Gauhati High Court
Crl.Pet./69/2021 on 28 March, 2025
GAHC010019592021
2025:GAU-AS:3902
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRIMINAL PETITION NO.69/2021
1. Rojibon Nessa
D/o Rohim Ali
2. Rohima Bibi
W/o Rohim Ali
3. Rohim Ali
S/o Kolia Sheikh
All are residents of Village:
Dhupdhara, P.O. & P.S:
Dhupdhara,
District: Goalpara, Assam.
.......Petitioners
-Versus-
Rejabuddin Ahmed
S/o Late Kandura Sheikh
Resident of Khamar Manikpur,
P.O & P.S: Krishnai,
District: Goalpara, Assam.
.......Respondent
Page 1 of 26
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioner(s) :Mr. N. Chaudhury, Advocate.
For the Respondent(s) :Mr. A. Ahmed, Advocate.
Date of Hearing :28.03.2025.
Date of Judgment :28.03.2025.
JUDGMENT & ORDER (ORAL)
Heard Mr. N. Chaudhury, learned counsel
appearing for the petitioners. Also heard Mr. A. Ahmed,
learned counsel appearing for the respondent.
2. This criminal petition is filed under Section 482 of
Cr.P.C, 1973 seeking quashing of complaint filed by the
respondent on 22.08.2019 being CR Case No.251/2019
under Sections 406/506/34 of IPC and the order of
cognizance taken by the Additional Chief Judicial
Magistrate, Goalpara by order dated 17.02.2020 under
Sections 406/506/34 of IPC against the
accused/petitioners.
3. The brief facts of the case is that the complainant
filed a complaint on 22.08.2019 against the petitioner No.1
i.e. wife, petitioner No.2 i.e. mother-in-law and petitioner
No.3 i.e. father-in-law before the Magistrate Court alleging,
Page 2 of 26
inter-alia, that the petitioner No.1 at the instance of the
petitioner Nos. 2 and 3 demanded certain articles from the
respondent and the respondent for the sake of upholding
peace had brought the same through his hard earned
money.
4. It is the further alleged in the complaint that the
petitioner No.1 after a few days started to threaten the
respondent to end their marriage and all of a sudden on
19.07.2019 ousted him from the house of the petitioners.
It is further alleged that when the respondent went to the
house of the petitioners to try to reconcile the matter, the
petitioner Nos. 2 and 3 verbally abused the respondent.
5. Accordingly, the statement of the complainant as
well as the witnesses were recorded. After perusing the
complaint petition as well as the statement of the
complainant and the statement of the witnesses, the
Magistrate Court on 17.02.2020 took cognizance under
Section 406/506/34 of IPC against the accused/petitioners.
Situated thus, the present criminal petition has been filed
seeking quashing of the complaint as well as the
cognizance taken by the Magistrate Court.
6. Mr. N. Chaudhury, learned counsel appearing for
the petitioners submits that it is amply evident on the
reading of the allegations set out in the FIR that no
ingredients of Section 406 of IPC is made out even if the
allegations are taken to be correct at their face value.
Page 3 of 26
7. He further submits that similarly the allegations as
regards alleged threat as set out in the complaint is also
not sufficient enough to constitute the offence under
Section 506 of IPC. He further submits that from the
complaint as well as the material collected by the
prosecution, it is apparent that the respondent has lodged
the complaint after receiving the talaknama from the
petitioner No.1. He accordingly submits that in the
backdrop of such facts, it is amply evident that the
complaint has been lodged with mala-fide intention and
personal grudge solely to harass the petitioner No.1 and
her parents.
8. In support of the aforesaid submissions he relies
upon the principle Nos. 5 and 7 enunciated by the Apex
Court in the case of State of Haryana & Ors. Vs.
Bhajan Lal & Ors. reported in 1992 Supp (1) SCC 335
and also upon the decision of the Apex Court in the case of
Deepak Gaba & Ors. Vs. State of Uttar Pradesh &
Anr. reported in 2023 3 SCC 423.
9. He accordingly submits that the instant complaint
is a total abuse of the Court process and the order of the
Magistrate Court taking cognizance under Section
406/506/34 of IPC is totally mechanical and without any
application of mind whatsoever and therefore, the
impugned order of the Magistrate Court is liable to be set
aside and quashed.
