Smti. Ratna Dusad Vs the State of Assam and Anr.

Heard Mrs. R. Rongmei, learned counsel for the petitioner. Also heard Mr. S.P. Choudhury, learned counsel for the respondent No. 2 and Mr. P.S. Laskar, learned Addl. Public Prosecutor.

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2. By way of this petitioner under Section 482 Cr.PC, the petitioner is seeking quashing of the complaint petition dated 19.07.2017 filed by the respondent No. 2 before the Chief Judicial Magistrate, Cachar, Silchar.

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3. The brief facts of the case is that the respondent No. 2 lodged a complaint on 19.07.2017 before the jurisdictional Chief Judicial Magistrate Court alleging that on 12.12.2016, he was married with the petitioner as per Hindu rites and ritual and at the time of marriage, she disclosed her age as 21 years but after marriage, he came to know that her actual age is 25 years.

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4. It is further alleged that after few days, he came to know her age is not 25 years but 32 years. Thereafter, the petitioner left the house and went to her paternal home. It is further alleged that on 06.07.2017, the petitioner came to the residence of the respondent with Police showing an Order dated 01.07.2017 passedin Case No. 431M/2017 under Section 94 Cr.PC and took away the stridhan articles. Though the respondent No. 2 opposed them not to take away the articles, it is alleged that the petitioner forcefully took away several items, which were owned by the complainant, which were one Hero Super SplenderMotory Cycle-AS-11-L/8760, two numbers of Usha Ceiling Fan and

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some gold ornaments amounting to Rs. 42,850/-.

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5. Thereafter, the Court of JMFC, Cachar, Silchar, after perusing the case records, complaint petition and the statement of the complainant and other witnesses took cognizance of the offence under Sections 380/417/34 IPC against the petitioner. Situated thus, the present criminal petition has been filed for quashing the complaint as well as further proceedings of C.R. Case No. 303/2017 pending before the Court of JMFC, Cachar, Silchar.

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6. Mrs. R. Rongmei, learned counsel for the petitioner submits that a bare perusal of the complaint itself indicates that the petitioner accompanied by Police authorities, on the basis of an order passed by the jurisdictional Magistrate Court under Section 94 Cr.PC had taken away the stridhan articles and hence, no criminal offence whatsoever can be said to be made out on the basis of such averments.

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7. She further submits that the Trial Court, in a most mechanical manner without any application of mind, took cognizance of the offence under Sections 380/417/34 IPC against the petitioner. She accordingly submits that the complaint as well as the further proceedings pending before the Court of JMFC, Cachar, Silchar is liable to be set aside and quashed.

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8. Per contra, Mr. S.P. Choudhury, learned counsel for the respondent No. 2 submits that the petitioner had forcefully taken other items belonging to the respondent No. 2 and hence, a case of theft is clearly made out in the body of the said complaint.

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9. Mr. P.S. Laskar, learned Addl. Public Prosecutor submits that it is apparent

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from the body of the complaint that the Police authorities had accompanied the petitioner on the strength of an order passed by the Magistrate Court under Section 94 Cr.PC and accordingly, no criminal case whatsoever can be said to be made out against the petitioner.

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10. I have given my prudent consideration to the arguments advanced by the learned counsel appearing for the contending parties and have perused the materials available on record.

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11. It appears that the petitioner was married to the respondent No. 2 on 12.12.2016 and accordingly started conjugal life. It further appears that the petitioner being tortured both physically and mentally by the respondent No. 2 and having being finally droven out from the house of the respondent No. 2, she started living in her matrimonial homewhile all the articles including stridhan and those given by her family to the resondent No. 2 were in the house of the respondent No. 2.

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12. It appears thatupon apprehending that the respondent No. 2 is going to sell the said articles for his wrongful gain, the petitioner filed an application being Case No. 431M/2017 before the Magistrate Court under Section 94 Cr.PC for recovery of the listed articles from the custody of the respondent No. 2.

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13. It appears that the Magistrate Court by Order dated 13.07.2017 was pleased to draw a proceedings under Section 94 Cr.PC and was further pleased to direct the jurisdictional Officer-in-Charge to search the house of the respondent No. 2 and recover the listed articles and thereafter, upon verification that the articles actually belongs to the petitioner, to hand over the same to the

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petitioner.

