TaxTMI 
TaxTMI 
TaxTMI 
1982 (3) TMI 279
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.... is plain that the marriage did not subsist and on the 18th of April, 1980, Veena Rani respondent addressed an application to the Senior Superintendent of Police, Bhatinda. Therein she alleged that at the time of her marriage she had received substantial presents of ornaments, valuable clothes, furniture and other household articles besides ₹ 21,000/- from her parents and relations as also from her husband and mother-in-law as dowry and in consideration of the marriage. She claimed that all these items of property over which she had absolute control had become her Stridhana. It was further stated that as a dutiful wife and as daughter-in-law she reposed full faith in her husband and her parents-in-law and entrusted all the properties aforesaid to them as detailed in annexures 'A' and 'B' to the application. It was then alleged that after the marriage, all the three petitioners started mal-treating her for extracting more dowry from her parents and made repeated demands from time to time to this effect. When these were not satisfied she was expelled from the house in her wearing appeared and deprived of all the articles of her dowry around January, 1981. Therea....
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....s tracks. In essence the contention was that till the stage of filing a challan in a Court of law is arrived, the arm of the law under S. 482 of the Code is not long enough to reach the statutory investigative right of the police. In nut-shell the argument is that the inherent jurisdiction to quash arises only when the proceedings enter the precincts of the Court of law and not earlier. Particular reliance in this context was placed on the observations of the final Court in Jehan Singh v. Delhi Administration, AIR 1974 SC 1146; Kurukshetra University v. State of Haryana, AIR 1977 SC 2229 and State of Bihar v. J. A. C. Saldanha, AIR 1980 SC 326. 6. There is no gainsaying the fact that the question raised by the learned Additional Advocate General is of obvious significance and not altogether free from difficulty because a penumbral area does seem to exist on the point. However, within this jurisdiction it would be unnecessary to examine the matter afresh on first principles because it is not altogether res integra. The identical point had earlier arisen before a Division Bench to which I was a party in Saral Beopar Association v. State of Haryana, 1970 Cur LJ 720, and the specific ....
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....the aforesaid view has been eroded by the subsequent decisions or observations of the final Court. 7. Now primary reliance on behalf of the respondent-State was on Jehan Singh's case (AIR 1974 SC 1146) (supra) and in particular to the following observations in the penultimate paragraph thereof (para 17) :-- "For the foregoing reasons, we would hold that the petitions under S. 561-A were liable to be dismissed as premature and incompetent. On this short ground, we would dismiss this appeal." On the basis of the aforesaid observations it was sought to be contended that a claim for quashing before the chargesheet is filed under S. 173 of the Code of Criminal Procedure would be both incompetent and premature. 8. I am inclined to the view that the stand is not well-conceived. A closer analysis of the judgment in Jehan Singh's case would disclose that it does not lay down any absolute and inflexible bar against the quashing of a first information report prior to the filing of a charge-sheet. Were it to be so, then the only question calling for enquiry would be the factual one whether the charge-sheet had been filed in Court or not and nothing else. Far from doing so....
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....nstrue these observations in any such abstruse light. It is significant to recall that their Lordships in terms found that the first information report disclosed a cognisable offence and therefore, the police could not refuse to act to the complaint lodged by the University. Further the police had not even commended investigation when the proceedings were quashed by the High Court. In fact the ultimate conclusion that the statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases in a context where the matter had as yet not reached the Court is indicative of the fact that the final Court did not totally and mathematically rule out quashing at the investigation stage. 10. Our attention was then drawn to the recent judgment in State of Bihar v. J. A. C. Saldanha, AIR 1980 SC 326, wherein Desai, J., speaking for the Bench noticed the well-defined and well-demarcated function in the field of crime detection, and its subsequent adjudication, betwixt the police and the Magistrate. After referring to Khwaja Nazir Ahmad's case (AIR 1945 PC 18) (supra), it was observed that the power of the police to investigate into a cognizable offence is ordin....
