Prabhat Chaturvedi vs State Of U.P. on 29 August, 2013

[Cites 26, Cited by 2]

Allahabad High Court

Prabhat Chaturvedi vs State Of U.P. on 29 August, 2013

1.By means of this petition under Section 482 of Criminal Procedure Code (for short 'Cr.P.C.') the order dated 30.07.2009 passed by C.J.M, Lucknow in Case No. 4311 of 2009 taking cognizance against the petitioner for trial under Section 498A, 323, 504, 506, 326 IPC and Section ¾ D.P. Act on the basis of charge sheet No. 28 of 2009 dated 26.05.2009 in Case Crime No. 69 of 2008, P.S. Hazratganj Mahila Thana, district Lucknow sought to be quashed.

2.The brief facts to decide this petition are as under.

3. That opposite part No.2 Smt. Archana Chaturvedi gave a written report against the petitioner and his family on 10.11.2008 to Police Station Aliganj, District Lucknow. On the basis of which FIR has been lodged on the same day under Sections 498A, 323, 504, 506 IPC and Section ¾ D.P. Act in Case Crime No.69 of 2008. The case was sent to Mahila Thana, District Lucknow. The matter was investigated and thereafter on 26.05.2008 Charge sheet has been filed against the petitioner Prabhat Chaturvedi ,the husband of opposite party No.2.. After investigation family members of the petitioner namely Dinesh Chaturvedi, Ramesh Chaturvedi, Smt. Savitri Chaturvedi, Smt. Sudha Chaturvedi, Smt. Rakhi Chaturvedh and Shiv Kumar Chaturvedi were exonerated. The charge sheet was filed under Sections 323, 326,506, 406,498A IPC and Section ¾ Dowry Prohibition Act. The court took cognizance and summon the petitioner vide order dated 23.07.2009.

4.The allegation levelled in the first information report in short are that opposite party No.2 married with Prabhat Chaturvedi the petitioner on 3rd February, 2005 at Lucknow. Sufficient dowry was given at the time of marriage which includes Rs. 51,000/- at the time of 'Bariksha' Rs. 51,000/- were given to mother-in-law Smt. Savitri Chaturvedi and father-in-law Shiv Kumar Chaturvedi as demanded by them. The mother of opposite party No.2 borne entire expenditure of the Barat and staying of the same. Apart from it, other movable item T.V., Music system, Almira, Double bed, utensil, and other domestic use items were given. The ornaments including neckless, three chain, tops, ring total measuring 16 tola and silver item about 500 gm apart from cloths and sarees amounting to Rs.40,000/- given to the family members of petitioner No.1. In Kaleva two gold rings having weight 20gms and clothing of Rs. 55,000/- were given. After marriage she reached Sasural on 4th February, 2005. On 5th February, 2005 she was harassed and taunted on account of bringing less dowry by the family members and the demand of Rs. 10,00,000/- and a flat was raised by the in-laws. She came back to parental house. Her mother managed to Rs.1,00,000/- and given to in-laws on 7th March, 2005. The petitioner went to Saudi Arab along with his Bhabhi. His elder brother Dinesh was already went to Saudi Arab on 07.03.2006 she was called to Riyad in Saudi Arab by the petitioner but in Riyad she was subjected to cruelty on account of non-fulfilment of dowry. On 20th December, 2007 in Riyad her husband Prabhat Chaturvedi and his brother Dinesh badly beaten her. Her husband Prabhat Chaturvedi pored some black matrial upon her and Dinesh with match stick ablazed her. She was badly burnt in this incident. She raised alarm and thereafter neighbour assembled there. On their persuasion she was admitted in hospital at Riyad. She was threatened that if she will take any action in the matter she will be killed. After discharge from the hospital she came back to Delhi along with petitioner. From Delhi she was came by Shatabdi Train on 27th March, 2008 in bearing cloth alone to Lucknow. The in-laws kept all the belongings and ornaments with them. The petitioner and his brother Dinesh and Smt. Savitri Chaturvedi continuously extended threat to her on phone.

