Rajasthan High Court - Jaipur
Nanak Chand Sejwani vs State Of Rajasthan And Anr on 17 May, 2013
Author: R.S.Chauhan
Bench: R.S.Chauhan
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER Nanak Chand Sejwani Versus State of Rajasthan & Anr. SB CRIMINAL MISC. PETITION NO.3303/2012 UNDER SECTION 482 CR.P.C. FOR QUASHING OF FIR NO.108/2012 REGISTERED AT POLICE STATION MAHILA THANA, JAPUR CITY (EAST) FOR OFFENCES UNDER SECTIONS 498A, 406, 420, 467, 468, 471, 120B IPC. Date of Order :- May 17th, 2013 REPORTABLE PRESENT HON'BLE MR. JUSTICE R.S.CHAUHAN Mr. M.M. Ranjan, Sr. Advocate, Mr. A.K. Srivastava, Mr. P.K. Soni & Mr. Sanjay Verma, for the petitioner. Mr. Peeyush Kumar, Public Prosecutor for the State.
Mr. S.S. Hora & Mr. Vijay Gupta, for the respondent No.2.
The petitioner has prayed for quashing of the FIR No.108/2012, registered at Police Station Mahila Thana, Jaipur City (East) for offences under Sections 498A, 406, 420, 467, 468, 471, 120B IPC.
Briefly stated the facts of the case are that on 22.5.1998, the petitioner's son, Anil Kumar, was married to respondent No.2, Smt. Manju Sejwani, in accordance with the Hindu rites and customs. Prior to her marriage, Smt. Manju was a permanent resident of Spain where she lived with her brothers and parents. While in Spain, she worked and earned for herself. After her marriage while she stayed at Jaipur, she was uncomfortable and insisted that she be permitted to go back to Spain. She stayed with her in-laws in Jaipur for five to six months. In November, 1998, she went back to Spain. In February, 1999, she bore a son. In August, 1999, the petitioner's son, Anil Kumar, also migrated to Spain. From August, 1999 till October, 2009 i.e. almost for a decade, Anil and Manju stayed together in Spain. However, after 2002, Manju's marriage became rocky to the extent that Manju and her husband had a temporary split in 2002. Without informing her, Anil left Spain alongwith their son and returned to India. In order to recover the custody of the child, Manju rushed to India, filed a habeas corpus petition before this court; this court granted her the custody of the child. Therefore, in May, 2002, she returned back to Spain alongwith her child. Due to interference of the relatives, a settlement was arrived at between Manju and her husband, Anil; they tried to patch-up their marriage. From 2002 to 2005, Anil's family migrated to Spain. With the migration of the petitioner and his other family members, things again worsened in Manju's marriage. On four different occasions, Anil lodged divorce petitions before the competent court at Spain. Unfortunately, the couple got more and more embroiled in litigation in Spain.
Since things were getting from bad to worse for Manju, she came back to India in August, 2012. She resided with her father-in-law, the petitioner who was in India at that time. However, according to Manju, the petitioner continued with his unreasonable demands of seeking money from Manju's family. Therefore, she filed a criminal complaint before the Metropolitan Magistrate No.15, Jaipur Metropolitan. The criminal complaint was not only filed against the petitioner, but also against his other family members including her husband, Anil Kumar. In the complaint, she narrated the facts as to how immediately after her marriage, she had been subjected to mental and physical cruelty by Anil and his family members, how they had taken away her jewelry, her clothes and had refused to return her Stridhan which was entrusted to them in Jaipur, how she was tortured by them while she was in Spain, how her husband, Anil, had committed forgery and had deprived her of her shops in Spain, how the accused persons had sold those shops in Spain and had bought property in Jaipur with the sale proceeds, how they had demanded large amount of money from her and her parents, both in Spain and in Jaipur, in August and September, 2012. The complaint was sent for further investigation under Section 156(3) Cr.P.C. On the basis of the said complaint, the police registered a formal FIR, namely FIR No.108/12 at Police Station Mahila Thana, Jaipur City (East) for the aforementioned offences. Hence, this petition before this court for quashing the same.
Mr. A.K. Srivastava, the learned counsel for the petitioner, has raised the following contentions before this court: firstly, since 2002, both Manju and her husband are involved in a series of litigation both in India and in Spain. While Anil had filed a series of divorce petitions against her, she had filed a habeas corpus petition against the petitioner's son Anil. Thus, there is a grave animosity that does exist between Manju and her husband and her husband's family.
