SHWETA LOHARUKA vs ADITYA VIKRAM AGARAL AND OTHERS
- Court
- Calcutta High Court
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON’BLE JUSTICE UDAY KUMAR
CRR 4032 OF 2024
SHWETA LOHARUKA
-VS-
ADITYA VIKRAM AGARWAL & ORS.
For the Petitioner : Mr. Mayukh Mukherjee,
Ms. Sagnika Banerjee
For the State : Mr. Suman De,
Mr. Mujibar Ali Naskar
For the Opposite Party Nos.1 to 3 : Mr. A Gupta,
Mr. Sudeepto Basu,
Mr. M. Das
Hearing concluded on : 25.03.2026
Judgment on : 28.04.2026
UDAY KUMAR, J.: –
INTRODUCTION
1. The inherent powers of this Court under Section 482 of the Code
of Criminal Procedure (now Section 528 of the Bharatiya Nagarik
Suraksha Sanhita, 2023) are invoked to examine the propriety
of a revisional order that stifles the truth-seeking process at its
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nascent stage. The Petitioner, the de facto complainant and a
victim of matrimonial discord, seeks the quashing of the
judgment and order dated 22.08.2024 passed by the Learned
Additional District and Sessions Judge, Fast Track 4th Court,
Barasat, in Criminal Revision No. 04 of 2022.
2. By the said order, the Revisional Court proceeded to set aside a
well-reasoned direction for 'further investigation' issued by the
Learned Additional Chief Judicial Magistrate, Bidhannagar,
regarding the non-recovery of the petitioner’s stridhan property
and misappropriated funds; a decision predicated primarily on
the grounds of chronological delay and an alleged lack of
documentary evidence.
FACTUAL MATRIX
3. The narrative of the Petitioner, Shweta Loharuka, discloses a
matrimonial alliance with the Opposite Party No. 1, Aditya
Vikram Agarwal, that was ostensibly high on expectations but,
as alleged, hollow in substance. Solemnized on 26.01.2017, the
union was purportedly marred by persistent dowry demands and
an egregious fraud—the husband’s knowing concealment of his
physical incapacity to consummate the marriage. Driven by
systematic cruelty, the Petitioner was eventually forced to seek
refuge in the sanctuary of her parental home in 2018.
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4. On 10.01.2021, the Petitioner set the criminal law in motion by
lodging an FIR at Lake Town Police Station, registered as Case
No. 9 of 2021, under Sections 498A/406/34 of the Indian Penal
Code and Sections 3/4 of the Dowry Prohibition Act. While the
investigating agency effected a partial recovery of stridhan
articles on 23.08.2021, the probe appeared to hit an abrupt
stalemate. This stagnation occurred despite the Petitioner’s
categorical assertion that high-value gold ornaments and cash
to the tune of ₹1,00,000/- remained under the dishonest
misappropriation of the accused.
5. Notwithstanding these glaring lacunae, a Charge Sheet (No. 185
of 2021) was filed on 30.08.2021. The Learned Additional Chief
Judicial Magistrate, Bidhannagar, upon a meticulous perusal of
the Case Diary, found the investigation to be perfunctory and
rightly declined to take cognizance. Exercising the statutory
mandate under Section 173(8) of the Code, the Learned
Magistrate, vide order dated 18.12.2021, directed a further
probe to trace the missing articles and collect relevant receipts.
The judicial perspicacity/ mind applied by the Learned
Magistrate is best reflected in the following observation:
"Perused the CD and other materials on record. It
appears to me that some of the stridhan articles
could not be recovered by the IO. In this
circumstance, cognizance of CS is not taken. IC is
directed to take steps for further investigation of this
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case after collecting all information and proper
receipts, if any... from the defacto complainant which
could not be collected by this IO."
6. This directive was intercepted by the Learned Sessions Judge in
Criminal Revision No. 4 of 2022. In a reversal that appears to
prioritize clinical timelines over the imperatives of substantive
justice, the Revisional Court set aside the order for further
investigation. The Learned Judge’s reasoning was anchored
primarily in the Petitioner’s failure to produce "cash memos" and
the chronological lapse between the separation of the parties
and the lodging of the complaint.
7. The relevant excerpts of the impugned judgment, which
encapsulate the Revisional Court's restrictive perspective, read
as follows:
"It appears from the entire GR case record... not a
single scrap of paper has been submitted by the
defacto complainant regarding her streedhan
property. Except oral submissions, no document has
come before this court to show and prove that the
list mentioned streedhan property... is accurate."