Page 4 of 26
10. Per contra, Mr. A. Ahmed, learned counsel
appearing for the respondent submits that it is apparent
from the averments set out in the FIR that the respondent
with his hard earned money has procured the household
items including mobile phone and gold ornaments which
the wife after throwing him out from the house and issuing
a talaqnama has refused to return the same to him and
therefore the ingredients of Section 406 are clearly being
made out against the accused/petitioners.
11. He further submits that wife being the custodial of
those articles, the entrustment is constituted. He further
submits that the averments in the complaint as regards
threatening to the effect that if the respondent makes any
future attempt of retrieving the articles, it would result in
his death is sufficient enough to constitute an offence
under Section 506 of IPC. He further submits that it is
specifically averred in the complaint that the petitioner
Nos. 2 and 3 has verbally abused the complainant and
therefore a criminal offence is clearly made out and hence
the order of the Magistrate Court taking cognizance of the
said offences warrants no interference from this Court.
12. I have given my prudent consideration to the
arguments advanced by both the learned counsels
appearing for the contending parties and have perused the
material available on record. I have also considered the
case laws cited at the bar.
Page 5 of 26
13. Apt at the outset to refer to the complaint, which
is reproduced hereunder for ready reference:-
“TRANSLATED COPY OF THE COMPLAINT
Sl. No. 248
CHIEF JUDICIAL MAGISTRATE, GOALPARA
Memo No : CR 251/19
complainant: Rejabuddin Ahmed
S/o : Late Kandura Sheikh
Resident of: Khamar Manikpur
Police Station:Krishnai
District: Goalpara
Name of Accused: (1) Rojibon Nessa D/o Rahim Ali
W/o Rejabuddin Ahmed
(2) Rohima Bibi W/o Rohim Ali
(3) Rohim Ali S/o Unknown
All are residents of Dhupdhara,
P.O. & P.S. -Dhupdhara,District: Goalpara
Date of Occurrence: 3/8/2019
Place of Occurrence: House of the accused.
Sections: 406/506/34 IPC
Name of witness(es):
1. Tahidul Ali S/o Late Phuluddin Ali
2. Azirul Ali S/o Isab Ali
Page 6 of 26
3. Rana Ahmed S/o Late Alimuddin
All are residents of Khamar Manikpur, P.S. Krishnai,
District – Goalpara.
It is the submission of the Complainant that Accused
No.1 is the wife of the Complainant. Accused No.2 is
the mother-in-law and Accused No.3 is the father-in-
law of the Complainant. On 7-10-18, the Complainant
married the Accused No.1 and moved into the house of
his in-laws in order to stay with them. After their
marriage, the couple lived peacefully for approximately
2 (two) months, however, the Accused No.1 thereafter
started demanding the below-mentioned articles from
the Complainant as per the ill advice of her mother and
father, i.e., Accused No.2 and 3. The Accused No.1
threatened the complainant to withdraw from his
company as a wife if he failed to procure the
demanded articles. The Complainant for the sake of
maintaining the marriage procured the demanded
articles one by one by means of his hard-earned
money. The household remained peaceful for 2-3 days
after receipt of the articled which were demanded.
Thereafter, the Accused No. 1 again started to threaten
the Complainant of ending their marriage through
various means. With no intent to continue with the
marriage the Accused No.1 on 19/07/2019 ousted the
Complainant of their house and also threw clothes and
other belongings out of the house. The Complainant
was forced to leave after he was thrown out of the
house. The Complainant with the intention of
reconciling his marital ties on 3/8/19 went to the
house of the father of the Accused No.1 along with the
witnesses and asked the Accused No.1 to reconcile
and continue as a family. But the Accused Nos. 2 and
Page 7 of 26
3 upon hearing such pleas of the Complainant became
furious and verbally abused the Complainant. The
Complainant asked to take back the aforementioned
articles acquired by as the Accused No.1 did not want
to continue with the marriage but the Accused No.1 did
not allow him to do so and further obstructs any future
attempt of the Complainant to retrieve the articles. The
Complainant is further threatened that any attempt to
act otherwise would result in his death and saying so
made him leave the place along with the witnesses.
The articles given by the Complainant are precious and
essential. The articles will be misappropriated if left in
the possession of the Accused persons. Hence, it has
become important to recover the articles from the
possession of the Accused persons. Accused No.1 has
prepared a Notarised Talaqnama (divorce deed).
