Punjab-Haryana High Court
Ashok Kumar And Another vs State Of Punjab And Others on 14 September, 2009
Author: K.C. Puri
Bench: K.C. Puri
Crl. Misc. No.M.18240 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Misc. No.M.18240 of 2009
Date of decision: 14 .9. 2009
Ashok Kumar and another ... Petitioners.
Versus
State of Punjab and others ..... Respondents.
CORAM:- HON'BLE MR. JUSTICE K.C. PURI
Present: Mr. Sanjeev Aggarwal, Advocate, for the petitioners.
Mr. K.S.Pannu, DAG, Punjab.
Mr. A.P.S.Deol, Senior Advocate with
Mr. Devinder Bir Singh, Advocate for the complainant.
K.C. PURI, J.
This is a petition under Section 482 of the Code of Criminal Procedure (in short - Cr.P.C.) for quashing of FIR dated 7.7.2009 (Annexure P-16) in lieu of complaint R No.361/5C, Penal No.4 Neeru Gupta vs. Avneet Kumar Gupta and others (Annexure P-
13) pending before the Women Cell, Mini Secretariat Bhatinda (Punjab) and for quashing of the notice issued under Section 160 Cr.P.C. (Annexure P-10) issued by the Investigating Officer pressing for appearance in person at Bhatinda in the above mentioned case Crl. Misc. No.M.18240 of 2009 2 and also for directions to respondent No.2 for protection of life and liberty of the petitioners and his family members at the instance of respondent No.5 and further respondents be directed not to harass or humiliate the petitioners and their family members.
It is alleged by the petitioners that Gurdas Garg father respondent No.5 Neeru Gupta, is a very influential person in Bhatinda and is a known as "land mafia" having all the financial and muscle power in the local area and is able to regulate the Government functionaries at his command and will. The petitioners and their family have been fastened by wedding his serious brain disorder and abnormal daughter (respondent No.5). However, the behaviour of respondent No.5, after the marriage, was abnormal but the truth regarding the abnormality came out when incidentally on account of pregnancy, she was taken to the Premier Hospital in Delhi Max Balaji Hospital for the purpose of medical check up and during the course of check up, suddenly respondent No.5 sustained a mental fit and since the said hospital was having all facilities, the doctor attending her preferred to put her on required brain MRI and related test, although respondent No.5 would have avoided such test in order to conceal her mental illness, but said test revealed having serious mental disorder of the nature which was existing since long and being old in nature. The petitioners, in a bona fide manner, made endeavour to get a possible treatment for the respondent No.5 as regard to her mental disorder. However, her medical report clearly depicted a very old existing mental disorder. This fact came Crl. Misc. No.M.18240 of 2009 3 as a shock to the family of the petitioners and in this way they were cheated by the father of respondent No.5 by such concealment and the father of the respondent No.5 was confronted with the said fact along with details and proof but the father of the respondent No.5 intentionally avoided to reply and interfere in the matter and only said that the respondent No.5 is now the life long burden of the petitioners.
It has also been alleged that despite all this, respondent No.5 and her father made each and every attempt to reinstate the respondent No.5 in the house of the petitioners even by use of force or legal means.
It has been further alleged that respondent No.5 has also filed two complaint cases before the Court of Additional Chief Metropolitan Magistrate, New Delhi under Section 12 D.V.Act and No.113/1/08 under Section 125 Cr.P.C. The respondent No.5 has claimed on oath that she is resident of House No.5685, Ist Floor, Nai Sarak Chandni Chowk, Delhi-110006 and on such statement on oath, a court of law believing prima facie on her statement had issued notice against the opposite party. Respondent No.5 has herself declared and submitted to the territorial jurisdiction of the Police Station Chandni Chowk on the basis of her above statement on oath and therefore there is no occasion for any such complaint with the same subject matter to be either lodged or proceeded for investigation at the Police Station, Bhatinda and the said complaint is therefore being prosecuted against the answering persons without Crl. Misc. No.M.18240 of 2009 4 any jurisdiction. Respondent No.5 has also filed two complaint cases before the Court of Additional Chief Metropolitan Magistrate, New Delhi by way of complaint claimed and declared herself to be the resident of House No.5685, Ist Floor, Nai Sarak, Chandni Chowk, Delhi. It has been further alleged that Ms.Neeru Gupta has herself communicated to have a divorce from Avneet Kumar Gupta and by way of specific SMS message sent by her on the mobile phone No.98100074212 on 28.4.2009 and from mobile No.9988020060 stating that "I Want take divorce fm your son. Plz do it as early as possible." These facts were even not denied by the respondent No.5 before the learned Court at Delhi.
On notice, respondents No.1 to 4 appeared and filed reply by way of affidavit of Dilbag Singh, PPS, Deputy Superintendent of Police (City) Bhatinda on their behalf.
By way of preliminary objections, it has been alleged that after due enquiry on application moved by respondent No.5, case FIR No.477 dated 7.7.2009 under Sections 498-A, 406 and 506 IPC has been registered in Police Station Kotwali Bhatinda against Avneet Kumar, Ashok Kumar and as such the present petition has become infructuous and the present petition is misuse of process of law.
