LAWS(ORI)-1990-1-9

MANAS KUMAR DUTTA Vs. ALOKA DUTTA

Decided On January 12, 1990
MANAS KUMAR DUTTA Appellant
V/S
ALOKA DUTTA Respondents

JUDGEMENT

(1.) The facts giving rise to this Criminal Misc. Case may be briefly stated as follows : The opposite party is the legally married wife of the petitioner No. 1 (son of petitioner No. 2) and they were married on 19-11-1985 and they lived a married life till 31-5-1987. Subsequently serious differences arose between them and ultimately the opposite party filed O.S. No. 112 of 1987 in the Court of the Subordinate Judge. Baripada, under Section 13 of the Hindu Marriage Act praying for a decree of divorce and also prayed for a direction to be given to the petitioner No. 1 to return to her the gold and silver articles and other valuables belonging to her as mentioned in plaint schedules A and B. The petitioner No. I filed Matrimonial Suit No. 219 of 1987 against the wife (the present opposite party) for restitution of conjugal rights in the court of the District Judge, Howrah. The opposite party filed criminal case I. C. C. No. 89 of 1988 against the petitioners before the S.D.J.M., Baripada, alleging that as they refused to return the gold and silver ornaments and other valuables belonging to her in spite of repeated demands made by her and misappropriated the same, they rendered themselves liable under Section 406, I.P.C. read with Section 6(2) of the Dowry Prohibition Act. The learned S.D.J.M., after considering the materials placed before him, by his order dated 5-10-1988 took cognizance against the petitioners under Section 406, I.P.C. Being aggrieved by that order the present Criminal Misc. Case is filed for quashing the same.

(2.) The learned counsel for the petitioners contended that the very concept of the matrimonial home connotes a jointness of possession and custody by the spouses even with regard to the movable properties exclusively owned by each of them and so no question of any entrustment or dominion over the property would normally arise during overture and therefore, the very essential pre-requisites and the core ingredients of the offence under Section 406, I.P.C. would be lacking in a charge of criminal breach of trust of property by one spouse against the other. This contention of the petitioners is based on, and fully supported by, Vinod Kumar Sethi v. State of Punjab, AIR 1982 Punj and Hary 872, a Full Bench decision of the Punjab and Haryana High Court. But then, as pointed out by the learned counsel for the opposite party, the said Full Bench decision of the Punjab and Haryana High Court was overruled by the Supreme Court in Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628: (1985 Cri LJ 817). The following observations of the Supreme Court in Pratibha Rani's case are considered relevant and material in the present context and hence quoted below (paras 20 and 21):

(3.) The learned counsel for the petitioners next contended that as the opposite party had prayed for the return of her gold and silver ornaments and other valuables in O. S. No. 112 of 1987 and therefore, as the remedy is available to her in the civil court, if she is entitled to it, the present proceedings filed against the petitioners in the criminal court are misconceived and therefore, liable to be quashed. The answer to this point is found in the following observations of the Supreme Court in the very Pratibha Rani's case (1985 Cri LJ 8 It at p. 824) (supra):