Netrapal Giri vs Arvind Kumar Goswami and Another

Palok Basu, J.—Netrapal has filed this petition u/s 482 Code of Criminal Procedure for quashing of a complaint giving rise to case No. 293 of 1983 under Sections 457/380 IPC pending in the court of VI Additional Judicial Magistrate Bulandshahr.

It appears that Arvind Kumar Goswami, a practising lawyer in district Bulandshahr, has preferred the complaint against the applicant under Sections 380, 457 and 406 IPC. It will be interesting to refer to the allegations made therein because basically it is those allegations which will determine whether the order of the Magistrate summoning the applicant under Sections 457/380 IPC can be justified or not. Translated into English, the relevant portion of the complaint would read thus:

I was sitting at my house around 6 P.M. on 27-2-1983 and taking about domestic matters with Gajraj Singh when Netrapal Giri s/o unknown who is married in the applicant''s village Rangpur came and said: "Vakil Saheb, how are you? To night I will stay at yours because it is quite late now". Because of the pre-existing acquaintance I relied upon him and permitted the said man to stay in my bed-room. "The complainant slept at about 10 P.M. and on getting up at 6 A.M. he found that the said man was not in the room and that an almirah was found open in which he had kept on 27-2-1983 a sum of Rs. 1200/- after counting at and an H.M.T. gold watch which were missing. The complainant enquired about the said guest from the other members of the family. They said that they do not know. He may have taken the cash and the watch. The aforesaid act of the said man would fall under Sections 380/457/406 IPC, which he has done intentionally. When the complainant went to lodge an FIR at the police station it was not taken down, hence he forwarded an application to the S.P. Bulandshahr under registered cover. "It is, therefore, requested that the said man be proceeded with in accordance with law and this Court has jurisdiction".

Sd/- Arvind Kumar Goswami 1-3-1983.

Taking up the discussion, of the complaint allegations it may be noted that the permission to sleep in the bed room was voluntary act of the complainant. Therefore, there is no question of Section 457 IPC being attracted to the present case. No entrustment by hand or by gesture of any valuables or cash was made to the applicant by Arvind Kumar and, therefore, no case u/s 406 IPC was even disclosed. Left thus to judge whether the aforesaid allegations should constitute an offence u/s 380 IPC or not, a close scrutiny of the complaint has to be made. As it is, Arvind Kumar Goswami allegedly slept at about 10 P.M. identical is the statement of the complainant u/s 200 as well as that of his witness Meghraj Singh Giri u/s 202 Code of Criminal Procedure. It may be incidentally mentioned that Meghraj Singh Giri happens to be the father of the complainant. His other witness mentioned in the complaint, Gajraj Singh, has not been examined. It may be noted that no body has seen the applicant taking away anything. It was bed room of the complainant himself, which obviously is inside the house and all others had access to the room. Assuming that the complainant had stayed and had left the house sometimes in the morning at about six before the complainant had got up, the applicant may not have awakened the complainant, for, he may not have thought it necessary. Under the circumstances there is nothing to connect the applicant with the alleged missing of the H.M.T. Watch and the sum of Rs. 1200/- as alleged in the complaint which itself conveys only a suspicion of the complainant.

A few other facts may be usefully noted. The applicant has described himself to be the Zonal President of the Hydro Electricity Employees Union at Agra and has further said that he was at Lucknow in connection with a Zonal meeting on 26, 27 and 28-2-83. The applicant is resident of Brindaban (Mathura) and has his in-laws'' house in village Rangpur, District Bulandshahr. The applicant''s father-in law Vishcshwar Dutt Giri is having litigation with Arvind Kumar Goswami, the complainant who is a lawyer of about 2 years standing. In the counter affidavit, the present of the accused-applicant in Lucknow for the meeting on 26, 27 and 28-2-1983 and about the litigation between Visheshwar Dutt Giri and Arvind Kumar have been denied. The other allegations have been admitted.

As it is, there was absolutely no likelihood of the applicant reaching the complainant''s house in that night for permission to stay overnight as his own in-laws'' house was admittedly in the neighbourhood. This part of the story does not appear truthful even remotely and it is impossible to comprehend why the applicant should not have gone to stay in his own in-laws'' house and should have visted the complainant''s house. Therefore, the possibility of the complaint Slaving been filed due to some ulterior motives is apparent. As stated above, non of the ingredients of the Sections of IPC for which the applicant has been summoned, is made out from the complaint and its continuance would thus be an abuse of the process of the court.

In view of the aforesaid discussion, this petition succeeds and is hereby allowed. The complaint and further proceedings in ease No. 293 of 1983 of the court of VI Additional judicial Magistrate, Bulandshahr, are quashed.