Secondly, the FIR is a motivated one. Manju has lodged the FIR in order to wreck personal vengeance upon her husband and his family members. Her personal vengeance is apparent from the fact that although in the FIR she claims that she came back to India in August 2012, she does not give any reason for coming back to India. According to her, she realized that the petitioner, her father-in-law, had come back to Jaipur. Therefore, she had followed him. The fact that she followed her father-in-law without any rhyme or reason, the fact that subsequently she lodged a FIR against the petitioner and his family members, clearly proves that she wants to wreck personal vengeance against the petitioner and his family members. Moreover, she has leveled vague allegations against the petitioners.
Thirdly, relying on the case of State of Haryana and Others Vs. Bhajan Lal and Others [1992 Supp (1) SCC 355], the learned counsel has pleaded that the present case falls under the circumstances Nos.5, 6 and 7 as laid down in the said case. According to condition No.6, if there is a legal bar against the filing of a FIR, then the FIR should be quashed.
Fourthly, Section 188 read with Section 177 and Sections 2(g) and 2(h) Cr.P.C. cover the present case. According to Section 177 Cr.P.C., the ordinary place of inquiry and trial shall be by a court within whose local jurisdiction the offence has been committed. The word inquiry has been defined under Section 2(g) as every inquiry, other than a trial, conducted under this Code by a Magistrate or Court. Section 188 Cr.P.C. claims that when an offence is committed outside India by a citizen of India, whether on high seas or elsewhere, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found. However, according to proviso, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.
According to the learned counsel, since the acts of cruelties complained by Manju had taken place in Spain, the offences had occurred outside India. Thus, according to the aforesaid proviso, the offences cannot be inquired into without the sanction of the Central Government. Since there was no sanction granted by the Central Government, therefore, there is a legal bar for inquiring and for trying the case by a court in Jaipur.
Relying on the case of Samarudeen Vs. Assistant Director of Enforcement, Trivandrum & Ors. [1995 Cr.L.J. 2825 (Kerala)], the learned counsel has contended that even investigation by the police would be covered under Section 188 Cr.P.C. Therefore, even the police cannot investigate the case until and unless there is a sanction given by the Central Government. Furthermore, relying on the case of Fatma Bibi Ahmed Patel Vs. State of Gujarat & Anr. [AIR 2008 SC 2392], the learned counsel has contended that even cognizance cannot be taken by the court when the offences are patently committed outside India. Hence, he has contended that due to the bar contained in Section 188 Cr.P.C., the present case squarely falls within condition No.6 enumerated by the Apex Court in the case of Bhajan Lal (supra).
Fifthly, the learned counsel has also pleaded that after Manju lodged the FIR in Jaipur, she returned to Spain and lodged a criminal complaint against Anil before the competent court in Spain. In the criminal complaint, she has narrated certain facts with regard to the present petitioner. A translated copy of the complaint has been filed with the present petition. According to the learned counsel, two criminal complaints with regard to the same set of facts cannot be lodged by Manju as the same would be hit by the doctrine of double jeopardy.
Lastly, although Manju claims that she was subjected to cruelty in 1998, but the said offence stands condoned by the fact that she had continued to stay with her husband from 1999 till 2009 in Spain. Therefore, the learned counsel has prayed for quashing of the FIR.
On the other hand, Mr. S.S. Hora, the learned counsel for the complainant-respondent No.2, Manju, has raised the following contentions before this court: firstly, the FIR has been lodged not with a sense of vengeance, but in order to seek justice for all the cruelties which have been heaped upon the complainant by the petitioner, by her husband and by other members of her in-laws' family. According to the learned counsel, the petitioner and his family have been greedy and unreasonable with the complainant. They had entered into the marriage knowing fully well that the complainant was a resident of Spain, that her family had business in Spain. In order to exploit the complainant's parents' business, in order to migrate to Spain, the complainant has been used as a pawn in their strategy to extort money from her family, to establish their own business in Spain, and to buy property in India. Moreover, from the very beginning of the marriage in 1998, she had been deprived of her Stridhan in Jaipur. Even to this day, her jewelry has not been returned by the petitioner. Ever since their migration to Spain, the petitioner and his family members had subjected her to cruelties. They have demanded a large amount of money, Anil had forged the documents, had sold the shops belonging to the complainant and had bought properties in Jaipur from the sale amount. Even when the complainant rushed to Jaipur in August, 2012 and pleaded with the petitioner to save her marriage, the petitioner demanded more money from her and her parents in Jaipur.