Photocopy of the same has been annexed herewith.
It is therefore prayed that Your Honour after perusing
the records and through necessary witnesses and
inspections may be graciously pleased to pass an
order directing the recovery of the articles from the
possession of the Accused persons.
22-8-19
The articles under the possession of the Accused
persons:
1. One Godrej made of steel worth Rs. 9,000/-
2. One Showcase made of steel worth Rs. 7,000/-
3. (sofa set) worth Rs. 15,000/-
4. Ulna worth Rs. 2,000/-
5. One centre table made of steel worth Rs. 4,000/-
6. One Almirah (made of steel) worth Rs. 7,000/-
Page 8 of 26
7. One mobile handset worth Rs. 9,500/- (Model No.
OPPOA83)
8. Gold Ornaments worth Rs. 6,000/- (advance)”
14. Apparent reading of the aforesaid complaint that
it is alleged by the complainant that after his marriage with
the petitioner No.1, he stayed in her house with her
parents, i.e petitioner No. 2 and 3 and during the time of
the marriage she demanded few articles. It appears that
he accordingly purchased the such articles being steel
godrej, steel showcase, sofa set, ulna, steel centre table,
steel almirah, mobile handset and gold ornaments worth
Rs. 6,000/- from his hard earned money. It appears that
later on the petitioner No.1 expressed her desire not to
continue with the marriage and throw him out from their
house on 19.07.2019. It further appears that after being
thrown out from the house, on 03.08.2019 he went to their
house and asked the petitioner No.1 to reconcile their
marriage and continue living as a family, but the petitioner
Nos. 2 and 3 verbally abused him. It appears that since the
petitioner No.1 expressed her desire not to continue with
the marriage, he asked her to return the articles which he
had bought, however, the petitioner No.1 refused to allow
him to take these articles and further threatened him that
in case he makes any future attempt to take these articles,
it would result in his death. It further appears that the
petitioner No.1 has served a talaqnama (divorced deed) to
him. It appears that accordingly, he filed the complaint forPage 9 of 26
direction for recovery of the articles from the possession of
the accused/petitioners.
15. It appears that the Magistrate Court after
perusing the said complaint as well as the deposition of the
witnesses took cognizance of the complaint under Section
406/506/34 of IPC against the accused/petitioners.
16. Apt to reproduce the order dated 17.02.2020
hereunder for ready reference:-
“ORDER-SHEET
C.R. Case No.251/2019
17-02-2020
Complainant Rejabuddin Ahmed is present.
Today is fixed for necessary order on complaint
petition.
Perused the C/R including the complaint petition,
statement of the complainant recorded under section
200 CrPC and the statement of witnesses under
section 202 CrPC. Heard learned counsel for the
complainant.
On such perusal and hearing I find prima-facie
materials of offence under section 406/506/34 of IPC
against the accused persons Rojibon Nessa, Rahima
Bibi, Rohim All. Accordingly, cognizance is taken
against the accused persons under section
406/506/34 of IPC.
Issue summons to accused persons
Complainant to take steps.
Fix 26-03-2020 for appearance.
Page 10 of 26
Addl Chief Judicial Magistrate,
Goalpara”
17. In order to constitute an offence under Section
405 of IPC, the word ‘entrusted’ in 405 of IPC is relevant
and unless there is entrustment, there can be no offence
under Section 405 of IPC.
18. Apt to reproduce Section 405 and 406 of IPC is
reproduced hereunder for ready reference:-
“405. Criminal breach of trust.-Whoever, being
in any manner entrusted with property, or with
any dominion over property, dishonestly
misappropriates or converts to his own use that
property, or dishonestly uses or disposes of that
property in violation of any direction of law
prescribing the mode in which such trust is to be
discharged, or of any legal contract, express or
implied, which he has made touching the discharge
of such trust, or wilfully suffers any other person
so to do, commits ‘criminal breach of trust’.