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14. Order dated 13.07.2017 is reproduced, which reads as hereunder:-

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“ORDER

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01/07/2017:- The C/R is taken up in my file. Perused the complt. Petition with affidavit and list of Marriage articles filed by one Smti. Ratna Dusad, D/o. Gopal Dushad, Vill & P.Ó.- Jaiforpur, P.S.- Silchar, Dist- Cachar, Assam against 1. Sujit Dushad, S/o. Sri Dipu Dushad, 2. Dipu Dushad, S/o. Jina Dushad, 3. SobitaDushad, W/o. Dipu Dushad, 4. Miri Lal Dushad, S/o. Unknown, Vill- Buarakhai, P.O.- Silcoorie, P.S.- Silchar, Dist- Cachar, Assam.

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Heard the Id. Lawyer for the 1^st party and the petitioner at length.

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It is stated by the 1^st party that she was married to the 2^nd party as per Hindu rights and rituals on 12/12/2016 and started conjugal life. It is further stated by the 1^st party that she was tortured both physically and mentally by the 2^nd party and finally she has been driven out by the 2^nd party from her matrimonial house keeping all the listed articles and now, the 1^st party petitioner alleged that 2^nd party is trying to misuse and sell off the listed articles for his wrongful gain and as such she prays for recovery of listed articles from the custody of the 2^nd party members.

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From the above, I am satisfied to believe that the activities of the 2^nd party amounts to theft which is an offence and thus attracts provision of sec. 94 Cr.P.C. and as such, I do here by draw up a proceeding U/S 94 Cr. P. C. and direct the C/C of the SilcharP.S. to search the house of 2^nd party members and probable places for recovery of the listed articles from the custody of 2^nd party members and on recovery give zimmaof the same to the petitioner 1^st party only after ensuring that these articles actually belongs to the 1^st party petitioner on observance of all legal formalities with an intimation to this Court on or before date fixed.

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Fixed Date:- 13/07/2017.

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Sd/-J. K. Das, Addl. District Magistrate. Cachar.”

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15. It appears that thereafter on 06.07.2017, the jurisdictional Officer-inCharge visited the house of the respondent No. 2 and after searching the house, took Zimma of the listed articles from the custody of the respondent No. 2 and accordingly, seized the same in the presence of two witnesses, i.e., ProdipDushad and Bijoy Kr. Dushad.

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16. Zimmanama is also reproduced, which reads as hereunder:-

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“Ref: case No. 431 M/17 U/S 94 Cr.P.C.

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I Smti. Ratna Dusad D/O. Gopal Dusad, of Village and P.O. Jaiforpur, P.S. Silchar, District- Cachar, Do here took the Zimma of below descriptive articles which was recovered from the custody of 2^nd party house and seized by the police in connection with above reference case. I shall promise to produce the same if required before the Court as on when called for failing of which I shall be liable to punished as per provision of law.

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Description of Zimma articles-

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Sofa set 3 pes

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Alna 1 pes (wood)

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T. table 1 Pes,,

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Box Palong ,,

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Showcase 1 pes (steel)

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Almirah ,, ,,

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Fridge ,, ,, (Haier co.ltd)

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Bike (Hero Splendor)

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Washing Machine

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T.V. LED 1 pes.

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Tata sky 1 pes.

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Mixture grinder

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Plastic Buckets

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14.Ceiling Fans 3 Nos.

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Pressure Cookers

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Steel buckets

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Aluminum Kolos-2 pes

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Pitol Kolos – 2 ,,

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Pitolthal – 2 ,,

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Steel chara– 1 ,,

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Karahi pital – 1 ,,

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Pitalhata– 1 ,,

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PitalGhoti – 2 ,,

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,, Deg- 1 ,,

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dani – 1 ,,

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,, thal – 2 ,,

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,, glass – 2 ,,

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Prodip stand - 1,,

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,, dhupdani- 1 ,,

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,, ghanta - 1

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Shanka & stand- 1,,

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Wall clock (deluxe)

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Piri wood – 2 ,,

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Tusak- 1,,

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Lep - 1,,

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Bed sheet - 1 pc

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Blanket - ,, ,,

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Mosari ,, ,,

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Balish 2 ,,

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Chunni, sweater, chador, chapel,

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Necklace – 1 pc (GOLD) 42. Bala – 1 pair 43.Churi- 1,, ,, 44.Kaner dul- 1 ,, ,, 45. Ring – 1 ,, (girl) 46 Ring - ,, ,, (boy)

