Yamin vs State of U.P. and Others

B.A. Zaidi, J.—The applicant is elder brother of Km. Shakila to whom he had married opposite-party No. 2 Javed.

There were some dissensions between the parties and Shakila filed a report u/s 498A, I.P.C. read with Section 3/4, Dowry Prohibition Act before the police against her husband and others. A criminal case with regard to it is pending before the Judicial Magistrate, Hapur, district Ghaziabad.

Subsequent to that the complainant filed a complaint u/s 406, I.P.C. with regard to the articles given in the marriage against Javed, his brother Khalid, his father Shakil, his mother Kaniza Begum and Javed''s sister Nagma and their misappropriation by them. The Magistrate after examining the complainant and his witnesses under Sections 200 and 202, Cr. P.C., ordered issuance for summons only against Javed exonerating all others.

This is what brings the applicant to this Court u/s 482, Cr. P.C. for relief that those to whom the Magistrate exonerated be summoned and put on the trial.

Heard Sri Shushil Kumar Srivastava, advocate for the applicant Yamin and Sri R. D. Yadav, Additional Government Advocate for the opposite party No. 1 State.

The applicant''s counsel was questioned as to why he did not go to the Court of Sessions and why he has come to this Court u/s 482, Cr. P.C. His answer to the query is that the authority of the High Court and the Sessions Court in this regard is co-extensive.

The answer of the argument is simple and that is that the legal infra structure provides forums for redressal and the established law is that a party seeking relief must approach the legal forum available for a relief which can be granted by that forum. The courts of law formulated by our legal pharmacopia are in the nature of a ladder and for going to the top one has to ascend the lowest ring of the ladder and then onwards accordingly just as one cannot go to the top of the ladder without ascending the intermediatory steps, he cannot be allowed to come to the High Court without first seeking redress in the lower forums provided for the same.

This application u/s 482, Cr. P.C. is, therefore, not maintainable and is accordingly dismissed.

Before making departure it is significant to note that complainant has roped in everyone of the family and not only the husband of Shakila.

It should however be noted that entrustment is one of the essential ingredients of the offence of misappropriation. It is plain that the offence of misappropriation, if any, could be said to have been committed, if at all, by the husband, because the relationship of the wife was primarily with the husband. Even if, the stridhan articles are in possession of other persons, they should be deemed to have been given by the husband and there will be no direct entrustment to other relatives of the husband. The primary entrustment is to the husband and must be deemed confined to him alone. If articles were given to other persons, the other person cannot be responsible for misappropriation because there is no direct relationship between the wife and those persons. The entrustment being to the husband alone, the other family members, therefore, cannot be said to have committed any offence of misappropriation.