Raj Kapoor Dhara aged about 30 Years S/O Gunadhar Dhara R/O Village- Saldih Basti v. 1. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.1866 of 2023 ------ Raj Kapoor Dhara aged about 30 Years S/O Gunadhar Dhara R/O Village- Saldih Basti P.O. & P.S.- Adityapur District- Seraikella- Kharsawan at present residing at Village- Kuliyank P.O.- Bambol P.S.- Baharagora District- East Singhbhum (Jharkhand) … Petitioner Versus 1. The State of Jharkhand
Legal Reasoning
dismissing the Criminal Revision; warranting inference of this Court in exercise of its jurisdiction under Section 482 of the Cr.M.P. 9. Accordingly, this Cr.M.P., being without any merit, is dismissed. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 08th of April, 2024 AFR/ Animesh-Saroj 4 Cr. M.P. No.1866 of 2023
Arguments
2. Priya Patra W/O Sri Raj Kapoor Dhara D/O Bishwanath Patra R/O Village- Hariharpur, Domjuri, P.O. & P.S.- Baharagora District- East Singhbhum (Jharkhand). 3. Gagan Rana S/O Lakhindra Rana R/O Murgaghutu Domjuri Road, Narwa Dam Chowk P.O. and P.S. Potka District East Opposite Parties Singhbhum (Jharkhand) … ------ For the Petitioner For the State For the O.P. No.2 : Mr. Kripa Shankar Nanda, Advocate : Ms. Ruby Pandey, Addl.P.P. : Mr. Rakesh Kr. Sinha, Advocate ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash and set aside the order dated 28.02.2023 passed by the learned Sessions Judge, Seraikella-Kharsawan in Criminal Revision No.27 of 2022 whereby and where under the learned Sessions Judge, Seraikella- Kharsawan confirmed the order dated 22.09.2022 passed by the learned Chief 1 Cr. M.P. No.1866 of 2023 Judicial Magistrate, Seraikella dismissing the complaint being the Complaint Case No.581 of 2021 and dismissed the Criminal Revision. 3. The case of the complainant is that the opposite party No.2 is the legally married wife of the petitioner. After their marriage, the petitioner gifted some jewelries to the opposite party No.2. The opposite party No.2 developed intimacy with the opposite party No.3 who is cited as co-accused in the complaint and deserted the petitioner and is living with the opposite party No.3. There is further allegation that at the time of going away from the house of the petitioner, the opposite party No.2 took away jewelry worth Rs.2,30,000/- Rs.20,000/- cash and a mobile handset. The learned Chief Judicial Magistrate, Seraikella vide its order dated 22.09.2022 considered the fact that jewelries were given to the opposite party No.2 at the time of marriage. The learned Chief Judicial Magistrate, Seraikella considered that the jewelry alleged to be taken by the opposite party No.2 is the Stree-dhan of the accused No.1 cited in the complaint and the mobile and cash of Rs.20,000/- which she has allegedly taken is in the lawful custody of the opposite party No.2 and she is entitled for the use of the same being married with the complainant. Hence, the allegations made, even if are considered to be true in their entirety, still they do not constitute any offence and no criminal liability is attracted in this case against the opposite party No.2 for eloping of the opposite party No.2 with the opposite party No.3 and dismissed and disposed of the complaint under Section 203 of the Cr.P.C. The learned Sessions Judge, Seraikella-Kharsawan in its judgment dated 28.02.2023 in Criminal Revision No.27 of 2022 also considered that the opposite party No.2 of this Criminal Miscellaneous Petition allegedly took away the jewelry given at the time of the marriage and as well as 2 Cr. M.P. No.1866 of 2023 the amount of Rs.20,000/-. The jewelry was her Stree-dhan and the mobile handset and cash of Rs.20,000/- appears to be in lawful custody of the opposite party No.2 received by her at the time of marriage. Hence, she is entitled to use this legally which does not attract any of the ingredients of the offences of the complaint as alleged in the complaint and finding no merit, dismissed the said Criminal Revision. 4. It is submitted by the learned counsel for the petitioner that both the courts below failed to consider that the articles stolen away by the opposite party Nos.2 & 3 is not the Stree-dhan of the opposite party No.2 and erred in considering the ornaments to be the Stree-dhan of the opposite party No.2. Hence, it is submitted that the prayers as made in this Cr.M.P., be allowed. 5. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that the offence punishable under Section 379 of the Indian Penal Code has the following essential ingredients: (i)the accused removed any movable property, (ii) the accused removed the property out of the possession of another person without his consent, (iii) he did so with a dishonest intention as has been held by the Hon’ble Supreme Court of India in the case of K. N. Mehra vs. State of Rajasthan reported in AIR 1957 SC 369. 6. It is a settled principle of law that where a bonafide claim of right exists, it can be a good defence to the prosecution for theft. An act does not amount to theft unless there be not only no legal right but no appearance of colour of a legal rights as has been held by the Hon’ble Supreme Court of India in the case 3 Cr. M.P. No.1866 of 2023 of Chandi Kumar Das Karmarkar & Another v. Abanidhar Roy reported in AIR 1965 SC 585. 7. Now, coming to the facts of the case, undisputedly the opposite party No.2 is the legally married wife of the petitioner. The petitioner has in no uncertain manner mentioned in his statement under solemn affirmation that he gifted the jewelries to the opposite party No.2. So, if the same is considered to be true, then certainly after the gift was effected to the opposite party No.2, then the opposite party No.2 of this Criminal Miscellaneous Petition becomes the owner thereof having lawful custody thereto. The wife of a person can have a legal right or at least a colour of legal right over the property existing in the matrimonial house more so when only the husband and wife live together in that house leading conjugal life. 8. Under such circumstances, in the absence of any specific allegation against the opposite party No.2 of taking the money of the petitioner without any allegation of any dishonest intention, this Court is of the considered view that no gross illegality has been committed by either the learned Chief Judicial Magistrate, Seraikella in dismissing and disposing of the complaint under Section 203 of Cr.P.C or the learned Sessions Judge, Seraikella-Kharsawan in