Delhi District Court
Manish Agnihotri vs State on 18 December, 2023
THE COURT OF MS. NEHA PALIWAL SHARMA,
ADDITIONAL DISTRICT JUDGE-03
CENTRAL DISTRICT : TIS HAZARI COURTS: DELHI
(EARLIER POSTED AS ADDITIONAL SESSIONS JUDGE-05,
WEST DISTRICT: TIS HAZARI COURTS: DELHI)
CNR NO.: DLWT01- 011511-2022
Criminal Revision No. 445/2022
Mr. Manish Agnihotri
S/o late Mr. Sushil Kumar Agnihotri
R/o 606, Mahagun Maestro,
Plot No. F-21A, Sector-50,
Noida- 201301, U.P.
.... Revisionist/Petitioner
v.
1. State
Through SHO, PS Rajouri Garden,
New Delhi.
2. Ms. 'P'
(identity withheld)
..... Respondents
Date of Institution : 01.12.2022
Date of reserving order : 04.11.2023
Date of pronouncement : 18.12.2023
ORDER :
1. The present revision petition has been preferred under section 397 Cr.P.C by the revisionist against order dated 25.11.2022 (hereinafter referred to as the impugned order) passed by Ld. MM-02, West District, THC, Delhi (hereinafter referred to as Ld. Trial Court) in CC No. 1268/22, titled as 'P' v. State, whereby the Ld. Trial Court had directed the State to register FIR against the revisionist/petitioner.
Criminal Revision No.445/2022 Manish Agnihotri v. State & Anr Page 1/9
2. It is the case of the revisionist/petitioner that he and 'P' got married on 05.09.1998. Around November-December 2013, he came across a second marriage anniversary greeting card addressed to 'P' by one Mr. Lufti Abdul Latif Ghansar dated 04.08.1996 describing himself as husband of 'P' and therefore he stopped having any sexual relation with 'P', however no proceeding for divorce or separation was filed by either of the party. They continued their relations as husband and wife without having any sexual relations with each other. There are numerous e-mails between them indicating and establishing that there was no separation. In October 2022 revisionist came across one Islamic certificate dated 04.08.1994 issued by one Qazi Fareed Ahmed Khan wherein it was certified that 'P' had converted to Islam and one marriage certificate dated 04.08.1994 certifying marriage of Lufti Abdul Latif Ghansar with 'P'. Only in order to extort money from him 'P' had served legal notice dated 31.05.2022 to him demanding Rs. 1.25 Lac per month and a lump sum amount of Rs. 20 Lakhs. Reply to the same was given by the revisionist on 02.07.2022. Thereafter, criminal complaint for registration of FIR under section 376 B followed by another complaint with CAW cell was filed by 'P' against the revisionist.
3. It is the case of the revisionist that Ld. Trial Court had failed to consider that as per section 198 B Cr.P.C no Court shall take cognizance of an offence punishable under section 376 B IPC where the persons are in marital relationship except upon prima facie satisfaction of the facts which constitute the offence. Hon'ble Supreme Court of India in the case of Lalita Kumari v. Government of UP & ors (2014) 2 SCC 1 had held that preliminary inquiry is to be conducted in Criminal Revision No.445/2022 Manish Agnihotri v. State & Anr Page 2/9 matrimonial disputes/family disputes and cases where there is abnormal delay/latches in initiating criminal prosecution, for example, over three months delay in reporting the matter without satisfactorily explaining the reasons for delay. Thus, inquiry needs to be carried out when the offences alleged relate to matrimonial disputes and when there is abnormal delay in initiating criminal prosecution. In the present case, allegations against the petitioner are from the year 2013 to 2018 and the complaint is filed in the year 2022. The State as per mandate of law has verified the facts and has concluded that there is no separation between the parties. Thus, it is prayed that TCR be called and the impugned order dated 25.11.2022 be set aside.
4. Notice of the present revision petition was issued to both the respondents, that is, respondent no. 1/ State and respondent no. 2 / 'P' .