[Explanation [1].-A person, being an employer [of an
establishment whether exempted under section 17
of the Employees’ Provident Funds and
Miscellaneous Provisions Act, 1952 (19 of 1952), or
not] who deducts the employee’s contribution from
the wages payable to the employee for credit to a
Provident Fund or Family Pension Fund
established by any law for the time being in force,
shall be deemed to have been entrusted with the
amount of the contribution so deducted by him andPage 11 of 26
if he makes default in the payment of such
contribution to the said Fund in violation of the
said law, shall be deemed to have dishonestly
used the amount of the said contribution in
violation of a direction of law as aforesaid.][Explanation 2.-A person, being an employer, who
deducts the employees’ contribution from the
wages payable to the employee for credit to the
Employees’ State Insurance Fund held and
administered by the Employees’ State Insurance
Corporation established under the Employees’
State Insurance Act, 1948 (34 of 1948), shall be
deemed to have been entrusted with the amount of
the contribution so deducted by him and if he
makes default in the payment of such contribution
to the said Fund in violation of the said Act, shall
be deemed to have dishonestly used the amount of
the said contribution in violation of a direction of
law as aforesaid.]
406. Punishment for criminal breach of trust.-
Whoever commits criminal breach of trust shall be
punished with imprisonment of either description
for a term which may extend to three years, or with
fine, or with both.”
19. The basic requirements to bring home the
accusation under Section 405 of IPC are the requirements
to prove conjointly (i) entrustment and (ii) whether the
accused was actuated by dishonest intention or not,
misappropriated it or converted it to his own use to the
detriment of the persons who entrusted it. Thus, unless
such averments showing entrustment and fraudulent
Page 12 of 26
misappropriation is set out in the complaint, no offence
under Section 406 can be made out.
20. Reading of the aforesaid averments made in the
complaint, even if they are taken at their face value to be
true, the same does not disclose entrustment and or
fraudulent misappropriation by the accused/petitioners.
Mere use of the word ‘misappropriation’ in the FIR is not
sufficient to constitute such an offence. It is apparent
reading of the articles alleged to have been not returned
by the accused/petitioners are mere household items which
a husband purchases during the continuance of the
marriage for living comfortably together as husband and
wife. It further appears that the complainant has given a
mobile phone and gold ornaments worth Rs. 6,000/- to the
petitioner No.1 during their marriage. By no stretch of
imagination, it can be said that if the wife gives divorce to
the husband, without returning such items upon the
husband demanding the same, a case of criminal breach of
trust is constituted against the wife. In fact, it is clear that
such allegations are made in the complaint purely with the
intention to harass the accused/petitioners for throwing the
respondent out of her house and for divorcing him.
Therefore, no case under Section 406 is made out.
21. This brings me to the offence under Section 506
of IPC. Apt to refer to the definition of criminal intimidation
as provided in Section 503 of IPC and the punishment for
Page 13 of 26
criminal intimidation as provided in Section 506 of IPC for
ready reference:-
“503. Criminal intimidation. -Whoever threatens
another with any injury to his person, reputation or
property, or to the person or reputation of any one in
whom that person is interested, with intent to cause
alarm to that person, or to cause that person to do
any act which he is not legally bound to do, or to omit
to do any act which that person is legally entitled to
do, as the means of avoiding the execution of such
threat, commits criminal intimidation.
Explanation. A threat to injure the reputation of any
deceased person in whom the person threatened is
interested, is within this section.
506. Punishment for criminal intimidation. –
Whoever commits, the offence of criminal intimidation
shall be punished with imprisonment of either
description for a term which may extend to two years,
or with fine, or with both;
If threat be to cause death or grievous hurt, etc.
-And if the threat be to cause death or grievous hurt,
or to cause the destruction of any property by fire, or
to cause an offence punishable with death or
[imprisonment for life], or with imprisonment for a
term which may extend to seven years, or to impute,
unchastity to a woman, shall be punished with
imprisonment of either description for a term which
may extend to seven years, or with fine, or with
both.”
Page 14 of 26
22. Reading of the aforesaid provisions, it appears
that the basic ingredient to constitute an offence of
criminal intimidation is the intention to cause alarm to the
complainant by threatening with any injury to his person,
reputation or property, or to the person or reputation of
anyone in whom that person is interested and or with
intent to cause alarm to that person and or to cause that
person to do any act which he is not legally bound to do
and or to omit to do any act which that person is legally
entitled to do.
