ARCHANA GUPTA Vs. ASHOK KUMAR GUPTA

JUDGEMENT

(1.) A criminal complaint Under Section 406 IPC read with Section 6 of Dowry Prohibition Act was filed by the applicant in the Court of Spl. Chief Judicial Magistrate Allahabad against the opposite parties No. 1 to 4. The learned Magistrate after recording statements under Section 200 and 202 Cr. PC. passed orders summoning the accused persons opposite partyNo. 1 Ashok Kumar, husband under Section 6 of Dowry Prohibition Act. He had not passed any order under Section 406 IPC. No notice were issued against the other three accused persons. Being aggrieved by the said order of summoning of only husband and that too under Section 6 of the Dowry prohibition Act, a revision was filed before the learned Sessions Judge Allahabad. The learned Sessions Judge dismissed the revision by order dated 3.6.83. It was held by the learned Sessions Judge that once dowry has been taken by the father and other, they should also be prosecuted under Section 6 of the Dowry Prohibition Act cannot be accepted. The Court below relied on a case reported in 1978 Crl. L.J., 1362 A.P. (P.T.S. Saibaba and Another v. B.B. Mangatyaru and Ors.) and observed that under Section 6 of the Dowry prohibition Act it was obligatory on the part of the person who has received to transfer it to the woman. He can transfer it at the place where the woman is residing. If he fails to do so, a woman gets a cause of action for filing a complaint at the place where it should have been transferred to her. The learned Court below further observed that whenever the question of dowry arises It is clear that the husband who gets the dowry. In that connections, no doubt father some time takes part. It was held that father cannot be summoned under Section 6 of the Dowry prohibition Act. The learned Court below completely ignored to consider the allegation about the charge of Section 406 IPC levelled against the accused persons. The property which was gifted to the wife applicant continued to her Strldhan property. If the Stridhan property Is not returned to the lady, she was justified In launching a prosecution under Section 406 IPC. The question about the entrusting of Stridhan to the husband or in law was considered In 1985 Cr. L.J. 817 by the Supreme Court in Pratibha Rant v. Suraj Kumar. The Supreme Court was considering a case in which a complaint under Sections 403 and 406 IPC filed on behalf of the wife for misappropriation of the Stridhan property against the husband. The prosecution was quashed in a proceedings under Section 482 Cr. P.C. The Supreme Court of India was pleased to observe that it was not proper to quash the proceedings in the complaint case by the High Court unless the proper opportunity to prove the case of the wife about the misappropriation of the Stridhan property was given to her. It is now well settled that Stridhan property entrusted to the husband continues to be woman's Stridhan property and the husband is bound to return the same when demanded. This aspect of the matter was not at all considered by the Court below. It is true that at the time the revision was decided, the judgment of the Supreme Court was not pronounced. However legal position should have been examined. The judgment of the Court below is completely silent on the point. The judgment impugned dated 3.6.83 passed by the Sessions Judge, Allahabad and order dated 8.4.83 passed by the Spl. Chief Judicial Magistrate, Allahabad in complaint case Smt. Archana Gupta v. Ashok Kumar Gupta and Ors.s in Criminal RevisionNo. 218 of 1983 and Criminal case No. 13 of 1983 respectively, are set aside. The case is remanded to the Court of Chief Judicial Magistrate, Allahabad to proceed with the case in accordance with law afresh after giving die opportunity to the party to lead further evidence. Since it is an old case, the Court below is directed to decide the case expeditiously.

(2.) THE petition under Section 482 Cr. P.C. is allowed.