Rajasthan High Court - Jaipur
Gulshan Kapoor And Ors vs State Of Raj Asthan And Anr on 25 August, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S. B. CRIMINAL MISC. PETITION No.2104/2009. : : Gulshan Kapoor & Ors. Vs. State of Rajasthan & Anr. : : Date of Order : 25.8.2011 HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Mr. Anurag Sharma for the petitioners. Mr. Yogesh Singhal for the complainant-non-petitioner. Mr. Amit Poonia, P. P. for the State. BY THE COURT :
Reportable Heard learned counsel for the parties.
2. The accused-petitioners have preferred this criminal misc. petition under Section 482 Cr.P.C. for quashing the proceedings pending against them in the Court of Judicial Magistrate No.4, Bharatpur for the offence under Section 498-A IPC and Section 4 of Dowry Prohibition Act in Regular Criminal Case No.2/2005 and also to set aside the impugned order dated 20.7.2009 whereby learned trial Court dismissed the application filed on behalf of the petitioners under Section 177 Cr.P.C.
3. The brief relevant facts for the disposal of this petition are that the marriage of non-petitioner-complainant Smt. Usha was performed with petitioner No.3 Naresh Kumar on 13.4.2000 at Delhi and at that time both the parties were residing at Delhi itself. The non-petitioner lodged a written report on 3.12.2000 at Police Station Mandawali, District Delhi (East) against the petitioners and some other family members for the offences under Sections 498-A and 406 IPC and upon that formal FIR No.192/2001 for the above offences was registered on 25.6.2001. The Delhi Police after investigation submitted charge-sheet against seven persons including present petitioners for the above offences on 29.9.2001. Thereafter, the non-petitioner-complainant filed Criminal Misc. Petition No.4350/2003 before Hon'ble Delhi High Court with the prayer that proceedings arising out of FIR No.192/2001 may be quashed. The Hon'ble Delhi High Court looking to the fact that compromise has been arrived at between the parties and the non-petitioner-complainant and the accused-petitioner Shri Naresh Kumar have decided to live together was pleased to quash the FIR and the proceedings pending before the competent Court arising out of the FIR vide order dated 28.10.2003. Thereafter, the non-petitioner-complainant submitted a complaint in the trial Court for the offences under Section 498-A and 406 IPC and Section 4 & 5 of Dowry Prohibition Act against 15 persons including the petitioners and that complaint was sent for investigation under Section 156 (3) Cr.P.C. to Police Station Atalband, District Bharatpur and upon that FIR No.28/2004 for the above offences was registered. In this complaint, apart from other facts it was averred that even after compromise between the parties, the husband of the complainant and his family members continued to demand dowry and when their demand was not fulfilled they ill-treated her and she was thrown out from her matrimonial home on 15.11.2003 and after that she is residing with her father at Bharatpur. The Police after investigation filed charge-sheet against the present petitioners only for the offence under Section 498-A IPC and Section 4 of the Dowry Prohibition Act. The learned trial Court took cognizance and petitioners appeared before the Court. Thereafter, the petitioners filed SB Criminal Misc. Petition No.1258/2005 before this Court with a prayer that proceedings pending before the trial Court may be quashed. The petitioners also filed an application under Section 177 Cr.P.C. before the trial Court on 29.4.2005 praying therein that the trial Court does not have jurisdiction and the proceedings pending before it are liable to be set aside. It is to be noted that on the prayer of the petitioners Criminal Misc. Petition No.1258/2005 was dismissed as withdrawn vide order dated 14.7.2006. The non-petitioner-complainant filed a reply to the application submitted by the petitioners under Section 177 Cr.P.C. on 26.7.2007 and the trial Court after hearing both the parties vide impugned order dated 20.7.2009 dismissed that application. Being aggrieved, the petitioners are before this Court by way of this petition.
4. Assailing the impugned order, the learned counsel for the petitioners has submitted as follows :
(i) Even according to the facts narrated in the complaint itself cause of action for an offence cannot be said to have arisen within the jurisdiction of the trial Court and thus, the trial Court was not competent to take cognizance on the charge-sheet filed by the police and to undertake further proceedings. In the complaint there is no instance of any incident of cruelty at Bharatpur or at any place in whole of the Rajasthan and in absence of any incident at Bharatpur the offence under Section 498-A and Section 4 of the Dowry Prohibition Act could not be tried at Bharatpur. Thus, the whole proceedings pending before the learned trial Court are liable to be quashed for lack of jurisdiction.
(ii) In the complaint, it is averred that only six to seven months after marriage the complainant was thrown out of her matrimonial home and she was left at Bharatpur Railway Station, but such facts were not stated in the FIR lodged at Delhi and this is a clear indication of the fact that no such incident took place and this fact has been alleged only to show that the offence punishable under Section 498-A continued even upto Bharatpur and thus a Court situated at Bharatpur has jurisdiction to try it.