Secondly, an offence is said to be committed when all the ingredients of the offence have taken place. However, if any offence has occurred in different parts, then the courts where the offence partly occurred would have the territorial jurisdiction to try the case. Moreover, according to Section 179 Cr.P.C., 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.
Thirdly, the learned counsel has contended that no reliance can be placed on the case of Samarudeen (supra) as in the case of Ajay Aggarwal Vs. Union of India & Ors. [(1993) 3 SCC 609], the Hon'ble Supreme Court has dealt extensively with the proviso to Section 188 Cr.P.C. Therefore, the case of Samarudeen (supra) decided by the Hon'ble Kerala High Court cannot be relied upon in the light of the pronouncement of the Apex Court in the case of Ajay Aggarwal (supra). One of the offences alleged against the present petitioner is of criminal conspiracy under Section 120B IPC. According to the Hon'ble Supreme Court in the case of Ajay Aggarwal (supra), criminal conspiracy is a continuous offence. If part of the conspiracy had taken place outside India, and part of the conspiracy had occurred within India, then proviso to Section 188 Cr.P.C. would not come into force. Since the cruelties against the complainant, since the criminal breach of trust against the complainant were committed in Jaipur and since part of the conspiracy had taken place in Jaipur, therefore, the proviso to Section 188 Cr.P.C. requiring the sanction of the Central Government, ipso facto, is inapplicable to the present case. Hence, the case does not fall within circumstance No.6, mentioned in the case of Bhajan Lal (supra) as there is no legal bar against investigation, or inquiry, or trial in the present case by a court in Jaipur.
Fourthly, the complainant has not made vague allegation against the petitioner and his family members. In fact, she has given exact instances of cruelties inflicted upon her; she has given instances of forgery committed by Anil; she has given details of the properties bought in India from the sale proceeds. Thus, the FIR does not suffer from vagueness.
Fifthly, merely because the complainant does not explain the reason for her coming back to India, it would not vitiate the veracity of her allegations. After all, a FIR is not meant to be encyclopedic in its scope.
Lastly, relying on the case of Satvinder Kaur Vs. State (Government of N.C.T. of Delhi) & Anr. [AIR 1999 SC 3596], the learned counsel has pleaded that the scope of interfering with a FIR is a limited one, in case the allegations are sufficient to show the existence of the ingredients of the offence. While dealing with the FIR, the court is required to take the allegations as uncontroverted facts for the time being. If the allegations reveal the existence of the ingredients of the offence alleged, then this court should not interfere with the investigation. Hence, the learned counsel has contended that this court should not quash the FIR.
Heard the learned counsel for the parties, considered the case laws sited at the Bar, and examined the impugned FIR.
In a series of cases, the Apex Court has held that investigation is the arena of the Police/ investigating agency. Generally, the High Court should not enter into the said arena. The High Court should take the allegations mentioned in the FIR as unrebutted facts. The High Court should see whether the allegations reveal ingredients of the offence, or not. In case they do, then the High Court should not interfere with the FIR. In case it were discovered that the allegations do not reveal the ingredients of an offence, as alleged, then the Court may quash the FIR. In the case of Bhajan Lal (supra), the Hon'ble Supreme Court has summarized the principles dealing with the quashment of FIR/criminal complainant order as under:-
1. 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 entirely do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge.
It is, indeed, a settled principle of criminal jurisprudence that the FIR need not be encyclopedic. The FIR reveals the basic foundation of the prosecution case. The purpose of FIR is merely to set the criminal machinery into motion. Therefore, while interfering with the FIR and with the investigation, the court should also consider the facts discovered by the investigating agency and see if the ingredients of the offence have been revealed or not.
A bare perusal of the FIR clearly reveals that Manju has not only narrated the incidents of cruelties which were inflicted upon her at the beginning of her marriage in 1998 in Jaipur, but has also narrated the cruelties and acts done against her interest in Spain. Her story ends with the dowry demands and cruelties again inflicted by the petitioner in August, 2012 in Jaipur.
Taking her allegations as uncontroverted facts at the moment does reveal the ingredients of Sections 498A and 406 IPC. For, according to her, she was treated with cruelty both mentally and physically at Jaipur in relation to dowry demands, both at the beginning of her marriage and in August, 2012. Thus, part of the offence under Section 498A IPC had taken place in Jaipur.
Moreover, her Stridhan consisting of her jewelry and her clothes were entrusted to the petitioner and his family members at Jaipur. Thus, entrustment and non-return of the property has taken place in Jaipur. Hence, the offence under Section 406 IPC has taken place in Jaipur.