8. The Court further surmised:
"If the revisionists had any such intention to commit
any criminal breach of trust... then they got ample
opportunity during the period of 2018-2021 and in
that case there was a little scope to recover any of the
streedhan property from their house... further
investigation... will not serve any more purpose."
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GROUNDS OF CHALLENGE
9. The Petitioner assails the impugned order on the following
formidable grounds:
I. The Revisional Court failed to recognize that Stridhan is
the absolute property of the woman. As held in Pratibha
Rani v. Suraj Kumar (1985) 2 SCC 370, the husband
and in-laws hold such property as trustees; thus, the
absence of "cash memos," often non-existent in
ancestral transfers, cannot be used as a shield to justify
misappropriation.
II. In an offense under Section 406 IPC, which constitutes a
continuing wrong, the date of separation is secondary to
the date of refusal to return the property. The Court
erred in assuming that a delay in filing the FIR
automatically negates the existence of the property.
III. The Revisional Court overstepped its jurisdiction by
substituting speculative conjectures for the Magistrate’s
subjective satisfaction. A Magistrate’s power to order a
further probe is a vital safeguard against shoddy
investigations and ought not to be disturbed unless
demonstrably perverse.
IV. By stifling the investigation, the Revisional Court has
effectively closed the door on the recovery of the
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proceeds of crime, resulting in a manifest miscarriage of
justice regarding the statutory protection of women’s
property rights.
POINTS FOR DETERMINATION
10. Upon an anxious consideration of the rival submissions and a
dispassionate perusal of the record, the following principal
questions emerge for determination:
i. Whether the Learned Revisional Court exceeded its
jurisdiction by interfering with the Magistrate's
discretionary power to ensure a complete investigation
under Section 173(8) of the Code?
ii. Whether the absence of 'cash memos' or formal
documentary evidence is a legally sustainable ground to
stifle an investigation into the criminal breach of trust
regarding Stridhan ?
iii. Whether chronological delay in setting the criminal law
in motion can extinguish the statutory duty of the
Investigating Agency to trace and recover
misappropriated property?
iv. Whether the Revisional Court erred in prioritizing the
clinical closure of a deficient Charge Sheet over the
substantive recovery of a woman’s absolute estate?
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v. Whether the perceived 'motives' of a complainant can
legally override the objective investigative gaps
identified by the Magistrate in the Case Diary?
SUBMISSIONS ON BEHALF OF THE PETITIONER
11. Mr. Mayukh Mukherjee, Learned Counsel appearing for the
petitioner, assailed the impugned judgment with characteristic
vehemence, mounting a challenge that was as much anchored
in legal precedent as it was in the domestic realities of
matrimonial jurisprudence. He argued, at the very threshold,
that the Revisional Court’s preoccupation with the absence of
"cash memos" betrayed a fundamental misconception of the law
governing stridhan . Relying on the seminal ratio in Pratibha Rani
vs. Suraj Kumar [(1985) 2 SCC 370], he propounded that
stridhan is the absolute property of the woman, held by the
husband and his kin in a fiduciary capacity as trustees. Learned
Counsel emphasized that the entrustment of ornaments and
valuables is a natural corollary of the matrimonial union; to
demand commercial invoices as a condition precedent for a
search is to substitute the "rule of trust" with a "rule of
commerce," an approach that is entirely alien to the mandate of
Section 406 of the Indian Penal Code.
12. Moving to the procedural propriety of the investigation, Learned
Counsel contended that a Magistrate is not a mere "post-office"
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destined to receive skeletal and perfunctory police reports.
Invoking the principles laid down in Amrutbhai Shambhubhai
Patel vs. Sumanbhai Kantibhai Patel [(2017) 4 SCC 177], he
submitted that when a Magistrate, upon a meticulous perusal of
the Case Diary, finds the investigative efforts to be lacklustre,
he is duty-bound to invoke Section 173(8) of the Code. The
direction for further investigation in the instant case was not a
"whimsical" exercise but a deliberate "truth-seeking" endeavour
aimed at recovering the proceeds of crime. By setting aside this
directive, the Revisional Court has effectively institutionalized a
shoddy investigation, thereby stifling the quest for substantive
justice at its nascent stage.