5.On 5th September, 2008 the husband of petitioner Prabhat Chaturvedi, mother-in-law Savitri Chaturvedi, father-in-law Shiv Kumar Chaturvedi came alongwith husband of petitioner at Triveni Nagar, Lucknow and demanded Rs. 10,00,000/- and a flat from her and her mother. When they expressed inability to fulfil the demand she and her mother was badly beaten by them and again demand Rs. 10,00,000/- and a flat and also extended threat that in case any action is taken they will be killed. She treated in Appolo Hospital, New Delhi in which a sum of Rs.2,00,000/- incurred in medical treatment. These expenses were borne by her mother

6.During the course of investigation neither the petitioner nor other witnesses mentioned about incident of 05.09.2008 which said to have been occurred in Triveni Nagar, Lucknow.

7.Aggrieved by the order of summoning and the consequential proceeding initiated by the Chief Judicial Magistrate in pursuance of the charge sheet and summoning order this petition has been filed by the petitioner. From the perusal of the pleadings of the parties the only challenge made in the petition is regarding lack of jurisdiction of the trial court to proceed in the matter. Counter affidavit has been filed wherein it has been mentioned by the opposite Party No.2 that investigation has not been properly conducted so he filed protest against dropping of the name of the other family members in the investigation and also filed an application before the court for further investigation under Section 173 (8) Cr.P.C. She reiterated the allegation made in the FIR. It was alleged that the offence committed is continuing offence and cause of action started from 20.12.2007 to 05.09.2008. In view of sections 177, 178 of 209 Cr.P.C. Section 3(r) of General Clause Act the court has jurisdiction to try the case.

8.In rejoinder affidavit the allegation of the counter affidavit has been refuted and stated that the petitioner purchased the land in district Lakhimpur Kheri in the name of opposite party No.2 having cost of Rs. 5,00,000, so ,alleged story of demand and harassment and cruelty is not correct. It was further submitted that nothing was happened as stated by the petitioner regarding the incident of burn in Riyad but it was actually a case of accidental burn.

9.This court for the first time vide its order dated 19.08.2011 found that no permission under Section 188 Cr.P.C. was granted by Central Government, hence the Central Government was asked to grant of permission.

10.Initially when petition was filed this court passed an interim order dated 03.09.2009 stating that the prosecution of the petitioner under Section 326 IPC shall remain stayed and permitted the trial court to proceed for the other section. However, on 22.09.2011 the entire proceedings pending before the trial court were stayed on the request of the complainant on the ground that learned counsel for the Union of India informed that State Government is not moved for grant of permission under Section 188 Cr.P.C. so, no permission has been accorded by the Central Government.

11.This Court thereafter proceeded with this case and heard the parties at length.

12.Learned counsel appearing on behalf of the petitioner, Sri. B.M. Sahai argued that the Apex Court in recent judgement in Thota Venkateswarlu Vs. State of A.P. [(2011) 9 SCC 527] posed a question in para 12 to be considered in this case; Whether in respect of series of offence arising out of the same transaction, some of which were committed within the India and some out side India, such offences could be tried together, without the previous sanction of the Central Government, as envisaged in the proviso to Section 188 Cr.P.C.?

13.In the case of Thota Venkateswarlu's case (supra) the Apex Court in para 12, 13, 14, 15, 16, 17 explained the legal aspect of Section 188 Cr.P.C., is reproduce herein below;

"12.The question which we have been called upon to consider in this case is whether in respect of a series of offences arising out of the same transaction, some of which were committed within India and some outside India, such offences could be tried together, without the previous sanction of the Central Government, as envisaged in the proviso to Section 188 Cr.P.C.

13. From the complaint made by the Respondent No.2 in the present case, it is clear that the cases relating to alleged offences under Section 498-A and 506 I.P.C. had been committed outside India in Botswana, where the Petitioner and the Respondent No.2 were residing. At best it may be said that the alleged offences under Sections 3 and 4 of the 10 Dowry Prohibition Act occurred within the territorial jurisdiction of the Criminal Courts in India and could, therefore, be tried by the Courts in India without having to obtain the previous sanction of the Central Government. However, we are still left with the question as to whether in cases where the offences are alleged to have been committed outside India, any previous sanction is required to be taken by the prosecuting agency, before the trial can commence.