(iii) It is an admitted fact that the parties came to a compromise and the complainant herself filed petition before Hon'ble Delhi High Court and Hon'ble Court after satisfying itself that the parties have agreed to live together as husband and wife was pleased to quash the proceedings pending in the competent court on the basis of FIR lodged by the complainant. There is no evidence even prima facie of record as to show that after that any cruelty was committed on the complainant even at Delhi.
(iv) In the FIR lodged at Delhi, allegation against only seven persons were levelled whereas in the complaint submitted in Bharatpur Court allegations have been levelled against fifteen persons and this fact itself indicates that the whole case is false and baseless.
In support of his submissions, the learned counsel for the petitioners has relied upon the cases of Harmanpreet Singh Ahluwalia & Ors. Vs. State of Punjab & Ors. reported in (2009) 7 SCC 712 and Y. Abraham Ajith & Ors. Vs. Inspector of Police, Chenni & Anr. reported in (2004) 8 SCC 100.
5. On the other hand, learned counsel for the non-petitioner-complainant supporting the impugned order submitted that the complaint/FIR submitted by the complainant prima facie reveals that even after compromise, the petitioners and other family members of the petitioner No.3 continuously harassed and ill-treated the complainant in connection with demand of dowry and on 15.11.2003 the complainant was compelled to leave her matrimonial home and since then she is residing with her father at Bharatpur. It was also submitted that as a result of ill-treatment inflicted by the petitioners, the complainant was forced to leave her matrimonial home and thus consequence of the offence committed by the petitioners continued even upto Bharatpur and thus the police station and the Court situated at Bharatpur has also jurisdiction to investigate and deal with the criminal proceedings instituted on the complaint/FIR lodged by the complainant. It was also submitted that at this stage of the proceedings the place of trial of an offence can be determined only on the basis of averment made in the complaint. In support of his submissions, the learned counsel for the non-petitioner relied upon the case of Varinder Singh & Ors. Vs. State of Rajasthan & Ors. reported in 2011 (2) WLC (Raj.) 473 and Kanhaiya Lal & Ors. Vs. State of Rajasthan & Anr. 2008 Cri.L.J. 3220.
6. I have considered the submissions made on behalf of the respective parties and also gone through the material made available for my perusal as well as the relevant legal provisions and the case law cited on behalf of the parties.
7. The main issue for consideration in this petition is whether the criminal proceedings initiated by the non-petitioner herein at Bharatpur against petitioners are maintainable or not for lack of jurisdiction. The other question arising for consideration is whether the proceedings pending before the trial Court are liable to be quashed by the reason that from the complaint/FIR, the offence under Section 498-A IPC and Section 4 of Dowry Prohibition Act, even prima facie is not made out.
8. So far as, the issue regarding territorial jurisdiction about the criminal proceedings initiated by the non-petitioner is concerned, it is desirable to refer the relevant legal provisions and the contents of complaint/FIR :
Chapter XIII of the Code of Criminal Procedure, 1973 deals with jurisdiction of the criminal courts in inquiries and trials. Sections 177-179 are relevant which are as follows :
177. Ordinary place of inquiry and trial. - Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.
178. Place of inquiry or trial. - (a) when it is uncertain in which of several local areas an offence was committed, or
(b) where an offence is committed partly in one local area and partly in another, or
(c) where an offence is a continuing one, and continues to be committed in more local areas than one, or
(d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.
179. Offence triable where act is done or consequence ensues. - When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.
From the above provisions, it is clear that the normal rule is that the offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. However, when it is uncertain in which of several local areas an offence was committed or where an offence is committed partly in one local area and partly in another or where an offence is a continuing one, and continues to be committed in more than one local area and takes place in different local areas as per Section 178, the Court having jurisdiction over any of such local areas is competent to inquire into and try the offence. Section 179 makes it clear that if anything happened as a consequence of the offence, the same may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.
9. Keeping the above provisions in mind, let us consider the allegations made in the complainant/FIR. In the present complaint/FIR, the non-petitioner-complainant after narrating the facts about her marriage with petitioner No.3 Shri Naresh Kapoor and the ill-treatment inflicted upon her by her husband and his family members, the non-petitioner has averred that about 6 to 7 months after marriage she was beaten and was left at Railway Station, Bharatpur and the 'Stridhan' was not returned even upon demand being made. It was also averred that since then she is residing with her father at Bharatpur. In the complaint/FIR, it was further averred that even after compromise she was ill-treated in connection with demand of dowry and ultimately on 15.11.2003 she was thrown out from her matrimonial home and she was compelled to come and live with her father at Bharatpur. Thus, it is clear that as a consequence of ill-treatment inflicted upon the complainant from time to time and demand of dowry, ultimately on 15.11.2003 she was thrown out of her matrimonial home and as a result of that she was compelled to come and reside with her father at Bharatpur. I am of the view that in the light of the fact that the complainant was compelled to come and reside with her father as a consequence of ill-treatment inflicted by the petitioners at Delhi, the police station/court situated at Bharatpur has also jurisdiction to inquire into or try the offence allegedly committed by the petitioners. Section 179 Cr.P.C. makes it clear that if anything happened as a consequence of the offence, the same may be inquired into or tried by a court within whose local jurisdiction such thing has been done or such consequence has ensued.