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....gainst the quashing of proceedings by the High Court in its inherent jurisdiction at the investigative stage or to place the later process beyond the pale of judicial scrutiny. 13. Having opined as above, I must strike the strongest note of caution in this context. Though I have held that the High Court would have the inherent jurisdiction to quash the investigative process in a proper case, it does not mean that this power is to be exercised indiscriminately. The affirmance of such a power is one thing but using it like the proverbial 'bull in a China shop' is altogether another. It calls for a strong reminder that even where the proceedings have reached the Court by way of a charge-sheet or in the case of the existence of a complaint before it well defined limitations for quashing the same were authoritatively spelt out in R. P. Kapur v. State of Punjab, AIR 1960 SC 866. It is broadly within the parameter spelt out thereby (though they are not absolutely exhaustive) that the power to quash proceeding has to be exercised even with regard to cases pending in the Court. It follows that even a more stringent criterion would apply in quashing a first information report and th....
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....oever then the statutory mandate for investigation would be lacking and non-existent. It, however, bears repetition that the phraseology of 'reason to suspect the commission of an offence' has to be construed liberally in favour of the investigating agency. Both on principle and on the relevant provisions of the Code. I am inclined to hold that where, the recorded first information report, when accepted as true, still discloses no cognizable offence whatsoever then this would attract the inherent jurisdiction of the High Court. 16. However, one cannot jump to the conclusion that merely because the first information report does not disclose a cognizable offence, it must necessarily be quashed along with the consequential investigation. What has to be sharply born in mind is the oft-repeated adage that the first information report is not an encyclopaedia of the investigation into a criminal offence. Nor is it a inflexible pre-condition for entering into an investigation. It has been authoritatively pointed out in Emperor v. Khawaja Nazir Ahmad, AIR 1945 PC 18, as follows:-- ".......................But, in any case, the receipt and recording of an information report is ....
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....ich it commences does not disclose a cognizable offence. It would be only after some investigation is conducted that the police will be in a position to find out whether it is a case of natural death, suicide or culpable homicide or murder. If the contention, that unless the police is able to satisfy the Court that it is in possession of information about the commission of a cognizable offence, it cannot proceed to investigate, is accepted it would lead to the conclusion that in a case like the one that has been cited above, the Court must step in and stop the investigation. This in my opinion is not warranted by the provisions of Section 561-A, Criminal Procedure Code, nor by any other provision of the Code..................." 17. It necessarily follows from the above that if the first information report discloses no cognizable offence whatsoever, it would give the court jurisdiction for entering into an enquiry for quashing the proceedings. However, this is no warrant for holding that either because a defective first information report has been recorded or at the time of commencing the investigation, the information was cryptic, yet the subsequent investigation must be quas....
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....visions. Consequently, the information in the possession of the police or as recorded in the first information report, must prima facie be a pointer to the commission of a cognizable offence. Once that condition is satisfied, the courts must as a general rule abstain from interfering in the investigative process, and the rule in Khwaja Nazir Ahmed's case (AIR 1945 PC 18) (supra) would be at once attracted to such a situation. There is an obvious danger that stopping an investigation in this context, would be far from promoting the ends of justice and may inhibit the police from bringing serious criminals to book. 19. The question nevertheless remains--whether the hands of the Court are totally tied where the first information report purports to disclose the commission of a cognizable offence? It bears repetition that generally speaking in such a case, the court must not trench upon the lawful power of the police to investigate into cognizable offences. Nevertheless, even in such a case, if it can be established beyond all doubt that the investigation is mala fide and amounts to a pure harassment and abuse of the statutory process, the court is not totally barred from interferi....
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....he compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction." xxx xxx And again, ".......................... Considerations justifying the exercise of inherent powers for securing the ends of justice naturally vary from case to case and a jurisdiction as wholesome as the one conferred by Section 482 ought not to be encased within the strait-jacket of a rigid formula." 20. To conclude, I see no blanket bar against the quashing of a first information report and the consequent investigation (even before a charge-sheet is filed in Court), provided that the requisite pre-conditions formulated above for the exercise of the power stand satisfied. Without being exhaustive, those may be briefly summarised as under:-- (i) when the first information report, even if accepted as true, discloses no reasonable suspicion of the commission of a cognizable offence; (ii) when the materials subsequently collected i....