13. Learned Counsel further countered the Revisional Court’s
observations regarding the three-year hiatus between the
separation of the parties and the lodging of the FIR. Drawing
support from Arun Vyas vs. Anita Vyas [(1999) 4 SCC 690], he
argued that the offense of criminal breach of trust is a
"continuing wrong" where the refusal to return property upon
demand constitutes a fresh cause of action. He highlighted an
inherent paradox in the impugned judgment: if the passage of
time had truly rendered recovery "futile," then the successful
partial seizure already effected by the police on 23.08.2021
would have been a factual impossibility. This partial recovery,
he asserted, was the most potent evidence that the remaining
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articles continue to be in the dishonest possession of the
accused, necessitating the further probe ordered by the
Magistrate.
14. Finally, it is argued that the Revisional Court exceeded its
limited mandate under Section 397 of the Code by substituting
its own "subjective satisfaction" for that of the Magistrate.
Counsel maintains that a Revisional Court cannot act as a Court
of Appeal to disturb a discretionary order unless it is found to be
patently perverse or devoid of jurisdiction. In the present
instance, the Magistrate acted as the sentinel of the Petitioner’s
rights, while the Revisional Court adopted a casual approach
that prioritizes a "speedy trial" of a deficient Charge Sheet over
the "fair recovery" of a victim's assets. Consequently, he prays
for the restoration of the Magistrate’s order to ensure that the
investigation reaches its logical and physical conclusion.
15. Summing up his submissions, Counsel prays for the restoration
of the Magistrate’s order, asserting that the investigation must
be allowed to reach its "logical and physical conclusion" to
ensure the petitioner is not denuded of her absolute property.
SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES
16. Conversely, Mr. Suman De & Mr. A Gupta, Learned Counsels
appearing for the opposite parties, defended the impugned
judgment with equal vigour, characterized the Revisional Court’s
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intervention as a necessary corrective against a "roving and
fishing" inquiry. They submitted that the petitioner, having
voluntarily exited the matrimonial home as far back as 2018,
maintained a calculated silence for over three years, only to set
the criminal law in motion in 2021 as a collateral "pressure
tactic" to bolster her pending matrimonial suit. This
chronological chasm, Learned Counsels argued, created an
impenetrable cloud of doubt over the bona fides of the
allegations and lends credence to the Revisional Court’s finding
that the prayer for further investigation was a vexatious attempt
to keep the accused under the sword of Damocles.
17. Expanding on the factual history, Learned Counsels contended
that the investigation had already reached its logical and
saturated conclusion. They pointed out that the Investigating
Officer had conducted a comprehensive search and seizure on
23.08.2021 in the presence of the petitioner herself and a
verified goldsmith, where every "available" article was recovered
and duly inventoried. They submitted that once a Charge Sheet
had been filed after such an exhaustive exercise, the Magistrate
cannot, in a mechanical fashion, order the police to "recover
more" based solely on the unsubstantiated oral claims of the
complainant. They argued that to compel the investigating
agency to search for articles whose very existence is not
supported by a "single scrap of paper" or "cash memo" is to
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demand the performance of an impossibility, which is anathema
to the principles of fair play and natural justice.
18. Adverting to the legal position, Learned Counsels relied upon the
observations in Vinubhai Haribhai Malaviya vs. State of Gujarat
[(2019) 17 SCC 1] to caution that the power to order further
investigation must be exercised "judicially" and not
"whimsically." They submitted that the Revisional Court
correctly identified that the Learned Magistrate had fallen into
error by blindly giving undue weightage to the petitioner's oral
version while ignoring the repeated reports of the Investigating
Officer stating that no further articles could be traced. By setting
aside the direction for a further probe, the Revisional Court has
merely ensured that the trial proceeds on the basis of tangible
evidence rather than the "surmises and conjectures" of the
court of first instance.
19. In conclusion, Learned Counsels argued that the impugned
judgment does not suffer from any illegality, as it prevents the
criminal process from being converted into an instrument of
harassment. Counsel maintains that the "truth-seeking" process
has already been exhausted through the recovery of items
mentioned in the seizure list, and any further investigation
would be a "futile exercise" resulting in the unnecessary
incarceration of the liberty of the accused. They, therefore, pray
for the dismissal of the instant revisional application and the
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affirmation of the judgment which directs the Magistrate to
proceed with the trial on the basis of the existing materials on
record.
