NETRAPAL GIRI Vs. ARVIND KUMAR GIRI

JUDGEMENT

(1.) PALOK Basu, J. Netrapal has filed this petition under Section 482 Cr. P. C. for quash ing of a complaint giving rise to case No. 293 of 1983 under Section 457/380, I. P. C. pending in the court of VI Additional Judicial Magistrate, Bulandshahr.

(2.) IT appears that Arvind Kumar Goswami, a practising lawyer in district Bulandshahr, has preferred the complaint against the applicant under Sections 380, 457 and 406, I. P. C. IT will be interesting to refer to the allegations made therein because basically it is those allegations which will determine whether the order of the Magistrate summoning the applicant under Sections 457/380 I. P. C. can be justified or not. Translated into English, the relevant portion of the complaint would read thus: "i was sitting at my house around 6. 00 p. m. on 27. 2. 83 and talking about domestic matters with Gajraj Singh when Netrapal Giri, s/o unknown who is married in the applicant's village Rangpur came and said: "vakil Saheb, how are you? To-night I will stay at your house because it is quite late now. " Because of the pre-existing acquaintance I relied upon him and permitted the said man to stayjn my bedroom. "the complainant slept at about 10. 00 p. m. and on getting up at 6. 00 a. m. he found that the said man was not in the room and that an almirah was found open in which he had kept on 27. 2. 83 a sum of Rs. 1,200. 00 after counting at and an H. M. T gold watch which were missing. The complainant enquired about the said guest from the other members of the family. They said that they do not know. He may have taken the cash and the watch. The aforesaid act of the said man would fall under Sections 380/457/406, I. P. C. which he has done intentionally. When the complainant went to lodge a F. I. R. at the police station it was not taken down, hence he forwarded an application to the S. I. Bulandshahr under registered cover. "it is, therefore, requested that that said man be proceeded with in accordance with law and this court has jurisdiction. " Sd. Arvind Kumar Goswami 1/3/1983 3. Taking up the discussion of the complaint allegations it may be noted that the permission to sleep in the bedroom was voluntary act of the complainant. Therefore, there is no question of Section 457 I. P. C. being attracted to the present case. No entrustment by hand or by gesture of any valuables or cash was made to the applicant by Arvind Kumar and, therefore, no case under Section 406 I. P. C. was even disclosed. Left thus to judge whether the aforesaid allegations should constitute an offence under Section 380 I. P. C. or not, a close scrutiny of the complaint has to be made. As it is, Arvind Kumar Goswami allegedly slept at about 10p. m. identical is the statement of the complainant under Section 200 as well as that of his witness Meghraj Singh Giri under Section 202 Cr. P. C. IT may be incidentally mentioned that Meghraj Singh Giri happens to be the father of the com plainant. His other witness mentioned in the complaint, Gajraj Singh, has not been examined. IT may be noted that nobody has seen the applicant taking away anything. IT was bedroom of the complainant himself, which obviously is inside the house and all others had access to the room. Assuming that the applicant had stayed and had left the house sometimes in the morning at about six before the complainant had got up, the applicant may not have awakened the complainant, for, he may not have thought it necessary. Under the circumstances there is nothing to connect the applicant with the alleged missing of the H. M. T. Watch and the sum of Rs. 1200. 00 as alleged in the complaint which itself conveys only a suspicion of the complainant. 4. A few other facts may be usefully noted. The applicant has described himself to be the Zonal President of the Hydro Electricity Employees Union at Agra and has further said that he was at Lucknow in connection with a Zonal Meeting on 26, 27 and 28. 2. 83. The applicant is resident of Brindaban (Mathura) and has his in-law's house in village Rangpur, district Bulandshahr. The applicant's father-in- law Visheshwar Dutt Giri is having litigation with Arvind Kumar Goswami, the complainant who is a lawyer of about 2 year's standing. In the counter affidavit the presence of the accused-applicant in Lucknow for the meeting on 26, 27 and 28. 2. 83 and about the litigation between Visheshwar Dutt Giri and Arvind Kumar have been denied. The other allegations have been ad mitted. 5. As it is, there was absolutely no likelihood of the applicant reaching the complainant's house in that night for permission to stay overnight as his own in-laws' house was admittedly in the neighbourhood. This part of the story does not appear truthful even remotely and it is impossible to comprehend why the applicant should not have gone to stay in his own in-laws' house and should have visited the complainant's house. Therefore, the possibility of the complaint having been filed due to some ulterior motives is apparent. As stated above, none of the ingredients of the sections of I. P. C. for which the applicant has been summoned, is made out from the complaint and its con tinuance would thus be an abuse of the process of the court. 6. In view of the aforesaid discussion, this petition succeeds and is hereby allowed. The compaint and further proceedings in Case No. 293 of 1983 of the Court of VI Addl. Judicial Magistrate, Bulandshahr, are quashed. Appeal allowed. .