. vs State of Punjab

S.S. Dewan, J.

The petitioners through the present Criminal Miscellaneous application seek to have the First Information Report No. 137 dated 19.10.1981 registered at Police Station Raikot, District Ludhiana, under Ss. 406/494 and 506, Indian Penal Code, quashed.

The facts giving rise to this petition are very few and simple. Gurmail Kaur, sister of Manjit Singh, the first informant, was married in the year 1977 with Zora Singh & in that marriage 5 golden pounds, one scooter, one refrigator and one golden set consisting of necklace, bangles, ring and a pair of earrings were given to Gurmail Kaur as dowry. It is further alleged that for sometime the relations between Zora Singh & Gurmail Kaur were cordial but later on become strained as Zora Singh had returned the 5 golden pounds and the scooter on the ground that, she should bring a car for him otherwise he would leave her at her parent''s house. The efforts to reconcile the parties had failed. Later on, it transpired that Zora Singh got married with one Bhupinder Kaur, daughter of Bakhtwar Singh, resident of village Sherpur, District Sangrur, and out of that wedlock, one female child was born, who died after some time. A Panchayat was taken to the house of Karnail Singh, who got enraged and misbehaved with Manjit Singh and others and proclaimed that he had married his son and they could do whatever they liked. Saying this Karnail Singh threatened them with dire consequences with a rifle and asked them to leave his place.

On the aforesaid facts, the case was registered at Police Station Raikot and after completing the investigation, challan was put in the Court of the Judicial Magistrate, Jagraon. The Magistrate found a prima facie case against the petitioners and accordingly charged them for the said offences. The first information report has now been sought to be quashed by the petitioners.

A Full Bench of this Court in Vinod Kumar Sethi and others v. State of Punjab and another, 1982(1) C.L.R. 638 has held as follows :

"The giving of dowry and the traditional presents at or about time of the wedding, does not in any way raise a presumption that such property is thereby entrusted and put under the dominion of the parentsinlaw of the bride or other close relations so as to come within the ambit of those words as used in sections 405 and 406 of the Code. Nor would the mere factum of bringing the dowry and such other traditional presents into the family home of the husband by itself constitute such entrustment or passing of dominion to the relations or the other members of the joint family of the husband. The mere living together of the couple in the joint family is not a legal equivalent of entrustment per se of the individual property of the wife to the parentsinlaw or the close relations within the family homestead. Any such entrustment or passing of dominion over the dowry to the relations of the husband, therefore, can only be by a subsequent act of conscious volition. Inevitably this has to be matter of particular and specific proof on its own set of facts.

To conclude, it necessarily follows from the aforesaid discussion that the very concept of the matrimonial home connotes a jointness of possession and custody by the "spouses even with regard to the moveable properties exclusively owned by each of them. It is, therefore, inapt to view the same in view of the conjugal relationship as involving any entrustment or passing of dominion over property daytoday by the husband to the wife or vice versa. Consequently barring a special written agreement to the contrary, no question of any entrustment or dominion over property would normally arises during coverture or its imminent break up. Therefore, the very essential prerequisites and the core ingredients of the offence under Section 406 of the Penal Code would be lacking in a charge of criminal breach of trust of property by one spouse against the other. Inevitably, therefore, the purported allegation of breach of trust betwixt husband and wife so long as the conjugal relationship lasts and the matrimonial home subsists, cannot constitute an offence under section 406 of the Penal Code, subject to any special written statement. Equally, as against the close relations of the husband, no facile presumption of entrustment and dominion over the dowry can be raised prima facie and this inevitably has to be by a subsequent conscious act of volition which must be specifically alleged and "conclusively established by proof." Lastly, because of the definition in Section 2 of the Dowry Prohibition Act, the Offence under the said Act cannot come within the ambit of Section 406 of the Indian Penal Code as these cannot stand together on the same set of facts.

The bonds of matrimony, therefore, bar the specter of the criminal breach of trust qua the property of the spouses at the very threshold of the matrimonial home. It cannot enter its hallowed precincts except through the back door of a special written contract to the contrary with regard to such property. Even accepting the first information report, as the gospel truth it would appear that when tested on the anvil of the principles laid earlier the allegations therein cannot amount to entrustment stricto sensu within the meaning of section 405, Indian Penal Code. As has been said earlier there is a jointness of control and possession of the property of the spouses within the matrimonial home which negates the very concept of entrustment by the husband to the wife or the wife to the husband therein. Equally the mere factum of taking the dowry and the traditional presents into the family home of the husband does not and cannot in law constitute entrustment or passing of dominion to either the husband or his close relations."

In view of the above even while accepting the allegations in the complaint, no offence under S. 406, Indian Penal Code, has been made out.

Mr. Aggarwal has strenuously urged that the learned trial Magistrate has no jurisdiction to frame a charge for the offences under Ss. 494/506, Indian Penal Code, in the absence of any valid complaint required to be made to the Magistrate by the complainant under S. 198 of the Code of Criminal Procedure, 1973 (for short, the Code). Mr. G.S. Savra, learned Assistant Advocate General, has nothing to repel this contention. There is substance in the contention raised by Mr. Aggarwal. S. 198 of the Code provides as under :

"198. (1) No court shall take cognizance of an offence punishable under Chapter XX of Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence :

Provided that :

(a) where such person is under the age of eighteen years, or is an idiot or a lunatic or is from sickness or infirmity unable to make a complaint, or is woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person who, with the leave of the Court, make a complaint on his or her behalf;

(b) * * * * * * *

(c) * * * * * * *

With the proviso thereto we are not concerned in the present case. It follows therefrom that the Magistrate can take cognizance of an offence under S. 494 of the Indian Penal Code, provided there is a complaint made by the wife which is admittedly not done in the present case. The charge framed by the learned Magistrate on the basis of the first information report & other documents in respect of an offence under S. 494 Indian Penal Code and the ancillary offence is, therefore, not valid and the same is liable to be quashed. The aggrieved person may file a complaint in respect of the offences under Ss. 494/506, Indian Penal Code, if so advised.

For the reasons aforementioned, this petition is allowed and the First Information Report No. 137 dated 19.10.1981 registered at Police Station Raikot and the proceedings taken thereunder by the trial Magistrate are hereby quashed.