DISCUSSION ON POINTS FOR DETERMINATION AND
FINDINGS
20. I shall now address the first point for determination, which
strikes at the very root of the jurisdictional boundary between a
Magistrate’s oversight and a Revisional Court’s interference. The
Learned Revisional Court, in its zeal to ensure a "speedy trial,"
appears to have overlooked the foundational principles
governing the Magistrate’s role as the sentinel of investigation.
To resolve this, it is imperative to dissect the ratio in Amrutbhai
Shambhubhai Patel vs. Sumanbhai Kantibhai Patel [(2017) 4
SCC 177], which has been cited by the petitioner but, in my
view, significantly misapplied by the court below.
21. In Amrutbhai (supra), the Hon'ble Supreme Court was dealing
with a scenario where an accused sought further investigation.
The specific ratio propounded therein is that while an accused
has no right to demand a further probe, the Magistrate
possesses an independent, statutory power under Section
173(8) of the Code to ensure the "ends of justice" are met. The
Court held that the Magistrate is not a mere conduit for the
police report and must apply his judicial mind to see if the
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investigation is "fair, effective, and complete." The Learned
Sessions Judge, however, failed to distinguish the facts of the
present case from the restrictive application of Amrutbhai . In
the case before us, it is the victim, the absolute owner of the
property, who identified a glaring void in the recovery process,
and the Magistrate, acting as a truth-finder, found the
investigation to be perfunctory.
22. Furthermore, the Revisional Court failed to reconcile its findings
with the expanded ratio in Vinubhai Haribhai Malaviya vs. State
of Gujarat [(2019) 17 SCC 1]. In Vinubhai , the Apex Court
essentially broadened the horizon of the Magistrate’s power,
holding that the "search for truth" is the primary guiding star
and that further investigation can be ordered at any stage until
the trial commences. The factual matrix here is distinct, this
Court is not dealing with a "roving inquiry" into unknown facts,
but a specific quest for high-value gold ornaments and cash
clearly mentioned in the FIR. Since a partial recovery was
already effected on 23.08.2021, the "existence" and
"entrustment" of the stridhan were no longer in the realm of
speculation. By setting aside the Magistrate’s order, the
Revisional Court effectively held that "half an investigation" is
sufficient, a proposition that stands in direct contradiction to the
spirit of Vinubhai .
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23. The Revisional Court also placed reliance on certain precedents
suggesting that once a Charge Sheet is filed, the Magistrate’s
hands are tied. However, the facts of this case are easily
distinguishable from those where a "re-investigation" (de novo)
is sought. Here, the Magistrate merely sought a continuation of
the existing search to bridge a documented lacuna. The ratio in
Sanapareddy Maheedhar Seshagiri vs. State of Andhra Pradesh
[(2007) 13 SCC 165] underscores that a High Court or a
Revisional Court should not stifle a legitimate probe by
speculating on its outcome. The Learned Sessions Judge’s
conclusion that a search would be "futile" was a factual leap
taken without the benefit of a trial, thereby encroaching upon
the domain of the investigating agency and the Magistrate.
24. Consequently, after sifting through the cited authorities and
distinguishing their factual foundations from the present
controversy, I find that the Magistrate's order was a robust
exercise of judicial supervision aimed at curing a patent
investigative failure. The Revisional Court’s interference was
predicated on a misreading of the jurisdictional limits set by
Amrutbhai and Vinubhai . The Magistrate’s directive was not an
act of perversity but a necessary step toward the recovery of
the proceeds of crime. Therefore, the first question is answered
in the affirmative, the Magistrate acted within his jurisdiction,
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and the Revisional Court's interference was a manifest error of
law.
25. The second point for determination concerns the evidentiary
threshold required to sustain an investigative search for
stridhan, specifically, whether the absence of "cash memos" or
formal receipts at the pre-cognizance stage is a legal bar that
renders further recovery "futile." The Revisional Court, in its
impugned judgment, placed an almost insurmountable emphasis
on the lack of documentary proof, concluding that in the
absence of "a single scrap of paper," the Magistrate’s direction
to search for missing jewellery was an exercise in futility.
26. This Court finds that such a conclusion is not only detached from
the domestic realities of Indian matrimonial life but is also
fundamentally inconsistent with the ratio decidendi in Pratibha
Rani vs. Suraj Kumar [(1985) 2 SCC 370] . In Pratibha Rani
(supra) , the Hon'ble Supreme Court categorically defined
stridhan as the absolute property of the woman, held by the
husband and his kin in a fiduciary capacity as "trustees." The
specific ratio of that landmark decision propounds that the
entrustment of such property is a natural consequence of the
marriage, and the husband’s refusal to return it constitutes a
criminal breach of trust under Section 406 of the Indian Penal
Code.
