Smt. Gurmeet Kaur v. State of Uttaranchal & Anr.

Heard Smt. Prabha Naithani, Advocate for the petitioner and Mr. Amit Bhatt, Addl. GA for the State. None appeared for the respondent no. 2 despite being served personally. By means of this petition, moved under Section 482 of Code of Criminal Procedure, 1973 (for short, CrPC), the petitioner has prayed for quashing the order dated 11.8.2006 passed by Additional Sessions Judge/FTC, Kashipur, District Udham Singh Nagar in Criminal Revision No. 30/2006 Nek Chand v. Smt. Gurmeet Kaur & Ors., whereby the order dated

1.3.2006 passed by the Additional Civil Judge (Jr. Div.)/J.M., Ist Class, Kashipur framing the charge against the respondent no. 2 for the offence punishable under Section 406 IPC has been quashed. Facts, in brief, are that the petitioner and the respondent no. 2 married to each other about 20 years ago as per Hindu rites and the parents of the petitioner had given several articles to the respondent no. 2 as stridhan to their daughter. After sometime, respondent no. 2 and his parents started harassing the petitioner for more dowry and on 29.7.2002, she was finally ousted from the house and since then she is living with her parents. Thereafter the petitioner had time and again requested the respondent no. 2 to return her stridhan but the respondent no. 2 did not return her stridhan. On 12.9.2002, the petitioner sent a legal notice to the respondent no. 2 with request to return her stridhan but despite sufficient service of the notice, respondent no. 2 did not return her stridhan. Feeling aggrieved, petitioner instituted a criminal complainant case against the 2 respondent no. 2 before the Magistrate on 23.10.2002. Learned trial court recorded the statement of the complainant under Section 200 CrPC and the statements of the witnesses under Section 202 CrPC and summoned the respondent no. 2 and after recording the evidence, came to the conclusion that a prima facie case under Section 406 IPC is made out against the respondent no. 2 and accordingly framed the charge against him under Section 406 IPC vide order dated 1.3.2006. Feeling aggrieved, the respondent no. 2 preferred a Criminal Revision, which was allowed by the Additional Sessions Judge/FTC, Kashipur, District Udham Singh Nagar vide order dated 11.8.2006. Hence, this petition has been filed by the petitioner/complainant against the aforesaid order dated

11.8.2006. Learned Counsel for the petitioner argued that the impugned order dated 11.8.2006 passed by the Additional Sessions Judge/FTC, Kashipur is not as per law inasmuch as there is ample evidence against the respondent no. 2 that he is not returning the stridhan of the petitioner. I find force in the argument of learned Counsel for the petitioner due to the reason that averments made in the complaint are corroborated by the statement of the complainant and other documentary and oral evidence adduced on record. Furthermore, petitioner had also given a legal notice to the respondent no. 2 on 12.9.2002 to return her stridhan. The said notice was served on him, but even then respondent no. 2 neither replied to the said notice nor returned her stridhan. Therefore, the observation of the learned Additional Sessions Judge/FTC, Kashipur that the respondent no. 2 is not at fault as the petitioner herself is not going to bring her stridhan from the house of the respondent no. 2 is not correct and justified in the facts and circumstances of the case. Petitioner had time and again demanded her stridhan. She also gave a legal notice and thereafter lodged the complaint against the respondent no. 2 in this regard. Allegations made in the complaint find corroboration from the documentary and oral evidence adduced on record. Hence, learned Additional Civil Judge (Jr. Div.)/J.M., Ist Class, Kashipur had rightly framed the 3 charge for the offence punishable under Section 406 IPC against the respondent no. 2 vide order dated 1.3.2006. Therefore, impugned order dated 11.8.2006 passed by the Additional Sessions Judge/FTC, Kashipur is not correct and justified and the same is liable to be quashed and set aside. Reliance has been placed on the judgment delivered by the Hon’ble Apex Court in the case of Soma chakravarty v. State (Th. CBI) reported in 2007 AIR SCW 3683, wherein it has been held that if on the basis of material on record the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Whether, in fact, the accused committed the offence, can only be decided in the trial. Having considered the arguments advanced by learned counsel for the petitioner; perusal of complaint, order dated

1.3.2006 whereby the charge has been framed against the respondent no. 2, statement of the complainant and other documentary and oral evidence available on record and in view of the legal proposition (supra), I am of the view that a prima facie case under Section 406 IPC is made out against the petitioner and the charge under Section 406 IPC has been rightly framed by the trial court against the respondent no. 2. For the reasons recorded above, the petition is allowed. Order dated 11.8.2006 passed by the Additional Sessions Judge/FTC, Kashipur, District Udham Singh Nagar in Criminal Revision No. 30/2006, Nek Chand v. Smt. Gurmeet Kaur & Ors. is hereby quashed and set aside. The order dated 1.3.2006 passed by the Additional Civil Judge (Jr. Div.)/J.M., Ist Class, Kashipur in Criminal Case No. 78/2003, Smt. Gurmeet Kaur v. Nek Chand @ Neki under Section 406 IPC is hereby affirmed. Interim order dated 5.9.2006 stands vacated. (Dharam Veer, J.) 4

10.8.2010 PRABODH