23. Reference is made to the decision of the Apex
Court Madhushree Dutta (supra) reported in 2025 0
SSC 172, which is reproduced hereunder for ready
reference:-
“34. This Court had the occasion to examine the
ingredients of Sections 503 and 506 of the IPC in
Manik Taneja and Another v. State of Karnataka &
Anr., (2015) 7 SCC 423, where it was observed as
follows:
’11. xxxxxxxxxxxx A reading of the definition of
‘criminal intimidation’ would indicate that there must
be an act of threatening to another person, of causing
an injury to the person, reputation, or property of the
person threatened, or to the person in whom the
threatened person is interested and the threat must
be with the intent to cause alarm to the person
threatened or it must be to do any act which he is not
legally bound to do or omit to do an act which he is
legally entitled to do.’Page 15 of 26
35. In the present case, the complaint does not
specifically attribute any threats or intimidation to the
second accused. Therefore, ingredients of Section 506
of the IPC, prima facie, are not made out against him.
The argument that the first accused acted at the
behest of the second accused is untenable, as Section
34 of the IPC, which imposes vicarious liability in
criminal matters, has not been applied in this case.
37. Before an offence of criminal intimidation to be
made out against the first accused, it must be
established that she had the intention to cause alarm
to the complainant. A review of the alleged threat
reveals that the complainant is primarily alleging
illegal termination, which constitutes a civil dispute,
rather than criminal intimidation. It is also the
appellants’ case, which has not been disputed by the
complainant, that the complainant has filed a
reference before the labour court challenging her
termination and seeking reinstatement along with
back wages. Given these circumstances and the
materials on record, the ingredients of Section 506 of
the IPC, prima facie, are not disclosed against the
first accused too.
24. Turning back to the facts of the present case, apt
to reproduce the initial deposition of the respondent made
under Section 200 Cr.P.C.
“On Oath,
On 07.102018, my marriage was solemnized with
Rojibon Nessa. I started residing at the house of my
father-in-law, Rahim Ali. While residing there, I
bought household articles namely Godrej, showcase,
Dunlop, “Ulna”, bed, mattress and blanket, one tablePage 16 of 26
fan, one ceiling fan, gas cylinder set. On 22.07.2019,
my wife gave me divorce through Court proceedings.
On 03.05.2019, I along with Tahidul Ali. Azirul Ali,
Rana Ahmed and a few others went to the house of
the Accused and asked them to return the articles.
They did not return the articles and issued life threats
to me. The Accused, Rahima Bibi is my mother-in-law.
My witnesses:
Tahidul Ali, Azirul Ali, Rana Ahmed”
25. Reading of the aforesaid deposition, it appears
that the respondent has deposed that while he was
residing in the house of his in-laws with his wife, i.e
petitioner No.1, he bought household articles namely
godrej, showcase, dunlop, ulna, bed, mattress and blanket,
one table fan, one ceiling fan, gas cylinder set and after his
wife divorced him through Court proceeding on
22.07.2019, he along with one Tahidul Ali and few others
went to the house of the accused/petitioners and asked
them to return the articles, but they refused to return the
articles and issued life threat to him.
26. Initial deposition of Tahidul Ali made under
Section 200 of Cr.P.C, which is also reproduced hereunder
for ready reference:-
“On oath.
I know the complainant Rejabuddin Ahmed. I know
the accused persons. About one year ago the
complainant got married with accused No.1 as per
social customs. Thereafter, the complainant started
residing at the house of the accused persons asPage 17 of 26
Ghar Juwal. As per the demand of the accused
No.1 the complainant purchased a lot of household
articles such as Showcase, Almirah, Bed etc. Few
days after purchasing this articles Rejabuddin
Ahmed was divorced by his wife. Rejabuddin
returned to his own house. On 03-08-2019
Rejabuddin along with me and Rana visited the
house of the accused persons to bring back the
articles purchased by him but, they refused to
return the articles.”
27. Apparent reading of the aforesaid deposition that
the said witness has not mentioned the allegation of threat
as stated to have been given by the accused/petitioner to
the respondent when they visited their house to bring back
the articles. He simply deposed that the
accused/petitioners refused to return the articles.