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27. Crucially, the facts of the present case must be distinguished
from those involving commercial transactions where "receipts"
are the primary evidence of ownership. In the present matrix,
we are dealing with matrimonial gifts, often ancestral or
received during social ceremonies, where formal invoices are
rarely generated or preserved. The Revisional Court failed to
appreciate that the partial recovery already effected by the
police on 23.08.2021 acted as a "factual validation" of the
petitioner’s claim. If the lack of receipts made the claim
"doubtful," then the initial recovery of several gold articles from
the matrimonial home should have been impossible. This partial
success creates a strong prima facie presumption that the
remaining articles, as listed in the FIR, are likely being
dishonestly retained.
28. Furthermore, the Revisional Court’s reasoning conflicts with the
principles established in Rashmi Kumar vs. Mahesh Kumar
Bhada [(1997) 2 SCC 397]. The ratio in Rashmi Kumar
underscores that the "entrustment" of stridhan is a matter to be
proved during trial, but for the purpose of investigation and
search, the specific description provided by the complainant is
sufficient to set the machinery in motion. By demanding "cash
memos" as a condition precedent for a search warrant or further
probe, the Sessions Judge has effectively applied the standard
of "proof beyond reasonable doubt," required for a final
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conviction, at the nascent stage of the investigation. This is a
patent misapplication of the law.
29. The principles of law governing Section 14 of the Hindu
Succession Act, 1956, further reinforce this point. Since stridhan
is the woman’s absolute estate, the state’s investigative
machinery is duty-bound to assist in its recovery when a
cognizable offense of misappropriation is disclosed. To stifle a
search on the ground of "lack of documents" is to denude the
victim of her statutory protection. The Magistrate’s order was a
"truth-seeking" directive intended to bridge the gap between the
"alleged list" and the "recovered list."
30. Consequently, sifting through the relevant provisions and the
cited authorities, this Court finds that the Revisional Court’s
obsession with "cash memos" was a legal fallacy. The lack of
receipts does not extinguish the fiduciary duty of the trustees
nor does it stifle the power of the Magistrate to order a search
for the recovery of the proceeds of crime. Therefore, the second
question is also answered in favour of the Petitioner that the
Magistrate was perfectly justified in directing further
investigation to trace the remaining ornaments, and the
Revisional Court's interference on the ground of "lack of
evidence" was premature and legally unsustainable.
31. The third point for determination brings into focus the impact of
chronological delay upon the validity of a criminal search,
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specifically, whether a three-year hiatus between the separation
of the spouses and the registration of the FIR can legally render
a further investigation under Section 173(8) "futile" or "stale”.
The Learned Revisional Court placed significant weight on this
"time-gap”, suggesting that the petitioner's silence from 2018 to
2021 cast such a shadow of doubt that any directive for
recovery was an exercise in futility.
32. In addressing this, it is necessary to examine the specific ratio
in Arun Vyas vs. Anita Vyas [(1999) 4 SCC 690], which was
cited to emphasize that matrimonial offences, particularly those
involving the retention of stridhan , cannot be viewed through
the narrow prism of chronological limitation. The ratio in Arun
Vyas (supra) propounds that the offence of criminal breach of
trust (Section 406 IPC) is a "continuing offence." Every day that
the husband or his kin dishonestly retain the property after a
demand for its return is made, a fresh period of limitation—if
applicable—begins to run. More importantly, the Court held that
the "ends of justice" and the protection of a woman’s right to
her property must take precedence over technical delays.
33. The Revisional Court failed to distinguish the facts of the present
case from those where delay is used as a tool for fabrication. In
the present matrix, the "delay" is not an indicator of a false
claim, but rather a reflection of the typical trajectory of
matrimonial discord where parties often wait for a reconciliation
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before resorting to criminal law. Furthermore, the factual reality
on record completely negates the "futility" argument. On
23.08.2021, three years after the separation, the police did
recover several articles from the matrimonial home. This
successful partial seizure is a physical fact that destroys the
Revisional Court’s theory that the passage of time had made the
property disappear. If some items were present in 2021, there
is a legitimate legal and factual basis to believe the remaining
gold ornaments are also being concealed within the same
premises.
