1998 Supreme(Cal) 119

High Court Of Calcutta
DIBYENDU BHUSAN DUTTA
AJOY KR.GHOSH - Appellant
Versus
SMT.KAJAL GHOSH - Respondent
Crl. Revision 2070  Of  1996
Decided On : 03/16/1998

The determination of the properties given at the time of marriage by the bride's father falls within the jurisdiction of a Criminal Court.

Headnote:

CRIMINAL PROCEDURE CODE - SECTION 401, 403, 406, 451, 482, 498A, 200 - HINDU MARRIAGE ACT - SECTION 27 - CRIMINAL BREACH OF TRUST - JOINT ENTRUSTMENT - JURISDICTION OF CRIMINAL COURT - SEARCH WARRANT - INTERIM CUSTODY - FACT OF THE CASE: Accused persons filed an application under Section 401 read with Section 482 of Cr. P. C. for quashing of a criminal proceeding pending in the Court of SDJM, Sreerampore, alleging commission of criminal breach of trust by the petitioners in respect of the complainant's movable properties.

Finding of the Court:

The Court held that the Magistrate did not err in issuing process under Sections 403 and 406, IPC, as the allegations made out a case of criminal breach of trust punishable under Section 406, IPC, and also constituted an offence under Section 403, IPC. The Court further held that the question of joint entrustment of the properties was a question of fact to be decided during the trial. The Court also held that the present prosecution was maintainable, as the determination of the properties given at the time of marriage by the bride's father falls within the jurisdiction of a Criminal Court.

Issues: 1. Whether the Magistrate erred in issuing process under Sections 403 and 406, IPC? 2. Whether the question of joint entrustment of the properties was a question of fact to be decided during the trial? 3. Whether the present prosecution was maintainable?

Ratio Decidendi: 1. The Court held that the Magistrate did not err in issuing process under Sections 403 and 406, IPC, as the allegations made out a case of criminal breach of trust punishable under Section 406, IPC, and also constituted an offence under Section 403, IPC. The Court relied on the fact that the offence of criminal breach of trust, where it consists in the act of dishonest mis-appropriation or conversion to one's own use some movable property by one entrusted with that property or dominion over that property, can be said to be the major offence in relation to the offence of criminal mis-appropriation of that property punishable under Section 403, IPC and Section 222 of Criminal Procedure Code permits conviction for a minor offence even though the accused is not charged with it in a case where the offence proved during trial is included within the offence for which the accused stood charged. 2. The Court held that the question of joint entrustment of the properties was a question of fact to be decided during the trial. The Court relied on the fact that it is always a question of fact in each case as to how the property came to be entrusted to the husband or any other member of the family by the wife when she left the matrimonial home or was driven out therefrom. 3. The Court held that the present prosecution was maintainable, as the determination of the properties given at the time of marriage by the bride's father falls within the jurisdiction of a Criminal Court. The Court relied on the fact that Section 27 of the Hindu Marriage Act merely provides another remedy of suit to recover from the husband or the persons to whom the stridhan property was entrusted, and that cannot certainly oust the jurisdiction of the Criminal Court to determine whether the properties were stridhan properties or for that matter, the exclusive properties of the wife and whether there was entrustment in favour of the husband or other in-laws in relation to those properties or whether the husband and other in-laws has committed the criminal breach of trust.

Final Decision: The Court dismissed the revisional application and modified the impugned order dated 10. 6. 1996 to the extent that the search warrant is to be issued in terms of that order without the direction upon the O. C. to give the seized articles in zimma of the complainant after executing the search warrant. The Court also directed the Magistrate to decide the question of interim custody of the articles that may be seized in execution of the search warrant after giving a hearing to the accused-petitioners.