28. Be that as it may, this Court at this stage cannot
go into the reliability or genuineness or otherwise of the
allegations made in the complaint/FIR. The test is to take
the allegation made in the FIR at their face value and
accepting the same and in its entirety, whether a prima-
facie offence is made out or not against the
accused/petitioners. The principles for quashing of
complaint/FIR is well settled. Apt to reproduce the
principles enunciated by the Apex Court in the case of
Bhajan Lal (Supra), which is reproduced hereunder for
ready reference:-
“102. In the backdrop of the interpretation of the
various relevant provisions of the Code under ChapterPage 18 of 26
XIV and of the principles of law enunciated by this
Court in a series of decisions relating to the exercise
of the extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code which
we have extracted and reproduced above, we give the
following categories of cases by way of illustration
wherein such power could be exercised either to
prevent abuse of the process of any court or otherwise
to secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined and
suffi-ciently channelised and inflexible guidelines or
rigid formulae and to give an exhaustive list of myriad
kinds of cases wherein such power should be
exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case
against the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do
not disclose a cog-nizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or com-plaint and the evidence collected in
support of the same do not disclose the commission of
any offence and make out a case against the
accused.
Page 19 of 26
(4) Where, the allegations in the FIR do not constitute
a cog-nizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis
of which no pru-dent person can ever reach a just
conclusion that there is suffi-cient ground for
proceeding against the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to
the institution and con-tinuance of the proceedings
and/or where there is a specific provision in the Code
or the concerned Act, providing effica-cious redress for
the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding
is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge.”
29. Apparent reading of the aforesaid principle No.1
that in the event, the allegation made in the FIR or the
complaint even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any
offence or make out a case against the
accused/petitioners, the Court is entitled to quash such
complaint/FIR. That apart, under principal No.5 even in a
Page 20 of 26
given case, where the allegation made in the complaint/FIR
are so absurd and inherently improbable on the basis of
which no prudent man can ever reach a just conclusion
that there is sufficient ground for proceeding against the
accused/petitioner, the Court is entitled to quash such
complaint/FIR. Further, under principal No.7, where a
criminal proceeding appears to have been manifestly
attended with mala-fide and or where the proceeding is
maliciously instituted with ulterior motive for wreaking
vengeance on the accused and in the view to spite him due
to private and personal grudge, the Court is entitled to
quash the complaint/FIR.
30. It be worthwhile to mention that whenever an
accused person comes before the Court invoking the
inherent jurisdiction under Section 482 of Cr.P.C to get the
complaint/FIR or the criminal proceedings quash essentially
on the ground that such proceedings are manifestly
frivolous or vexatious or instituted with the ulterior motive
for wreaking vengeance, the Court owes a duty to look into
the complaint/FIR with little more closely.
31. In fact, while looking into the averments made in
such complaint/FIR, it is imperative to also look into the
material collected in the course of investigation and the
other attending circumstances emerging from such
material over and above the averments made in the
complaint/FIR.
Page 21 of 26
32. In the instant case, the case made out by the
complainant against the accused/petitioner No.1 and her
parents, i.e petitioner Nos. 2 and 3 is for non-returning the
articles which he had purchased while living as husband
and wife at her house after being thrown out from the
house and being divorced.
33. In the context of an Indian Society, it is
imperative for a husband to maintain his wife during the
time of marriage. Thus, during the course of such
marriage, a husband purchases various household items
etc. and also gives gift to his wife. As such, in the event, if
such marriage is over, non-returning of such items cannot
give rise to criminal prosecution.
34. Reference is made to paragraph 5 of the decision
of the Apex Court in the case of State of Andhra
Pradesh Vs. Golconda Linga Swamy reported in
(2004) 6 SCC 522, which is reproduced hereunder for
ready reference:-
“5. …Authority of the court exists for advancement of
justice and if any attempt is made to abuse that
authority so as to produce injustice, the court has
power to prevent such abuse. It would be an abuse of
the process of the court to allow any action which
would result in injustice and prevent promotion of
justice. In exercise of the powers court would be
justified to quash any proceeding if it finds that
initiation or continuance of it amounts to abuse of the
process of court or quashing of these proceedings
would otherwise serve the ends of justice. When noPage 22 of 26
offence is disclosed by the complaint, the court
may examine the question of fact. When a
complaint is sought to be quashed, it is
permissible to look into the materials to assess
what the complainant has alleged and whether
any offence is made out even if the allegations
are accepted in toto.”