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....y Mr. K. S. Thapar, that a Hindu wife by the very factum of her marriage cannot own or possess property separately from her husband during the subsistence of the marriage. The tenor of this argument, in essence, is that the property of the wife is that of her husband or, in any case, it can only be jointly owned by her with her husband. Resting on this stance the argument is that a wife's dowry would equally be either her husband's property or at the highest jointly owned by both. In nutshell, the stand is that the Hindu wife cannot own anything separately and individually during coverture. 22-A. It appears to me that the aforesaid contention merits only to be noticed and rejected and it is unnecessary to extend the compliment of an elaborate and exhaustive refutation thereto. It seems untenable and indeed odd in the extreme to contend that in the late twentieth century, a Hindu wife is not capable of holding any property separately from her husband. Acceding to such a proposition would be harking back to the dark ages when the wife herself was considered to be a chattel and property of her husband and inevitably could not own any property herself and certainly not against....
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....st throw in this context raised in the alternative was that even if dowry and traditional presents at the marriage were Stridhana, they ceased to be so, the moment she entered the house of her husband or the parents-in-law and would become joint property thereafter. 24. I am afraid that the aforesaid contention of the learned counsel and its corollary have equally no lags to stand on. Once it is held that a Hindu wife can own property in her own right, then it is purely a question of fact whether the dowry or the traditional presents given to her, were to be individually owned by her or had been gifted to the husband alone or jointly to the couple. One finds nothing in the ordinary dictionary meaning of the 'dowry' and even in the ancient concept of Hindu Law with regard to the traditional presents given at the wedding which can possibly bar the exclusive ownership of the bride in such property. For instance jewellery meant for the personal wearing of the bride, wedding apparel made to her measures specifically, cash amounts put into a fixed deposit in a bank expressly in her name, or a motor car presented to her and duly registered in her name; are obvious example of dowr....
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....n of this fact and the individual ownership of the Hindu wife with regard thereto is manifest from the well-settled rule that Stridhana cannot be attached for the debts of her husband. Equally well-acknowledged is it that the husband has no right of alienation to that which is the Stridhana of his wife. These facets highlight the clear-cut recognition by the oldest treatises of Hindu law with regard to individual ownership of her separate property by a Hindu wife. It is, therefore, wholly idle to contended today that articles of dowry and traditional presents given at the time of the wedding cannot be the individual property of a Hindu wife. 26. Now once it is so held that article of dowry and traditional presents given at the wedding are owned by the bride individually in her own right, then one fails to see how by the mere fact of her bringing the same into her husband's or parents-in-law's household, would forthwith divest her of the ownership thereof. Separate and individual right to property of the wife therein cannot vanish into thin air the moment the threshold of the matrimonial home is crossed. To say that at that point of time she would cease to own such property....
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....is would be so also as the traditional presents etc. given by the husband and parents-in-law to the bride at or about the time of wedding would pass into her ownership. Similarly as regards the first category of articles meant for the exclusive use of the bride, she would retain her pristine ownership therein irrespective of her entry and presence in the matrimonial home or that of her parents-in-law. As regards category (ii) it is purely a question of fact whether the articles of common use and enjoyment were given and intended to be the exclusive property of the bride or otherwise. I am inclined to the view that the normal presumption would be that the ownership in such like article would vest in the Hindu wife unless it can be clearly established to the contrary that these were given expressly for the joint ownership of the couple. Dowry of this nature would be commonly used and enjoyed with the implied leave and licence of the wife. Mere joint enjoyment thereof does not necessarily divest a Hindu wife of her exclusive ownership or to make it joint property by the mere factum of such use. This seems to be so on general principles of law. An individual owner of property, apart fr....