As far as the allegations with regard to offences under Sections 467, 468 and 471 IPC are concerned, according to the complainant, from the sale proceeds certain properties were bought in Jaipur. Thus, the consequence of the sale carried out in Spain took place in Jaipur. Hence, according to Section 179 Cr.P.C., the courts in Jaipur would have the jurisdiction to try the case. Therefore, the contention raised by the learned counsel that the courts in Jaipur do not have the territorial jurisdiction is unacceptable.
Section 188 Cr.P.C. reads as under:-
188. Offence committed outside India.- When an offence is committed outside India-
(a) by a citizen of India, whether on the high seas or elsewhere; or
(b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found:
Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.
In the case of Ajay Aggarwal (supra), the Hon'ble Supreme Court has opined that the word used is offence. The word offence cannot be understood as part of the offence. Therefore, in order to attract the proviso to Section 188 Cr.P.C., all the ingredients of the offence would have to be committed outside India. Moreover, a criminal conspiracy being a continuous offence, if any part of the offence takes place in India, then the requirement of having a sanction from the Central Government does not come into force. Since a part of the offence had occurred in India, Section 188 Cr.P.C. is inapplicable in such a case.
As far as the case of Samarudeen (supra) is concerned, suffice it to say that once there is pronouncement by the Apex Court elaborately deal with Section 188 Cr.P.C. and its proviso, the judgment of a High Court cannot take precedent over the judgment of the Supreme Court. Since the bar contained in Section 188 Cr.P.C. does not cover the present case, obviously, the present case does not fall within the circumstance No.6 enumerated in the base of Bhajanlal (supra). Therefore, the contention raised by the learned counsel for the petitioner that the present FIR is hit by the bar contained in Section 188 Cr.P.C., is unsustainable.
The case of Fatma Bibi Ahmed Patel (supra) is inapplicable to the present case for the following reasons; firstly, in the said case the entire cause of action had arisen at Kuwait. Therefore, no part of the offence had taken place in India. However, in the present case, part of the offence has taken place in Jaipur. Therefore, the present case is distinguishable from the case of Fatma Bibi Ahmed Patel (supra) on factual matrix itself. Secondly, the case of Fatma Bibi Ahmed Patel (supra) dealt with an order of cognizance. But the present case deals with the quashing of a FIR. Hence, the case of Fatma Bibi Ahmed Patel (supra) does not come to the rescue of the petitioner.
It is, indeed, trite to state that a FIR is not meant to be encyclopedic in its scope. Merely because certain facts have not been narrated in the FIR, it would not dilute the veracity of the FIR. There is no reason for the complainant to explain what brought her back to India in the year 2012. Therefore, merely because the said explanation is missing from the FIR, it would not vitiate the FIR.
The contention with regard to the application of double jeopardy is highly misplaced. A bare perusal of the complaint filed by Manju before the competent court in Spain clearly reveals that the complaint was against her husband, Anil, and not against the present petitioner. In fact, in the said complaint, she has described herself as a victim and her husband as an offender. She may have alleged certain acts relating to the petitioner, but such an allegation does not make him an offender. In fact, the entire relief is against her husband. Moreover, it is only in the FIR that she has arrayed the petitioner as an alleged offender and has leveled specific allegations against him. Hence, the contention with regard to the applicability of the doctrine of double jeopardy is without any merit.
It is very easy to allege that the complainant is trying to wreak personal vengeance. But it is difficult to sustain the said allegation. A bare perusal of the facts narrated above clearly reveal that the complainant's marriage has been shaky ever since 2002; she had challenged the action of her husband by filing a habeas corpus petition when her husband had suddenly brought the child to India; she has been trying to save her marriage by entering into a settlement by her husband, but to no great effect; she has been running from pillar to post, from Spain to India, and back from India to Spain, trying to seek justice for her cause. Merely because she has been trying to seek justice, it cannot be dubbed as trying to wreck personal vengeance. In an era of gender justice, if a woman is deprived of her rights under the law, she has every reason to raise her voice and to plead for justice. Merely because a woman pleads for justice, it cannot be held that she is trying to wreck personal vengeance. Such an argument smacks of a patriarchal view that a woman is meant to be seen, but to be silent, and she should continue to suffer the cruelties which may be unleashed upon her by her husband and his family members. To say the least, such a thinking is antiquated in today's age. Therefore, such an argument only needs to be uttered to be dismissed by a court of law.
For the reasons stated above, this court does not find any merit in the present petition. It is, hereby, dismissed. The stay application is also dismissed.
(R.S.CHAUHAN), J.
GS All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Govind Sharma, PA