35. Reading of the aforesaid decision, it appears that
when the Court is considering the prayer for quashing a
complaint, it is permissible to look into the materials
collected by the prosecution to assess what the
complainant has alleged and whether any offences is made
out, even if the allegations are accepted to be true.
36. Reference is also made to paragraph 6 and 7 of
the decision of the Apex Court in the case of R P Kapur vs
State of Punjab reported in AIR 1960 SC 866, which is
reproduced hereunder for ready reference:-
“6. In R.P. Kapur v. State of Punjab, AIR 1960 SC
866: 1960 Cri LJ 1239, this Court summarised some
categories of cases where inherent power can and
should be exercised to quash the proceedings: (AIR p.
869, para 6)
(i) where it manifestly appears that there is a legal
bar against the institution or continuance e.g. want of
sanction:
(ii) where the allegations in the first information report
or complaint taken at its face value and accepted in
their entirety do not constitute the offence alleged;
Page 23 of 26
(iii) where the allegations constitute an offence,
but there is no legal evidence adduced or the
evidence adduced clearly or manifestly fails to
prove the charge.
7. In dealing with the last category, it is
important to bear in mind the distinction
between a case where there is no legal evidence
or where there is evidence which is clearly
inconsistent with the accusations made, and a
case where there is legal evidence which, on
appreciation, may or may not support the
accusations. When exercising jurisdiction under
Section 482 of the Code, the High Court would
not ordinarily embark upon an enquiry whether
the evidence in question is reliable or not or
whether on a reasonable appreciation of it
accusation would not be sustained. That is the
function of the trial Judge. Judicial process, no
doubt should not be an instrument of oppression, or,
needless harassment. Court should be circumspect
and judicious in exercising discretion and should take
all relevant facts and circumstances into
consideration before issuing process, lest it would be
an instrument in the hands of a private complainant
to unleash vendetta to harass any person needlessly.
At the same time the section is not an instrument
handed over to an accused to short-circuit a
prosecution and bring about its sudden death…..”
37. Reading of the aforesaid decision, it appears that
the Apex Court has held that judicial process should not be
an instrument of operation or needless harassment. In
Page 24 of 26
other words, the Magistrate Court should be circumspect
and judicious in exercising discretion and should take all
relevant facts and circumstances into consideration before
taking cognizance of a criminal offence, otherwise, it would
be an instrument in the hands of a private complaint to
unleash vendetta to harass any person needlessly. It is
obvious that at the same time, quashing petition cannot be
used as an instrument to short-circuit a prosecution and
bring about its sudden death. In other words, the Court
must cautiously examine the facts to ascertain whether a
criminal offence is made out or not.
38. In the instant case, it is apparent from the above
that the allegation made in the complaint is totally absurd
and inherently improbable and is manifestly attended with
mala-fide intention. Hence, I am of the unhesitant view
that the instant case clearly falls within principle nos. 1, 5
and 7 as laid down by the Apex Court in Bhajan Lal
(Supra).
39. The order of the Magistrate Court taking
cognizance under Section 406 & 506 of IPC on the basis of
such averments where the basic ingredients of 406 are
lacking on the face value appears to be a mechanical
approach without any application of mind. Undoubtedly,
the Magistrate Court is not required to go into the
genuineness of the allegation made in the complaint/FIR,
but none the same a Magistrate Court is required to apply
its mind to the averments set out in the complaint/FIR as
Page 25 of 26
well as the initial deposition submitted by the prosecution
in order to initiate criminal proceeding against the
accused/petitioners.
40. Therefore, I have no hesitation that the order of
the Magistrate Court taking cognizance under Section 406
& 506 of IPC is totally erroneous.
41. In the backdrop of the aforesaid, I am of the
unhesitant view that the instant complaint is a gross abuse
of the Court’s process. Hence, the criminal petition
succeeds.
42. Accordingly, the impugned order of the Magistrate
Court dated 17.02.2020 is hereby set aside. Resultantly,
the criminal proceeding arising from the CR Case No.
251/2019 is also hereby quashed. Ordered accordingly.
43. It is needless to be clarified that the observation
made in this judgment is only in the context of the facts
and circumstances of the instant case.
44. Resultantly, the criminal petition stands allowed.
45. Interim order, if any, stands vacated.
JUDGE
Comparing Assistant
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