14.The language of Section 188 Cr.P.C. is quite clear that when an offence is committed outside India by a citizen of India, he may be dealt with in respect of such offences as if they had been committed in India. The proviso, however, indicates that such offences could be inquired into or tried only after having obtained the previous sanction of the Central Government. As mentioned hereinbefore, in Ajay Aggarwal's case (supra), it was held that sanction under Section 188 Cr.P.C. is not a condition precedent for taking cognizance of an offence and, if need be, it could be obtained before the trial begins. Even in his concurring judgment, R.M. Sahai, J., observed as follows :- (SCC p. 628, para 29) "29 Language of the section is plain and simple. It operates where an offence is committed by a citizen of India outside the country. Requirements are, therefore, one -- commission of an offence; second -- by an Indian citizen; and third -- that it should have been committed outside the country.;"

15 Although the decision in Ajay Aggarwal's case (supra) was rendered in the background of a conspiracy alleged to have been hatched by the accused, the ratio of the decision is confined to what has been observed hereinabove in the interpretation of Section 188 Cr.P.C. The proviso to Section 188, which has been extracted hereinbefore, is a fetter on the powers of the investigating authority to inquire into or try any offence mentioned in the earlier part of the Section, except with the previous sanction of the Central Government. The fetters, however, are imposed only when the stage of trial is reached, which clearly indicates that no sanction in terms of Section 188 is required till commencement of the trial. It is only after the decision to try the offender in India was felt necessary that the previous sanction of the Central Government would be required before the trial could commence.

16. Accordingly, upto the stage of taking cognizance, no previous sanction would be required from the Central Government in terms of the proviso to Section 188 Cr.P.C. However, the trial cannot proceed beyond the cognizance stage without the previous sanction of the Central Government. The Magistrate is, therefore, free to proceed against the accused in respect of offences having been committed in India and to complete the trial and pass judgment therein, without being inhibited by the other alleged offences for which sanction would be required.

17.It may also be indicated that the provisions of the Indian Penal Code have been extended to offences committed by any citizen of India in any place within and beyond India by virtue of Section 4 thereof. Accordingly, offences committed in Botswana by an Indian citizen would also be amenable to the provisions of the Indian Penal Code, subject to the limitation imposed under the proviso to Section 188 Cr.P.C."

14.On the strength of this authority it has been submitted that incident which alleged to have been occurred in Riyad is an independent offence and a completed one. It is not continuing offence of the earlier one alleged to have been occurred in Inida. Hence permission of Central Government is required to prosecute the petitioner for the alleged offence committed by the petitioner at Riyad in Saudi Arab in view of proviso of Section 188 Cr.P.C. However for other offence the trial may go on.

15.The learned counsel for the opposite party No.2 Sri Manoj Kumar Mishra submitted that the offence alleged in the first information report are continuing offence and in case of continuing offence, part of cause of action which has been taken place outside India will not be covered by section 188(1) Cr.P.C. In this regard reliance has been placed upon the judgements

(i) Ajay Aggrawal Vs. State of Union of India [ (1993) 3 SCC (Crl.) 609],

(ii) Y. Abraham Ajith & Ors Vs. Inspector of Police, Chennai & Ors. [(2004)2 JIC 666 SC],

(iii) Smt. Sujata Mukherji vs. Prashant Kumar Mukherji [1997 (JIC) 827 SC],

(iv) Mohan Baitha Vs. State of Bihar & Ors. [2001 (2) JIC 166 SC],

(v) State of Bihar Vs. Dev Karan Nenshi [1972 (2) SCC 890]

(vi) Gokak Patel Volkart Ltd. Vs. Dandayya Guru Shiddiah Hiramath [1991(2) SCC 141]

(vii) Bhagirath Kanoria Vs. State of M.P. [1984(4) SCC 222]

16.On the basis of submission made by the counsel for the parties the sole question for consideration before this court is;

(i) whether proviso of Section 188 Cr.P.C would be applicable in this case and without permission of the Central Government the case may proceed for the trial of the petitioner for those offence ,said to have been committed in India?.

(ii) Whether the proceedings pending before Lucknow court are without jurisdiction?

17. So far as question of Section 188 Cr.P.C. is concerned in Thota Venkateswarlu's case (supra) the Apex Court after considering the judgement rendered by Supreme Court in Ajay Aggarwal's case (Supra) ruled that offence which are completed in itself and committed outside India the permission under proviso of Section 188 Cr.P.C. of Central Government would be required, but for the offence which are committed within India there would be no impediment in taking the cognizance and the accused persons without previous permission under proviso 2 of Section 188 Cr.P.C. can be prosecuted and court would be competent to proceed with the case and to decide the same.