5. In between the dates of hearing, an application under section 340 Cr.P.C alongwith documents was filed on behalf of respondent no. 2. Reply was filed to the said application by the revisionist/petitioner. An application under section 340 Cr.P.C was also moved on behalf of revisionist/petitioner against respondent no. 2.
6. Reply was also filed to the present revision petition by respondent no. 2. It was stated in the reply that respondent no. 2 had preferred complaint dated 30.08.2022 disclosing commission of offences under sections 376B/354 B/354/354A/509/323 IPC, however due to inaction on the part of police officials, application under section 156(3) Cr.P.C was filed before the Court of Ld. MM. The impugned order is in accordance with law. She had even given legal notice under section 140 DP Act dated 27.09.2022 to the police. The action taken report filed by the police showed that the inquiry officer believed the Criminal Revision No.445/2022 Manish Agnihotri v. State & Anr Page 3/9 version of the revisionist and investigated the matter without registering the FIR, overlooking the mandate of the Hon'ble Supreme Court in the case of Lalita Kumari (supra).
7. She in her reply has further relied upon the judgment of Sanjay Singh Ramrao Chavan v. Dattatray Gulabrao Phalake & ors (2015) 3 SCC 123 wherein it was held that unless the order passed by the Magistrate is perverse or the view taken by the Court is wholly unreasonable or there is non consideration of any relevant material or there is palpable misreading of records, the revisional Court is not justified in setting aside the order merely because another view is possible.
8. Respondent no. 2 further specifically denied each and every allegation of petitioner and denied the alleged conversion certificate/marriage certificate/greeting card. It is further averred that scope of preliminary inquiry is only to ascertain whether cognizable offence is disclosed and the same has been followed in the present matter. The Ld. Trial Court had rightly relied upon the judgment of XYZ v. State of Madhya Pradesh (2022) SCC online 1002. The revisionist had deserted respondent no. 2 on 26.06.2014 and thereafter had on multiple occasions committed forcible sexual intercourse with her without her consent and will. Thus, it is prayed that the revision petition be dismissed with costs and the stay granted vide order dated 01.12.2022 be vacated.
9. Trial Court record (TCR) was summoned.
10. I have heard the arguments as advanced by Ld. counsel for the revisionist, ld. Addl. P.P. for the State/respondent no.1 and ld.Counsel Criminal Revision No.445/2022 Manish Agnihotri v. State & Anr Page 4/9 for respondent no.2. I have also perused the impugned order, the TCR and the entire material available on record.
11. Section 397 (1) Cr.P.C. states that any Sessions Judge may call for and examine the record of any proceeding before any inferior criminal Court situated within his local jurisdiction for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court.
12. Vide the impugned order, the ld. Trial Court while relying upon the judgments of the Hon'ble Supreme Court of India in the cases titled as XYZ v. State of Madhya Pradesh and others and Lalita Kumari v. State of Uttar Pradesh & others, had directed the SHO of the concerned PS to register FIR under appropriate sections.
13. Action taken report was filed by the State before the ld. Trial Court wherein it was admitted that complaint was filed by Ms. 'P' on 30.08.2022 before the SHO PS Rajouri Garden and DD no. 104A was registered. The reasons for not registering FIR were given that the parties were not under judicial separation nor any petition for divorce or judicial separation was filed or pending between the parties. The incidents alleged took place between 2014-2018. There are trails of emails, whatsapp chats and bank account transactions between the parties showing that parties were in regular contact with each other, indicating that there was no separation.
14. Section 376B IPC deals with sexual intercourse by husband upon his wife during separation. It states that whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished. Thus, Criminal Revision No.445/2022 Manish Agnihotri v. State & Anr Page 5/9 this section makes punishable sexual intercourse by a husband with his wife if the wife is living separately, whether under a decree of separation or otherwise, without her consent.
15. Thus, in order to attract the said provision, the wife should be living separately under a decree of separation or otherwise. Admittedly, there is no decree of separation in the present matter. However, the words 'or otherwise' indicate that separation which is not judicial is also incorporated within the purview of this section by the legislature.