34. This Court must also look at the principle of "Continuing Wrong"
as enshrined in Section 472 of the Code (now Section 524 of the
BNSS, 2023). The misappropriation of stridhan is not a "one-
time act" but a persistent state of dishonest retention. The ratio
in Vanka Radamanohari vs. Vanka Venkata Reddy [(1993) 3
SCC 4] further clarifies that in matrimonial disputes, the court
must adopt a liberal approach toward delay, ensuring that a
"hyper-technical view" does not result in the miscarriage of
justice. By labeling the search as "futile" due to delay, the
Sessions Judge effectively created a "judicial statute of
limitations" on the police’s power to recover stolen property, a
concept that is alien to the Code.
35. Furthermore, the Revisional Court's interference stands in
contradiction to the mandate of Section 14 of the Hindu
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Succession Act, which grants the petitioner an absolute right
over her stridhan . A delay in filing an FIR does not extinguish a
woman's proprietary title, nor does it denude the Magistrate of
his jurisdiction to order a recovery of the "proceeds of crime”.
The Magistrate’s direction to bridge the gap between the alleged
list and the actual recovery was a clinical exercise of judicial
duty intended to restore the victim to her rightful position.
36. Consequently, after analysing the cited authorities and
distinguishing the factual success of the 2021 seizure from the
Revisional Court's theoretical skepticism, I find that the
Magistrate acted with commendable foresight. The "time-gap"
was a matter of trial appreciation, not a bar to an investigative
search. The third point is thus answered in favour of the
Petitioner: the chronological delay did not render the search
"futile," and the Magistrate was legally justified in ordering the
investigation to reach its logical conclusion. The Revisional
Court’s reversal on this ground was both factually erroneous and
legally perverse.
37. The fourth point for determination mandates a scrutiny of the
judicial philosophy governing the competing interests of "speedy
disposal" versus "substantive justice" specifically, whether a
Revisional Court is justified in prioritizing the commencement of
a trial over the Magistrate’s directive to rectify a perfunctory
investigation. The Learned Sessions Judge, in her impugned
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judgment, expressed the view that since a Charge Sheet had
already been submitted, any further direction for recovery would
merely delay the trial and "not serve any useful purpose."
38. In addressing this, we must turn to the specific ratio in Vinubhai
Haribhai Malaviya vs. State of Gujarat [(2019) 17 SCC 1], a
decision that has fundamentally reshaped the landscape of pre-
trial procedure. The ratio in Vinubhai (supra) propounds that the
"search for truth" is the ultimate goal of the criminal justice
system and that a "fair investigation" is a fundamental right
guaranteed under Article 21 of the Constitution of India. The
Hon’ble Supreme Court held that this right to a fair investigation
is not a one-way street, it extends to the victim as much as the
accused. Consequently, a Magistrate’s power to ensure a
complete investigation remains vibrant until the actual
commencement of the trial.
39. The Revisional Court failed to distinguish the facts of the present
case from those where a trial is unnecessarily stalled for
frivolous reasons. In the present matrix, the "lacuna" identified
by the Magistrate was not formal or technical; it was a
substantive failure to recover high-value gold ornaments that
form the corpus of the offence under Section 406 IPC. To
suggest that a trial should proceed on a "skeletal" Charge Sheet
while the proceeds of the crime remain in the pockets of the
accused is to reduce the judicial process to a hollow formality.
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The Magistrate’s direction to bridge this gap was an act of
"filling the voids" to ensure that the trial, when it begins, is
based on a complete set of facts.
40. This Court finds that the Sessions Judge’s preoccupation with
"speedy disposal" conflicts with the principles of law established
in Hasanbhai Valibhai Qureshi vs. State of Gujarat [(2004) 5
SCC 347]. The ratio in Hasanbhai (supra) underscores that
"procedural technicalities should not be allowed to come in the
way of the court’s duty to find the truth." The Court
categorically held that if further investigation is necessary to
bring the real facts on record, it should be ordered even if it
causes some delay, as "speedy trial" cannot be a substitute for
a "fair trial." By reversing the Magistrate’s order, the Revisional
Court effectively prioritized the "closing of a file" over the
"recovery of property," a hierarchy of values that is alien to the
spirit of matrimonial jurisprudence.