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..... Nor am I able to see how Section 27 of the Hindu Marriage Act even remotely advances the case of the petitioners. It is in the following terms: "S. 27. In any proceeding under this Act, the Court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time or marriage, which may belong jointly to both the husband and the wife." The plain words of the section far from aiding the stand of the petitioners in fact tend to undermine the same. The express words of the provision refer to property 'which may belong jointly to both the husband and the wife'. It nowhere says that all that all the wife's property belongs jointly to the couple or that Stridhana is abolished and she cannot be the exclusive owner thereof. Indeed, in using the above terminology, the statute expressly recognises that property which is exclusively owned by the wife is not within the ambit of Section 27 of the Hindu Marriage Act and it is concerned only with that property presented at or about the time of the marriage, and belonging jointly to the couple. I have already adverted to this aspect that certain articles of dowry ....
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.... or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument of under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property." 33. This provision declares in no uncertain terms that the property of a female Hindu is to be her absolute property and what is of no particular relevance here is that the explanation pointedly refers to any property given before, at or after her marriage and further any property held by her as Stridhana has been brought within the ambit of her absolute ownership. To contend in face of this provision that Hindu women cannot be absolute owners of their property or are not so with regard to dowry or stridhana appears indeed to be the proverbial crying for the moon. The aforequoted provisions of Section 14 indeed show the concern and the object of the law to remove all fetters on the ownership of prop....
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....hat the definition of the dowry under the aforesaid Act would exclude entrustment of property which is a pre-requisite of the offence under Section 406 of the Indian Penal Code. 37. To deal with the aforesaid contention, it becomes necessary to notice the provisions of Section 2 of the Dowry Prohibition Act (the Haryana amendment makes only marginal changes therein whilst the Punjab Act has left the same untouched):-- "2. Definition of dowry. In this Act, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before or after the marriage as consideration for the marriage of the said parties, but does not include dower or mehr in the case of persons to whom the Muslim Personal Law (Shariat) applies. Explanation I:--For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not b....
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....ct was, therefore, designed for and moulded to the peculiar object of nipping this extortionate evil in the bud. This special definition, therefore, has no relevance to the word 'dowry' as understood in common parlance and its ordinary dictionary meaning to which reference has been made earlier. 38. It calls for pointed notice that the Dowry Prohibition Act does not, in any way, bar the traditional giving of presents at or about the time of the wedding, which may be willing and affectionate gifts by parents and close relations of the bride to her. Such presents or dowry given by the parents is, therefore, not at all within the definition of the aforesaid statute. Indeed, this traditional giving of presents at or about the time of wedding is an accepted practice which finds mention in the oldest of Hindu scriptures and is continued today with a greater zeal. Consequently, dowry as commonly understood is something different and alien to the peculiar definition thereof in the Dowry Prohibition Act. A voluntary and affectionate giving of dowry and traditional presents would thus be plainly out of the ambit of the particular definition under the Act and once that is so the rest....
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....eration is the price for the promise and, therefore, such property cannot be deemed even remotely to have been entrusted or dominion passed over it to the other. The necessary result, therefore, is that the same set of facts allegedly constituting an offence under the Dowry Prohibition Act cannot possibly come within the ambit of Section 406, Indian Penal Code. This would be plainly a contradiction in terms. As pointed out above, one offence is rested on property forming the consideration for the marriage as such, whilst the other visualises the entrustment and passing of dominion over property individually owned. The offences under the Dowry Prohibition Act and under Section 406, I.P.C. thus cannot stand together on the same set of facts. 40. Now having held as above that a Hindu wife can exclusively own and hold property including her dowry and traditional presents given at the wedding, the decks are cleared for tackling the core question posed at the very outset. What indeed is the true legal relationship of the husband and wife qua the property individually owned by each within the four walls of the matrimonial home? Does the wife stand entrusted with the property belonging to....