16. It is the case of the revisionist that post discovery of alleged marriage anniversary card addressed to 'P' by one Mr. Lufti Abdul Latif Ghansar, in November-December, 2013, there were no sexual relations established by him with 'P'. Thus, as per the own version / stand of the revisionist, the conjugal relations of husband and wife were severed by him with 'P' since November-December, 2013. He renouncing the world and the company of 'P', left the house on 26.06.2014. He maintained contact only with his mother and sister. The parties were residing separately without there being conjugal relations between them. Therefore, prima facie there was separation between the parties coming under the category of 'or otherwise' as contemplated under Section 376B IPC.
17. Section 198B Cr.P.C. states that no Court shall take cognizance of an offence punishable under Section 376B of the Indian Penal Code where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitutes the offence upon a complaint having been filed or made by the wife against the husband. However, Section 198 B applies at the stage of cognizance. The bar as contemplated under this section does not come at the stage of Criminal Revision No.445/2022 Manish Agnihotri v. State & Anr Page 6/9 investigation. Section 156 (3) Cr.P.C. is the stage of investigation wherein directions for investigation are given in cognizable offences. The stage of cognizance comes at the stage of final report or complaint or otherwise under section 190 Cr.P.C. Thus, prima facie satisfaction of facts by the Court has to be considered at the stage of cognizance and not at the stage of investigation.
18. Respondent no.2 in her complaint u/s 156(3) Cr.P.C. had alleged that after revisionist left the matrimonial home on 26.06.2014, claiming that he had renounced the world, he in August, 2014, on 03.11.2015, on 31.12.2016 and on 02.11.2018 forcibly established sexual relations with her against her consent and will. Thus, there are allegations qua commission of cognizable offences in the complaint of respondent no.2 Ms. 'P'.
19. It was held in the case of Lalita Kumari (supra) by the Hon'ble Supreme Court of India that preliminary inquiry may be conducted in matrimonial disputes/family disputes, cases where there is abnormal delay/latches in initiating criminal prosecution etc., however, the scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. Thus, the scope of preliminary inquiry in the present matter also would only be to the extent to verify whether the information reveals any cognizable offence. There are allegations qua commission of cognizable offence in terms of section 376B IPC, as reflected in the complaint of respondent no.2.
20. Thus, in the considered opinion of this Court, there is no illegality, infirmity or impropriety in the impugned order dated 25.11.2022 of the Ld. Trial Court whereby the Ld. Trial Court had Criminal Revision No.445/2022 Manish Agnihotri v. State & Anr Page 7/9 directed the SHO concerned to register FIR under appropriate sections and investigate the matter. The impugned order is proper, correct and in accordance with law.
21. Accordingly, the revision petition is hereby dismissed as being devoid of merits.
22. In the present matter, applications u/s 340 Cr.P.C. have been moved by both revisionist and respondent no.2 alleging that false and fabricated documents have been relied upon by the other party/ false affidavits have been filed in Court. The genuineness or the veracity of documents relied upon by the parties is the matter of investigation. As the revision petition has been dismissed and the State has to conduct investigation in the present matter after registering FIR, at this stage, there is no ground for initiating any proceeding under section 340 Cr.P.C. qua any party. Accordingly, both the applications are hereby disposed of.
23. The TCR be sent back along with the copy of this order to the Ld. Trial Court.
24. The file of this revision case be consigned to record room after due compliance.
Pronounced in the open Court on 18.12.2023 (Neha Paliwal Sharma) Additional District Judge-03 (Central) Tis Hazari Courts Delhi (Earlier posted as Additional Sessions Judge -05 (West) Tis Hazari Courts Delhi Criminal Revision No.445/2022 Manish Agnihotri v. State & Anr Page 8/9 It is certified that this order contains 09 pages and each page bears my signatures.
(Neha Paliwal Sharma) Additional District Judge-03 (Central) Tis Hazari Courts Delhi (Earlier posted as Additional Sessions Judge -05 (West) Tis Hazari Courts Delhi Criminal Revision No.445/2022 Manish Agnihotri v. State & Anr Page 9/9