IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No 3398 of 2003 For Approval and Signature: Hon'ble MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- MANISHABEN KIRITKUMAR TRALSAWALA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Misc.Application No. 3398 of 2003 MR NA SHAIKH for Petitioner No. 1 MR SS PATEL, APP for Respondent No. 1 NOTICE SERVED for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE D.P.BUCH Date of decision: 17/06/2003 ORAL JUDGEMENT This is an application under Section 482 of the Code of Criminal Procedure, 1973 (for short, "the Code") challenging an order dated 25/02/03 recorded by the learned Chief Judicial Magistrate, Bharuch in Bharuch City A' Division Police Station, Crime Register No. I - 13 of 2003 which has been confirmed in Criminal Revision Applications No. 28/2003 and 31/2003 on 05/04/03 by the learned Sessions Judge, Bharuch, dismissing the said two revision applications filed by the petitioner as well as by the State of Gujarat. 2. It appears from the record that the present petitioner had filed a First Information Report being Bharuch City A' Division Police Station, Crime Register No. I - 109/2002 for offences punishable under Section 498-A, 406, 504 and 506(2) read with Section 114 IPC against the second respondent. In the said F.I.R., respondent no.2 was arrested on 18/05/02. Thereafter, they were produced before the learned Chief Judicial Magistrate, Bharuch. At that time, a request was made that the second respondent be handed over to police custody. After hearing, the learned Magistrate dismissed the said application by order dated 18/05/02. It seems that the said order was not challenged, either by the State or by the petitioner, either before the Sessions Court or before this Court and therefore, that order has become final, so far the petitioner and the second respondent are concerned. During the course of the said order, the learned Magistrate had made an observation that so far the offence under Section 406 IPC is concerned, there was some sort of an issue of criminal breach of trust between the petitioner and the second respondent. However, this was not found to be a fit case for granting police remand and therefore, the said application was turned down by the learned Magistrate. Thereafter, the petitioner filed a second F.I.R. being Crime Register No.I - 13/2003 before the said Police Station for an offence punishable under Section 406 IPC stating that the present contesting respondent had committed criminal breach of trust, with respect to golden ornaments and other movable properties, which were streedhan property. In that case also the second respondent was arrested and presented before the learned Magistrate. There also a remand was sought and it was turned down by the learned Magistrate, by order dated 25/02/03. The State as well as the petitioner preferred Criminal Revision Applications, being Criminal Revision Applications No. 31/2003 and 28/2003 respectively. Both the applications were rejected by the learned Sessions Judge by impugned order. 3. Against the said judgment and order of the learned Sessions Judge, the State has not preferred any petition or revision. However, the petitioner has preferred the present petition under Section 482 of the Code of Criminal Procedure, 1973. It has been contended here that it was necessary for the learned Magistrate to grant police remand. That the said aspect has not been properly considered by the trial court and therefore, the order impugned in this petition is illegal. It is, therefore, contended that the present petition be allowed and the second respondent be handed over to police custody. 4. On receiving the petition, Notice was issued. In response to the service of notice, the learned APP appeared on behalf of the State of Gujarat. However, though served, the second respondent has not appeared before this Court. I have heard the learned advocate for the petitioner and the learned APP for the State. They have taken me through both the orders of the trial court and also the order of the learned Sessions Judge in the two matters. 5. It is required to be considered that even when the first order was passed by the learned Magistrate on 18/05/02 in Crime Register No.I - 109/2002, the investigating agency had already the F.I.R. for offence punishable under Section 406 IPC, relating to the said streedhan property. There is absolutely no dispute between the parties about the said position. Therefore, with respect to the said streedhan property, offence was registered and police remand was sought for getting information from the second respondent, with respect to the said streedhan property. This can be gathered from the copy of the application submitted by the investigating officer for getting police remand of the second respondent in Crime Register No.I - 109/2002. The prayer clearly discloses that the police remand was sought on the following three main grounds; (i) the information as to whom the present second respondent had entrusted the streedhan ornaments; (ii) if Bhartiben Srivastav had handed over the streedhan property of the petitioner to the second respondent, then where they are lying and who is in custody thereof; (iii) and, whether the second respondent and the informant were operating the locker; This shows that the main idea and object behind applying for police remand was to get information from the second respondent, with respect to the said streedhan property, including the ornaments. 6. Indisputably the said application was turned down and the said order was not challenged, either before the Sessions Court or before this Court and therefore, the said order has become final. Now, simply because a second F.I.R. has been filed by the petitioner being Crime Register No.I - 13/2003 for an offence punishable under Section 406 IPC against the second respondent with respect to the same streedhan property, then in that case, it was not open to the learned Magistrate to grant police remand, since it was once rejected and since the order was not challenged. In that view of the matter, it cannot be said that the order passed by the learned Magistrate is illegal on the face of it. In that view of the matter, it would not be open to this Court to set aside the said order and to grant police remand to the police investigating agency. It is also required to be considered that so far the State is concerned, it has not preferred any proceeding against the order passed by the learned Sessions Judge in the Criminal Revision Application filed by the State. This would show that the State has been satisfied by the order of the learned Sessions Judge and the State does not require police remand of the second respondent. This would be another ground for not granting the present application and for not granting police remand of the second respondent. 7. In above view of the matter, the present petition is without any merit and it requires to be dismissed. 8. In support of his contention, the learned advocate for the petitioner has relied upon a decision of the Hon'ble the Supreme Court in Pratibha Rani V. Suraj Kumar and another, reported in 1985 CLJ, 817. There it has been laid down that in case of a streedhan property, it is an entrustment to the husband or in-laws of the wife and the wife has absolute ownership of such property and the said ownership does not stand transferred into co-ownership or partnership. It is further laid down that criminal proceedings for its misappropriation against husband or in-laws are maintainable. We are not on this point at this level in this petition. We may assume that criminal proceedings are unmaintainable. 9. Another decision cited by the learned advocate for the petitioner can be gathered from Muraleedharan V. State of Kerala reported in (2001) 4 SCC, 638. There the Hon'ble the Supreme Court has discussed the requirement of custodial interrogation in appropriate cases. The principle laid down therein is also not in dispute. Here the point is quite different. The matter has been decided once and therefore, it is not open to this Court to pass a different order and to grant police remand, in light of the background of the discussion hereinabove. 10. The learned APP has argued that the petitioner is a private complainant and he cannot maintain a petition like this or a revision application under Section 397 of the said Code. In above view of the matter, it would not be very much necessary for this Court to touch this aspect. Anyway, in view of the foregoing discussion, I am of the opinion that the present petition is not required to be allowed and therefore, it is ordered to be dismissed. Notice is discharged. (D. P. Buch, J.) pravin/