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....wo spouses would stand in a kind of a formal relationship where each is entrusted with or has bee passed dominion over the exclusive property of the other. Rather it appears to me that the conjugal relationship and the existence of a matrimonial home automatically obviates any such hyper-technicalities of an entrustment or dominion over property. It seems inapt to conceive the relationship as a day-to-day entrustment of the property of the husband to the custody of the wife or vice versa of the property of the wife to the husband. The matrimonial home so long as it subsists presumes a jointness of custody and possession by the spouses of their individual as also of their joint properties which cannot be divided by any metaphorical line. In a homely metaphor in the context of the modern commercialised world it has been said that the marriage relationship is not one of "I and You limited" but that of "We limited". Whilst the law undoubtedly now clearly recognises the individual ownership of property by the husband and wife, the necessary assumption in law, therefore, would be that during the existence or even the imminent break up of the matrimonial home the conce....
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.... above, that property within the matrimonial home is in the joint possession and custody (despite rights of the individual ownership therein) then these very pre-requisites of entrustment or dominion over property cannot be easily satisfied betwixt the spouses inter se. It is indeed well-settled that the very concept of the jointness of possession and custody would rule out the entrustment or dominion over property betwixt such joint custodians. In line with the concept of joint ownership where the possession of one joint owner is deemed to be the possession all, the analogy is to be extended that the existence of the property within the matrimonial home raises a presumption that both the husband and the wife are in possession thereof jointly and not that each one has entrusted his exclusive property to the custody of the other. Subscribing to the latter view would be both overly hyper-technical and subversive of the very concept of marriage, the matrimonial home and the inevitable mutual trust which conjugality necessarily involves. 45. It is obviously because of the aforesaid legal position and this inarticulate premise underlying the same that the learned counsel for the State ....
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....ore fundamental nature. Its fundamental nature is this that the very conception of partnership precludes possibility of entrustment or dominion of the partnership property by one partner as against the other and, therefore, precludes any possible operation of the crime under Section 406, Penal Code, of criminal breach of trust by one partner against the other in respect of the partnership property." The aforesaid view has been expressly referred to and approved by their Lordships in Velji Raghavji v. State of Maharashtra, AIR 1965 SC 1433, with the following added observations (at pp. 1435-36) :-- ".......Every partner has dominion over property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property has over his property. But it is not dominion of this kind which satisfies the requirements of S. 405. In order to establish 'entrustment of dominion' over property to an accused person the mere existence of that person's dominion over property is not enough. it must be further shown that his dominion was the result of entrustment. Therefore, as rightly pointed out by Harris, C. J., the prosecution must establish that....
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....nality with regard thereto until the title to such property is clearly and specifically established. If the civil remedy seems to be adequate betwixt partners, during the subsistence of partnership there is no reason why it would not equally be so betwixt spouses in an existing matrimonial home during the subsistence of the conjugal relationship. As already referred to, apart from the civil remedy under the general law, added provisions exist in this context under S. 27 of the Hindu Marriage Act buttressed by the procedural provisions of O. 32-A of the Code of Civil Procedure. 47. In view of the above, it would be equally untenable to hold that either the desertion or the expulsion of one of the spouses from the matrimonial home would result in entrusting dominion over the property belonging to the other so as to bring the case within the ambit of this pre-requisite under S. 405, Indian Penal Code. The joint custody and possession once established would thereafter exclude either express entrustment or the passing of dominion over the property. It was rightly argued that if an irate husband or wife walks out from the matrimonial home in a huff, this cannot constitute an entrustment....
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.... enjoyment of certain articles of dowry and traditional presents, by the other members of a joint family with the leave and licence of a Hindu wife, cannot have the effect of extending the jointness of control and custody of the couple to undefined and unreasonable limits. Consequently, there is no reason to assume that the mere user or enjoyment of the dowry by other members of the household, would have the effect of passing the possession and control thereof jointly to the Hindu Undivided Family as such. 50. In the aforesaid context, pointed reference must be made to the opening word 'whoever' of S. 405 of the Code to highlight that the criminal law does not take ken of any proximity of relationship for the offence of breach of trust. Whoever would include within its ambit the parents-in-law, the brother-in-law, sisters-in-law (and other close relations of the husband) of a Hindu wife provided that the basic ingredients of entrustment or passing of dominion over her separate individual property stands fully satisfied. Apart from the peculiarity of the conjugal relationship and the consequent sharing of the matrimonial home, the existence of the blood relationship of the ....
