Court No. - 34
Case :- APPLICATION U/S 482 No. - 18894 of 2005 Applicant :- Smt. Hridesh Kumari And Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajeev Sisodia,Atul Sisodia Counsel for Opposite Party :- Govt. Advocate,B.K. Singh,Madan Singh
Hon'ble Sudhir Agarwal,J.
1. Heard Sri Rajeev Sisodia, learned counsel for applicants, Sri Madan Singh, learned counsel for opposite party 2 and learned AGA for State.
2. Applicant has invoked jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") with a prayer to quash order dated 01.11.2004 passed by Additional Civil Judge (Junior Division)/Judicial Magistrate, Court No.2, Bijnor in Complaint Case No.1840 of 2005 (Jitendra vs. Hridesh Kumari and others) summoning applicants to face trial under Sections 380 IPC, P.S. Noorpur, District Bijnor.
3. Learned counsel for applicant submitted that no articles have been taken away by applicants and opposite party 2, with mala fide intention, for the purpose of getting rid of applicant -1, has filed the present criminal case.
4. The complaint itself shows that cash and jewelry was given in custody of applicant- 1, who is wife of complainant. Relevant extract of complaint read as under :
^^izkFkhZ dk ?kj dk lkeku ftleas diMk dherh djhc 20 gtkj :i;s o tsoj lksus o pkanh dk dherh djhc Ms< yk[k :i;s o 50 gtkj :i;s udn tks izkFkhZ us viuh iRuh fgjns'k dqekj dh lqiqnZxh eas ds fy, Hkh [kpkZ pkfg, FkkA** fn;s D;kasfd eqdneas dh iSjoh “household goods of applicant in which clothes worth Rs.20,000/- and jewelry of gold and silver, worth about one lakh fifth thousand and Rs.50,000/- cash, which the applicant 2 has given in the custody of his wife Hirdesh because for Pairvi of the case, money was required.”
(English Translation by Court)
5. Section 480 is “Theft in dwelling house, etc.” read as under:
“Theft in dwelling house, etc.- Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
6. In order to attract Section 380 IPC, essential ingredients are as under:
(I) Subject matter of theft is movable property.
(ii) It was in possession of a person.
(iii) It was moved by the accused dishonestly.
(iv) Accused did it without consent of the person in possession.
(v) He did so intending to take out from his possession.
(vi) Property was stolen from the building, tent or vessel, used as a dwelling house or for the custody of the property.
7. Since, in the present case goods were already in custody of applicant-1, therefore, it cannot be said that ingredients of Section 380 IPC are satisfied. Trial Court, therefore, has erred in law in summoning applicants to face trial under Section 380 IPC and the same cannot be sustained.
8. In the result, application is allowed. Impugned summoning order dated 01.11.2004 (Annexure 3 to the affidavit) is hereby set aside.
Order Date :- 27.11.2019 KA