# State of U.P. and others v. State - **Citation:** (2007) 2 ILRA 419 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2006-11-13 - **Case number:** Criminal Misc. Application No. 8955 of 2002 - **Bench:** Barkat Ali Zaidi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-state-40899 - **Pages:** 4 ## Headnote Indian Penal Code-Section 406-Criminal breach of Trust-complaint by wife against her husband, family member of her in-laws including 11 membersparticular of Stridhan not specified- only a general and vague statement that all the accused have usurped the propertyheld-continuation of proceeding-be an abuse of process of court-proceeding quashed. Held: Para 9 The requirement of Section 406 Indian Penal Code being attracted as enumerated in the aforesaid case, cannot be said to be available in the present case, because, there is no clear mention of the entrustment of items to any particular accused and there is only a general and vague statement that all the accused have usurped the property. Even on merits, the case of the complainant- wife is unsuccessful. Case law relied on: 1991 Cr.L.J.-2333 420 INDIAN LAW REPORTS ALLAHABAD SERIES [2007 ## Text 2 All] Ashok Kumar Buxi and another V. State of U.P. and another 419 Public Services Tribunal, U.P. Luckow and another, (2004) 1 UPLBEC-127 it has been held that pensionary benefits of an employee can not be withheld after his retirement on the ground that promotional pay scale and selection grade was wrongly granted. There was nothing to show that he was instrumental in grant of such benefits. If any state officials have wrongly fixed the salary it is upon the State to fix responsibility upon such erring person but petitioner cannot be penalized for wrong act of others. In the aforesaid case of State of U.P. and others (supra) the High Court therefore, found that Tribunal was justified in directing payment of pensionary benefits. Refusing to interfere with Tribunal's direction, High Court held that it was not fit case for exercise of discretionary jurisdiction under Article 226 of the Constitution. 11. For the reason that neither the petitioner is at fault nor was instrumental in fixation of his alleged wrong salary and in view of the decision in the case of State of U.P. and others Vs. State Public Services Tribunal, U.P. Luckow and another (2004) 1UPLBEC-127 (supra) and for the reasons stated above, the writ petition is allowed. The impugned order is quashed. No order as to costs. Petition allowed. ---------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 13.11.2006 BEFORE THE HON'BLE BARKAT ALI ZAIDI, J. Criminal Misc. Application No. 8955 of 2002 Ashok Kumar Buxi and another ...Applicants-Accused Versus State of U.P. and another ...Complainant-Opposite parties Counsel for the Applicants: Sri Rajesh Kumar Srivastava Counsel for the Opposite Parties: Sri Anil Srivastava Sri Amit Srivastava Sri Narendra Kumar Sharma A.G.A. Indian Penal Code-Section 406-Criminal breach of Trust-complaint by wife against her husband, family member of her in-laws including 11 membersparticular of Stridhan not specified- only a general and vague statement that all the accused have usurped the propertyheld-continuation of proceeding-be an abuse of process of court-proceeding quashed. Held: Para 9 The requirement of Section 406 Indian Penal Code being attracted as enumerated in the aforesaid case, cannot be said to be available in the present case, because, there is no clear mention of the entrustment of items to any particular accused and there is only a general and vague statement that all the accused have usurped the property. Even on merits, the case of the complainant- wife is unsuccessful. Case law relied on: 1991 Cr.L.J.-2333 420 INDIAN LAW REPORTS ALLAHABAD SERIES [2007 (Delivered by Hon'ble Barkat Ali Zaidi, J.) 1. Wife filed a complaint (No. 1088 of 1999) against the husband and ten other relatives for non-return of Stridhan property under Section 406 Indian Penal Code and the Magistrate (A.C.J.M.) Agra issued process. Two of the eleven accused, named above, being the brother and the wife of husband's brother have come under Section 482 Cr.P.C. to quash the proceedings. 2. The complainant-Opp. Party no.2 has mentioned the Stridhan given in para No. 6 of the complaint, and the list annexed which are as follows:- (i) Cash amount of Rs. 35,000/- (ii) One Bajaj Chetak Scooter. (iii) One Big Almirah. (iv) Polar Ceiling Fan. (v) Two HARS of Gold and (vi) One Ring of Gold (vii) Etc. 3. It was mentioned in the complaint that she was turned out of the house by his Kinsmen while the husband had gone out of the country and they retained the Stridhan item for themselves. A notice was also given for return of Stridhan property by the wife (Opp.Party No.2) to the accused but the Stridhan property was not returned and thereafter, she filed this complaint. 4. The two petitioners, who have come to this Court, who are husband's brother and his wife, are residing at Bombay since 1980 i.e. since before the marriage of the complainant wife and the petitioner no.1 (Sri Ashok Baxi) is an employee in Taj Hotel, Bombay. A certificate of Taj Hotel, Bombay has been filed to this effect. 5. There is no allegation that the petitioners took any Stridhan to Bombay for their own use, and, there is no likelihood of their having appropriated any Stridhan property of the wife. This is an illustrative of the reckless and ruthless manner for which the accused have been arrayed in this complaint. 6. The other aspect is that the complaint seems to be barred, prima-facie by Limitation. Marriage of the complainant-Opp. Party took place at Udaipur. She alleges that she was turned out of the house by the accused on 13.4.1996. The Limitation for filing the complaint under Section 406 Indian Penal Code is 3 years from the date of entrustment as provided in Section 468 (2) ( c) Cr.P.C. The complaint, therefore, be deemed to have been filed beyond Limitation and becomes un-maintainable on this ground. 