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Witness

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ProdipDushad (28) S/O. Gopal Dushad of Jaiforpur P.S. Silchar, Date- 6/7/17

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Bijoy Kr. Dushad (39) S/O. Lt. JowhorlalDushad P.S. Silchar, Date- 6/7/17 Accepted by me ASI. Pipul Paul of GGR O.P Date- 6/7/17

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Signature of Zimmader

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Ratna Dushad - 30 years D/O. Gopal Dushad of Village - jaiforpur P.S. - Silchar Dist- Cachar (Assam) Date - 6/7/17”

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17. It appears that thereafter on 19.07.2017, the respondent No. 2 filed the

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said complaint alleging that on 06.07.2017, the petitioner came to his house with Police showing an Order dated 01.07.2017 and took away the sridhanarticles. It is further alleged that she also forcefully took away one Hero Super splendor Motor cycle-AS-11-L/8760, two numbers of Usha ceiling fan and some gold ornaments amounting to Rs. 42,850/-, which were owned by the respondent No. 2.

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18. Relevant portion of the complaint petition is also reproduced, which reads as hereunder:-

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“It is respectfully submitted that, on 12/12/2016 1 was married with the above named accused No.1 Smti. Ratna Dushad as per Hindu rites and ritual. After the marriage the complainant and the above named accused person were living together as husband and wife. At the time of marriage the accused No.1 said that her age is 21 years but after marriage came to know that her actual age is 25 years old. After the marriage the accused No.1 by saying due to her official work, almost time stayed in her parental house. The above accused No.1 Smti. Ratna Dushad is an Anganwadi worker of Joyfarpur Block No.2 Anganwadi centre in the Cachar District. After few days the complainant came to know that the age of the accused No.1 is 32 years. The above named accused No.1 on 20/6/2017 left the complainant and went to her paternal home. After the above incident the above named accused persons came to the residence of the complainant with police showing an order dated 01/07/2017 of case No.431M/2017 U/s 94 Cr.P.C. taken away the Stri-dhan articles. The complainant was opposed them not to take away the articles in such way but the accused persons forcefully taken away several items which were owned by the complainant which were enlisted below. The accompanying police personnel were stand as silent viewer.

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It is therefore prayed that kindly take necessary actions as per law and punish the accused persons.

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And recover the enlisted items from the grab of the accused persons.

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One Hero Super splendor Motor cycle-AS-11-L/8760

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Two numbers of Usha ceiling fan.

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Some gold ornaments whose price is approx Rs. 42,850/-“

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19. What transpires from the above is that the jurisdictional Police authorities had taken custody of the articles on the basis of the jurisdictional Magistrate Court’s order dated 01.07.2017.

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20. A perusal of the Zimmanama indicates that the three articles namely, Hero Super Splendor Motor cycle-AS-11-L/8760, two numbersof Usha Ceiling Fan and some gold ornaments claimed to have been taken away by the petitioner in the complaint were also taken into custody by the Police authorities as per the Magistrate Court’s Order dated 01.07.2017. That being so, by no stretch of imagination, offences under Section 380 of IPC, which is ‘theft in dwelling house’ and 417 of IPC, which is ‘punishment for cheating’ can be said to be made out against the petitioner on the basis of such allegations as set out in the complaint, even if the same is accepted to be correct in its face value.

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21. It is thus apparent that the respondent No. 2 with malafide intention in gross abuse of the Court process has filed the instant complaint to harass the petitioner. Therefore, the cognizance taken by the Magistrate Court under Section 380/417 IPC against the petitioner is without any application of mind whatsoever. Hence, continuation of criminal proceeding based on such FIR against the petitioner is totally unjustified.

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22. In view of the above, this Court is of the unhesitant view that the FIR and the complaint and the further proceedings on the basis of such complaint cannot be allowed to go on.

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23. Accordingly, the complaint being C.R.Case No. 303/2017 and further proceedings thereof pending before the Court of Judicial Magistrate 1^st Class, Cachar, Silchar is hereby set aside and quashed.

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24. Criminal Petition stands allowed.

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JUDGE

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Smti. Ratna Dusad v. the State of Assam and Anr.

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Smti. Ratna Dusad v. the State of Assam and Anr.

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