On merits, it has been alleged that Neeru Gupta-
respondent No.5 has joined the enquiry conducted by Women Cell, Bhatinda on application No.311/9W.C.dated 18.5.2009 and during the equiry Neeru Gupta (respondent No.5) behaved well and she has Crl. Misc. No.M.18240 of 2009 5 not been found suffering from any disease at any stage during the enquiry, therefore, the allegations against her that she has been suffering from brain disorder are totally wrong. It has been further asserted that father of respondent No.5 is a businessman and respectable person of Bhatinda City and the allegations that he is influential person or known land mafia or that he is able to regulate the Government functionaries at his command at will are totally wrong and false. Denying other averments, they prayed for dismissal of the petition.
Respondent No.5 also in her reply denied all the allegations and controverted the same.
I have heard learned counsel for the parties and have gone through the records of the case with their assistance.
The first ground for challenging the FIR by the counsel for the petitioners is regarding jurisdiction of the Court at Bhatinda. It is contended that parties were residing at Delhi or Gaziabad. The marriage has taken place at Gaziabad and as such the Court at Bhatinda has no jurisdiction.
I have carefully considered the said submission but do not find any force in that submission.
From the bare reading of FIR, it is revealed that number of articles have been stated to be entrusted at Bhatinda. Section 178 Cr.P.C., lays down that when offence is partly committed in one local area and partly in another area and offence is continuing on, then the same being required or tried by a Court in any of those areas. Crl. Misc. No.M.18240 of 2009 6
Clause 4 of Section 181 Cr.P.C., makes the thing crystal clear, which lays down as under :-
"Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person."
From the perusal of the same, it is revealed that the offence of criminal misappropriation or breach of trust may be tried into the local jurisdiction where any part of the property was received or retained or was required to be returned or accounted for. So, from the bare perusal of the FIR, it reveals that some of the dowry articles were entrusted at Bhathinda. The complainant is stated to be residing at Delhi. So, her articles have to be returned there. Therefore, the local Courts at Bhathinda have jurisdiction.
Learned counsel for the petitioners have submitted that regarding same set of allegations, complaint under Section 19 and other provisions of the Protection of Women from Domestic Violence Act, 2005 (in short - the Act) has been filed at Delhi. The complainant is not appearing there. On the same set of allegations, the present FIR cannot be registered at Bhathinda.
I have considered the said submission but the same is without any merit, in view of Section 5(E) of the Act, which Crl. Misc. No.M.18240 of 2009 7 envisaged as under :-
"5. Duties of police officers, service provides and Magistrate.- A police officer, Protection Officer, service provider or Magistrate who has received a complaint of domestic violence or is otherwise present at the place of an incident of domestic Violence or when the incident of domestic violence is reported to him, shall inform the aggrieved person -
(a) xx xx xx xx xx xx xx xx xx xx xx
(b) xx xx xx xx xx xx xx xx xx xx xx
(c) xx xx xx xx xx xx xx xx xx xx xx
(d) xx xx xx xx xx xx xx xx xx xx xx
(e) of her right to file a complaint under section 498A of the Indian Penal Code , wherever relevant.
From the bare reading of Section 5(e), it is crystal clear that wife has been given right to file complaint under Section 498-A IPC in addition to the complaint under the said Domestic Violence Act. So, it cannot be said that there are parallel proceedings.
Learned counsel for the petitioners has further submitted that there is delay of two years in filing the complaint inasmuch as according to the allegations the wife is residing separately for the last two years. To buttress his contention, learned counsel for the petitioner has relied upon Thulia Kali vs. The State of Tamil Nadu (1972) 3 Supreme Court Cases 393.
Crl. Misc. No.M.18240 of 2009 8
I have carefully considered the said submission and have gone through the said authority.
Authority in Thulia Kali's case (supra) relates to offence punishable under Section 302 IPC based upon circumstantial evidence. In offence under Section 498-A IPC and 406 IPC, the property is entrusted to the accused and gives a continuous cause of action to the wife to claim the same. So, offence under Sections 406 and 498-A, IPC cannot be equated with offence punishable under Section 302 IPC based upon circumstantial evidence.
Learned counsel for the petitioners has further submitted that from the allegations offence under Section 3 and 4 of the Dowry Prohiition Act at the most can be made out. The limitation for filing the FIR in that case is one year and on that account, complainant has cleverly not added that offence. It is contended that offence under Sections 406 and 498-A IPC is not made out.
I have carefully considered the said submission but do not find any force in that submission. There is no allegation of Section 3 and 4 of the Dowry Prohibition Act. It cannot be prima facie said that the said provisions have not been added simply to make out a false case. There are specific allegations against the petitioners, in respect of offence u/s 498-A & 406 IPC.
The Hon'ble Apex Court in Monica Kumar (Dr.) and another vs. State of Uttar Pradesh and others (2008) 3 Supreme Court Cases (Crl.) 649 held that inherent power of the High Court under Section 482 Cr.P.C. cannot be invoked that there is mala fide Crl. Misc. No.M.18240 of 2009 9 on the part of the complainant. Where facts are hazy and evidence has not yet been collected normally the High Court should refrain from giving a prima facie decision by invoking Section 482 Cr.P.C. It has been further laid down in the said ruling that petition under Section 482 Cr.P.C. should not to stifle a legitimate prosecution. It has been further laid down in that ruling that while invoking provisions under Section 482 Cr.P.C., the High Court does not function as a court of appeal or revision. At the stage of invoking Section 482 can be resorted/if there is an abuse of the process of the Court. There is nothing on the file that present complaint is an abuse of the process of the Court.
So, in view of the above discussion, petition is without any merit and the same stands dismissed.
September 14 , 2009 ( K.C. PURI ) sv JUDGE