7. There is another ground on which complaint seems to be un-maintainable in the court at Agra, and that is, that, the marriage of the complainant took place in Udaipur, and the Stridhan items are naturally delivered at the time of marriage and must have been so delivered at Udaipur. It is, therefore, the Udaipur Court, which will have the jurisdiction. It is for the first time, in this Court, in her counter affidavit that the wife-Opp.party has mentioned that the Stridhan property was given 3 days before marriage at Agra. At first, no such thing was mentioned either in the notice nor in the complaint. This has now been deliberately inserted in order to bring the matter within the jurisdiction of Court at Agra. The 2 All] Ashok Kumar Buxi and another V. State of U.P. and another 421 contention that the Stridhan property was given even before the marriage is obviously a manipulated move to bring the matter within the jurisdiction of Agra Court. The Agra Court, therefore, seems to have no jurisdiction to entertain the complaint. 8. Besides limitation and jurisdiction, even on merits, the complaint's case against so many of her husband's relatives seems infirm and depreciated. The reason is that there is no clear mention of any entrustment of Stridhan property to any particular accused, which is necessary for constituting the offence under Section 406 Indian Penal Code. There is a general averment about so many accused about retaining the property. It would be appropriate to quote here the observations made in case of Vinod Kumar Goyal Vs. Union Territory, 1991 Cri. L.J.,2333( P & H), which is as follows:- "As to criminal breach of trust by a spouse, it may, however, be opposite that mere allegations in the complaint either concerning entrustment of articles of dowry constituting stridhan to all the accused, or , their refusal to return such articles of dowry to the complainant wife at a later stage, would not per se be sufficient to make out a prima-facie case for commission of offences punishable under Section 405 or Section 406 I.P.C. against any particular accused. In the absence of clear, specific and unambiguous allegations concerning entrustment of specific articles of dowry to any particular accused and in the absence of further allegations against him that he had dishonestly or with malafide intention retained the same and had refused to return those articles to the wife for whose exclusive use such article were allegedly entrusted to him, no prima-facie case for commission of such offence would be made out against that particular accused. Normally, in the cases relating to commission of offence of criminal breach of trust punishable under Section 406 of the Indian Penal Code, a particular accused can prima-facie be said to be responsible only for his individual acts and cannot be fastened with joint or vicarious liability." 9. The requirement of Section 406 Indian Penal Code being attracted as enumerated in the aforesaid case, cannot be said to be available in the present case, because, there is no clear mention of the entrustment of items to any particular accused and there is only a general and vague statement that all the accused have usurped the property. Even on merits, the case of the complainant- wife is unsuccessful. 10. In view of the aforesaid circumstances, the continuation of the proceedings in the wife's complaint would obviously be an abuse of process of Court, and the proceedings, need to be brought to a close. 11. The relief need not, therefore, be conferred to petitioners and where this Court finds, as here, that that continuation of the proceedings is wholly unwarranted and unjust, the Court should terminate the same even in respect of other accused, who have not specifically approached this Court. 12. In the result, the proceedings initiated on the basis of complaint in question shall stand terminated. 422 INDIAN LAW REPORTS ALLAHABAD SERIES [2007 13. A copy of this order be sent by the Registry forthwith to Addl. Chief Judicial Magistrate through District and Sessions Judge, Agra for information and compliance. --------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 22.02.2007 BEFORE THE HON'BLE VINOD PRASAD, J. Criminal Misc. Application No. 9728 of 2006 Rahul ...Applicant Versus State of U.P. & another ...Opposite Party Counsel for the Applicant: Sri S.R. Verma Counsel for the Opposite Parties: A.G.A. Code of Criminal Procedure-Section 437readwith javenalie justice (care and protection of children) Act 2000-accused below 16 years of age-seeking direction -the Magistrate concerned to consider the bail application under Act of 2000-as one member of the Board resigned-heldsuch application can be considered even by one member-it does not make the Board non functional-requires no direction by High Court. Held: Para 10 Coming to the facts of the present application it is to be noted that it has not been averred anywhere that there is no member of the Board. The only ground, which it taken in this application is that one of the member of the Board, has had resigned and therefore the Board is not functioning. To my mind resignation of one of the member of the Board does not make the Board non functional. As has been discussed above the bail prayer of the applicant can be considered even by one member. Thus the prayer of the applicant that CJM be directed to consider the bail of the applicant cannot be allowed against the provisions of the Act. If the applicant wants he can move his bail application before the Board who is under the legal duty to consider his prayer for bail. (Delivered by Hon'ble Vinod Prasad, J.) 1. The applicant has filed this application under section 482 Cr.P.C. with the prayer that his bail be directed to be considered by the CJM, Mathura as Juvenile Justice Board is not functioning in District Matura because one of it's member has resigned. 2. From the facts it seems that the applicant is an accused for offence under section 401 IPC which means that the allegations against him that he belongs to a gang of thieves. He is alleged to have been apprehended on the intervening night of 16/17-7-2006 at about 1.45 AM and FIR against him was lodged by R.S. Malik, Sub Inspector of police PS Kotwali District Mathura at 3.15 AM on 17.7.2006 as crime number 394 of 2006. 3. I have heard Sri S. R. Verma, learned counsel for the applicant and the learned AGA in support and opposition of this applicant. 4. Learned counsel for the applicant has mainly argued that there is no bar in Cr.P.C. under section 437 for considering the bail of a juvenile if the Juvenile Justice Board is not functioning. He further contended that under section 437 Cr.P.C. it is provided that if the accused is less than 16 years of age then he may be released on bail by the Magistrate.