10. The Hon'ble Supreme Court recently in the case of Sunita Kumari Kashyap Vs. State of Bihar & Anr. reported in AIR 2011 SC 1674 almost in a similar set of facts came to a conclusion that the Court situated at Gaya also has jurisdiction to proceed with the criminal proceedings initiated on behalf of the complainant although the ill-treatment upon the complainant in connection with demand of dowry was mainly inflicted at her matrimonial home situated at Ranchi because as a result of continuous torture and unbearable treatment of her husband and in-laws the complainant had no other option, but to come at her parental home situated at Gaya. The Hon'ble Supreme Court for arriving such a conclusion relied upon the case of Sujata Mukherjee Vs. Prashant Kumar Mukherjee reported in AIR 1997 SC 2465 and State of M.P. Vs. Suresh Kaushal & Anr. reported in 2003 (11) SCC 126. It is to be noted that Hon'ble Apex Court also considered the case of Y. Abraham Ajith & Ors. Vs. Inspector of Police, Chennai & Anr. reported in 2004 (8) SCC 100 and Bhura Ram & Ors. Vs. State of Rajasthan & Anr. reported in 2008 (11) SCC 103, but distinguished these cases being based on different set facts.
11. In the present case, in my view at this stage of the proceedings prima facie it appears that after compromise between the parties before the Hon'ble Delhi High Court, the non-petitioner-complainant again started living with her husband and in-laws, but only few days after that, she was again treated with cruelty in connection with demand of dowry and she was compelled to leave her matrimonial home on 15.11.2003 and she came to her parental home at Bharatpur. In the light of the specific assertion of the non-petitioner about ill-treatment and cruelty at the hands of the petitioners at Delhi and of the fact that because of their action she was compelled to leave her matrimonial home for not fulfilling their demand of dowry and in such circumstances she is now residing with her father at Bharatpur, I am of the considered view that in the light of Section 178 & 179 Cr.P.C., offence in this case was continuing one having committed in more local areas and one of the local area being Bharatpur, the Court below at Bharatpur has jurisdiction to proceed with the criminal case institute therein.
12. So far as the case of Y. Abraham Ajith & Ors (supra) is concerned, I am of the view that it is of no help to the petitioners being based on different set of facts. The facts of that case reveal that even by bare reading of the complaint, it was found that no part of the cause of action arose within the jurisdiction of the Court where the complaint was filed. In that case, it was also found that the complainant of that case herself left the house of the husband on account of alleged dowry demands made by the husband and his relations and thereafter not even a whisper of allegations about any demand of dowry or commission of any act constituting an offence was levelled. In the present case, the facts available on record prima facie show that the non-petitioner-complainant did not leave her matrimonial home at her own will, but she was thrown out of her matrimonial home on 15.11.2003 and was compelled to come and reside with her father at Bharatpur. Similarly the facts of the case of Harmanpreet Singh Ahluwalia & Ors (supra), are entirely different. The facts show that the husband and wife were although married in India, but settled in Canada and during that period matrimonial differences arose between them and they started living separately in Canada itself. After that the father of the wife came to India and lodged complaint against the husband and his family members in the year 2006. In that set of facts the Hon'ble Apex Court came to a conclusion that the Court situated in India does not have jurisdiction to proceed with the criminal proceedings commenced against the husband and his family members.
13. So far as this contention made on behalf of the petitioners, that even prima facie no offence is made out from the perusal of the complaint/FIR itself, is concerned, I am of the view that the present case is not such a case in which at this stage of the proceedings this Court by exercising its inherent jurisdiction under Section 482 Cr.P.C. set aside and quash the criminal proceedings pending before the trial Court. The Hon'ble Supreme Court in various cases from time to time has laid down some guidelines for exercising of inherent powers by the High Court to quash criminal proceedings in exceptional cases. It has been laid down that :
When the criminal law machinery is set in motion, the superior courts should not mechanically use either their inherent powers or writ jurisdiction to intervene with the process of investigation and trial. However, such forms of judicial review can be exercised to prevent a miscarriage of justice or to correct some grave errors that might have been committed by the subordinate courts.
It has also been held that :
Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused and where a criminal proceedings is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, the High Court in exercise of its inherent power can quash such FIR/complainant or the proceedings.
14. Looking to the facts and circumstances of the present case, I do not find it a case of such a nature in which this Court by exercising its inherent power under Section 482 Cr.P.C. should quash the FIR and also the criminal proceedings pending before the trial Court as a result of it.
15. Consequently, the criminal misc. petition filed under Section 482 Cr.P.C. on behalf of the petitioners being devoid of any substance is, hereby, dismissed.
(PRASHANT KUMAR AGARWAL),J.
A.Arora/-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
AMIT ARORA JUNIOR PERSONAL ASSISTANT.