41. Furthermore, one must consider the statutory mandate of
Section 14 of the Hindu Succession Act and Section 27 of the
Hindu Marriage Act. These provisions recognize stridhan as the
absolute estate of a woman. When the criminal machinery is
invoked for its misappropriation, the primary objective is the
restoration of the property. A trial that concludes without an
exhaustive effort to recover the stridhan results in a "paper
victory" for the victim but a "practical windfall" for the accused.
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The Magistrate, as the sentinel of the victim’s rights, correctly
identified that a search for the missing gold was an
indispensable prerequisite for a just trial.
42. Consequently, after analysing the cited authorities and
distinguishing the Magistrate’s "truth-seeking" intent from the
Revisional Court’s "form-over-substance" approach, I find that
the interference by the Learned Sessions Judge was legally
flawed. The Magistrate’s order was a remedial measure intended
to prevent a "failure of justice" caused by an indolent
investigation. The fourth point is thus answered in favour of the
Petitioner: the administrative goal of "speedy trial" cannot
override the statutory and constitutional requirement of a "fair
and complete investigation." The Revisional Court’s interference
on this ground was an overreach of its jurisdiction.
43. The final point for determination invites this Court to consider
whether a Revisional Court can legally substitute its own
subjective perception of a complainant’s "motives" for the
objective "investigative lacunae" identified by the Magistrate.
The Learned Sessions Judge, in her impugned judgment,
appeared to be influenced by the theory that the Petitioner’s
pursuit of criminal proceedings was a "pressure tactic" or an act
of "vengeance" aimed at settling matrimonial scores. This Court
must decide if such an inferential leap is permissible when the
record clearly demonstrates an incomplete recovery of property.
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CRR 4032 OF 2024
44. In addressing this, I must look at the seminal ratio in State of
Haryana vs. Bhajan Lal [1992 Supp (1) SCC 335]. While this
judgment is often cited for the quashing of FIRs, its specific ratio
propounds that the "motives" or "malice" of a complainant are
entirely secondary to whether the allegations disclose a
cognizable offense. The Court held that even if a complaint is
motivated by personal animosity, it cannot be stifled if it
warrants an investigation into a crime. The Revisional Court
failed to distinguish the facts of the present case from those
where a complaint is "patently absurd" or "inherently
improbable." Here, the allegation of misappropriation of stridhan
was not only probable but was partially corroborated by the
recovery already effected on 23.08.2021.
45. The Revisional Court’s logic that the accused had "ample
opportunity" to dispose of the jewellery and therefore the search
was a "futile exercise" is a speculative inference that lacks any
foundation in the Case Diary. This approach conflicts with the
principle of "Subjective Satisfaction of the Magistrate" as
articulated in H.N. Rishbud vs. State of Delhi [AIR 1955 SC
196]. The ratio in H.N. Rishbud establishes that the formation of
an opinion as to whether there is a case for trial is the exclusive
domain of the Magistrate based on the results of the
investigation. By labelling the search as "futile" based on a
personal theory of "motive," the Sessions Judge essentially
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CRR 4032 OF 2024
usurped the investigative agency’s function and the Magistrate’s
supervisory role.
46. Furthermore, the principles of matrimonial jurisprudence,
particularly the fiduciary nature of stridhan as discussed in
Pratibha Rani (supra), dictate that a woman's persistence in
recovering her absolute property should be viewed as a
vindication of her statutory rights under Section 14 of the Hindu
Succession Act, rather than being dismissed as "harassment."
To allow an accused to benefit from the theory that "too much
time has passed to find anything" creates a dangerous
precedent. It effectively rewards the successful concealment of
stolen property. The Magistrate’s order was a clinical attempt to
bridge the gap between the Petitioner's list of gold and the
Investigating Officer’s skeletal recovery.
47. This Court finds that the Revisional Court’s interference stood on
the shaky ground of "surmises and conjectures." A judicial order
under Section 397/401 of the Code cannot be sustained if it is
based on a skeptical view of the complainant's character rather
than the material facts of the investigation. The Magistrate
identified a specific void, the missing high-value ornaments, and
sought to fill it. The Revisional Court’s interference on the
grounds of "perceived motives" was, therefore, a jurisdictional
overreach.
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CRR 4032 OF 2024
48. Consequently, after sifting through the relevant precedents and
distinguishing the factual reality of an incomplete recovery from
the Revisional Court’s theoretical skepticism, the final point is
answered in favour of the Petitioner. The "motive" of the
complainant is irrelevant when the "proceeds of crime" remain
untraced. The Magistrate’s direction for further investigation was
a legitimate exercise of his power to ensure a fair and complete
investigation. The Revisional Court’s reversal of that order was
legally perverse and resulted in a manifest miscarriage of
justice.