18. Ajay Aggarwal's case (supra) was a case of criminal conspiracy and the Apex Court held that the criminal conspiracy was hatched in India. If some of the part of offence has taken place in pursuance of that conspiracy to achieve objective of the criminal conspiracy outside India no permission of Central Government would be required of proviso to Section 188 Cr.P.C. In Ajay Aggarwal's case (supra) the Apex Court held that criminal conspiracy itself a substantive offence and is continuing one unless object of criminal conspiracy is achieved. This case was considered by the Apex Court in Thota Venkateswarlu's case (supra) and has been distinguished. on fact. In Thota Venkateswarlu's case (supra) the petitioner left India for Botswana in January 2006 alone. Respondent No.2, the wife went to Botswana to join the petitioner. While she was in Botswana the respondent No.2 alleged to have been severely ill treated by the petitioner. Apart from the above, various demands were also made including demand for additional dowry of Rs. 5,00,000/-. The court while deciding this matter came to the conclusion that offence pertaining to Botswana are in itself completed offence. These are not continuing hence permission of Central Government would be required under the proviso of section 188 Cr.P.C.. However, the offence under Section ¾ D.P. Act was committed in India. Hence the same shall be tried in India.

19. In recent judgement of the Apex Court in Udai Shankar Awasthi Vs. State of Uttar Pradesh and Another [(2013) 2 Supreme Court Cases 435] their Lordships held in para 29 is as follows;

"29 Thus, in view of the above, the law on the issue can be summarised to the effect that, in the case of a continuing offence, the ingredients of the offence continue, i.e., endure even after the period of consummation, whereas in an instantaneous offence, the offence takes place once and for all i.e. when the same actually takes place. In such cases, there is no continuing offence, even though the damage resulting from the injury may itself continue."

20. The above judgement in Udai Shankar Awasthi has been rendered by the Apex Court after considering the several judgements of the Apex Court including the following judgements;

(i) Balakrishna Savalram Pujari Waghmare Vs. Shree Dhyaneshwar Maharaj Santhan [AIR 1959 (SC) 798]

(ii) Gokak Patel Volkart Ltd. Vs. Dandayya Guru Shiddiah Hiramath [1991(2) SCC 141]

(iii) State of Bihar Vs. Dev Karan Nenshi [1972 (2) SCC 890]

(iv) Bhagirath Kanoria Vs. State of M.P. [1984(4) SCC 222]

(v) Amrit Lal Chum Vs. Devoprasad Dutta Roy [(1988) 2 SCC 269]

(vi) Raymond Ltd. Vs. M.P. Electricity Board [2001 (1) SCC 534]

(vii) Sankar Dastidar Vs. Banjula Dastidar [(2006) 13 SCC 470]

21. The Supreme Court in Uday Shankar Awasthi's case (supra) explain which offences are continuing offence and which are not.

22. In view of factual matrix in case in hand the offence committed at Riyad is complete offence and has no nexus with other offence alleged to have been committed in India. This offence under Section 326 IPC would not be triable without permission granted by the Central Government in view of proviso of Section 188 Cr.P.C. However the other offence which has been committed in India as alleged in the FIR and found to be committed in India during investigation would be tried and decided by the Magistrate. Hence proceeding in respect thereof may continue irrespective of the fact that no permission of the Central Government has been given in this case to prosecute the petitioner for the offence alleged to have been committed at Riyad in Saudi Arab.

23. Now question comes that on the basis of other offence said to have been committed in India whether the court at Lucknow has jurisdiction to try and decide the same. From the perusal of the allegation made in the first information report the dowry was given in Lucknow according to the prosecution version in the FIR. The opposite party No.2 and her mother was ill treated in Lucknow. Hence, it cannot be said that this court at Lucknow has no jurisdiction to try and decide the case.

24. Hence this petition is liable to be partly allowed.

25. The impugned order taking cognizance for the alleged offence committed in Riyad, Saudi Arab is set aside, but it will remain operative in respect of offences which were committed in India. Learned Magistrate will proceed with the trial in respect of those offence expeditiously in accordance with law keeping in view the provision contained in Section 309 Cr.P.C.

Dated: 29th Aug, 2013 Ajay

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