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.... to come within the ambit of those words as used in Ss. 405 and 406 of the Code. Nor would the mere factum of bringing the dowry and such other traditional presents into the family home of the husband by itself constitute such entrustment or passing of dominion to the relations or the other members of the joint family of the husband. The mere living together of the couples in the joint family is not a legal equivalent of entrustment per se of the individual property of the wife to the parents-in-law or the other close relations within the family homestead. Any such entrustment or passing of dominion over the dowry to the relations of the husband, therefore, can only be a subsequent act of conscious volition. Inevitably this has to be a matter of particular and specific proof on its own set of facts. 53. In the aforesaid context, the three categories referred to in paragraph 28 may well be recalled. Inevitably those articles of the dowry given as presents to the husband or the parents-in-law and other members of his family after having been brought in the joint family and delivered to its recepients may pass into the ownership of the latter far from being entrusted to them as such.....
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....lows from the aforesaid discussion that the very concept of the matrimonial home connotes a jointness of possession and custody by the spouses even with regard to the moveable properties execlusively owned by each of them. It is, therefore, inapt to view the same in view of the conjugal relationship as involving any entrustment or passing of dominion over property day-to-day by the husband to the wife or vice versa. Consequently, barring a special written agreement to the contrary, no question of any entrustment or dominion over property would normally arise during coverture or its imminent break-up. Therefore, the very essential prerequisites and the core ingredients of the offence under S. 406 of the Penal Code would be lacking in a charge of criminal breach of trust of property by one spouse against the other. Inevitably, therefore, the purported allegations of breach of trust betwixt husband and wife so long as the conjugal relationship lasts and the matrimonial home subsists, cannot constitute an offence under Section 406 of the Indian Penal Code, subject to any special written agreement. Equally, as against the close relations of the husband, no facile presumption of entrustm....
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....an offence is jointly made out against the three petitioners under Section 406 read with S. 34, Indian Penal Code, and a synopsis of the steps taken during the course of the investigation till it was stayed under the orders of the Court is given in the affidavit. 59. Adverting now to the first information report what first catches the eye is para 3 thereof in the following terms:-- "That at the time of my marriage I received substantial presents of ornaments, valuable clothes, furniture and other house-hold articles besides ₹ 21,000/- from my parents, relations, my husband and mother-in-law as consideration of the marriage." It would be plain from the above that on respondent No. 2's own showing substantial parts of the alleged dowry are said to have been given by the relations of her husband and mother-in-law. It is equally with regard to these that the charge of entrustment is laid at the door of the husband and his relations as also her mother-in-law. These allegations, however, look even more incongruous in the context of the underquoted allegation in paragraph 5 of the complaint to the effect that the alleged entrustment was done on the very day of the w....
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....legations therein cannot amount to entrustment stricto sensu within the meaning of Section 405, Indian Penal Code. As has been said earlier there is a jointness of control and possession of the property of the spouses within the matrimonial home which negates the very concept of entrustment by the husband to the wife or the wife to the husband therein. As has been held above in paragraph 50 the factum of the marriage itself does not in any way raise a presumption that dowry is thereby entrusted to the husband or the parents-in-law or put under their dominion per se. It bears repetition that the allegation herein is that the entrustment jointly to the husband and the parents-in-law took place on the wedding day itself. Equally the mere factum of taking the dowry and the traditional presents into the family home of the husband does not and cannot in law constitute entrustment or passing of dominion to their the husband or his close relations. Lastly, the admitted fact to this dowry having been kept in the matrimonial home for well-nigh two years (from the alleged date of entrustment on the wedding day of 28th of January, 1979) which inevitably brings in the strongest presumption of t....