49. On a holistic appreciation of the facts and the legal principles
discussed hereinabove, this Court is of the firm view that the
Learned Revisional Court has committed a manifest error of law
by substituting its own skepticism for the objective judicial
satisfaction of the Magistrate. The record reveals a glaring
disparity between the specific schedule of stridhan provided by
the petitioner and the skeletal recovery effected by the
investigating agency. In a matrimonial offense involving criminal
breach of trust, the investigation cannot be deemed "complete"
so long as the substantial corpus of the offense, in this case,
high-value gold ornaments, remains untraced due to a
perfunctory search. To treat the filing of a Charge Sheet as a
statutory ceiling that prevents the recovery of a victim’s
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CRR 4032 OF 2024
absolute property is to reduce the judicial process to a mere
administrative ritual.
50. The legal position that emerges is that the power of a Magistrate
to ensure a "fair and complete investigation" under Section
173(8) of the Code remains vibrant and untrammelled until the
actual commencement of the trial. This power is not a matter of
formal procedure but is a fundamental facet of the right to a fair
trial under Article 21 of the Constitution. As propounded in the
ratios of Vinubhai Haribhai Malaviya (supra) and Amrutbhai
Shambhubhai Patel (supra), the Magistrate is the master of the
investigation and is duty-bound to bridge any investigative
lacunae that would otherwise result in a failure of justice. The
Revisional Court, by interfering with a discretionary, truth-
seeking order of the Magistrate, exceeded its jurisdiction and
prioritised "speedy disposal" over the "rule of trust" that
governs the protection of stridhan .
51. Furthermore, the chronological delay and the absence of "cash
memos" are evidentiary nuances to be weighed during the
appreciation of evidence at trial; they cannot operate as a
jurisdictional bar to the conduct of an investigative search. The
fact that the police successfully recovered several articles from
the matrimonial home in 2021, three years after the separation,
is the most damning factual evidence against the theory that a
further search would be "futile." To allow the husband and his
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CRR 4032 OF 2024
kin to retain the remaining stridhan under the pretext of "lack of
documents" or "delay" would be to institutionalize the
misappropriation of a woman’s absolute estate, thereby
defeating the mandates of Section 14 of the Hindu Succession
Act.
52. Consequently, the impugned judgment and order of the
Revisional Court cannot be sustained in the eye of law. The
Magistrate’s order was a robust exercise of judicial propriety
intended to ensure that the "proceeds of crime" are not
successfully concealed by the accused. The interference by the
Learned Sessions Judge has resulted in a miscarriage of justice
that warrants the corrective intervention of this Court in its
revisional jurisdiction.
53. Accordingly, the instant Criminal Revision being CRR 4032 of
2024, is allowed.
54. Interim order/orders, if any, stand disposed of accordingly.
55. The judgment and order dated 22.08.2024 passed by the
Learned Sessions Judge in Criminal Revision No. 04 of 2022, is
hereby set aside and quashed.
56. The order of the Learned Additional Chief Judicial Magistrate
dated 18.12.2021 is restored in its entirety.
57. The Investigating Agency is directed to:
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CRR 4032 OF 2024
(i) Carry out a robust further investigation as directed by
the Learned Magistrate to trace and recover the
remaining stridhan articles mentioned in the FIR.
(ii) Utilize all investigative tools at their disposal,
including but not limited to, the interrogation of the
custodians and searches of premises where the
property is reasonably suspected to be concealed.
(iii) Submit a supplementary report under Section 173(8)
of the Code before the Learned Magistrate within a
period of eight weeks from the date of communication
of this order.
58. The Learned Magistrate shall, upon receipt of such
supplementary report, proceed in accordance with the law to
ensure that the trial commences only after the investigative
gaps are addressed to the satisfaction of the Court.
59. There shall be no order as to costs.
60. Let a copy of this judgment be communicated to the Learned
Court below and the concerned Police Station forthwith for
immediate compliance.
61. The Trial Court Record (TCR), if any, shall be sent down to the
Trial Court, at once.
62. Case diary, if any, be returned forthwith.
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63. Urgent photostat certified copy of this judgment, if applied for,
be supplied to the parties upon compliance with all requisite
formalities.
(Uday Kumar, J.)