Jammu & Kashmir High Court
Narinder Jain And Anr. vs Shruti Jain on 26 October, 2018
Equivalent citations: AIRONLINE 2018 J AND K 267
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No.709/2017& IA No. 01/2017
Date of order:26.10.2018
Narinder Jain and anr. Vs Shruti Jain
Coram:
Hon‟ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. Sachin Gupta, Advocate
For respondent (s) : Mr. RajneshOswal, Advocate
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C), petitioners seek quashing of the criminal complaint titled "Shruti Jain Vs Narinder Jain, bearing complaint no.nil/complaint date of institution 23.09.2017 pending before learned Sub Judge Jammu, under section 498-A /405/406 RPC read with 109 of Ranbir PenalCode.
2. The brief facts of the case are that one of the common relative of petitioners and respondent mediated the marriage between the son of the petitioners and respondent. The marriage between the two was solemnized on 04.02.2013. It is stated that the respondent never wanted to marry with the son of the petitioners and it was under the pressure and coercion of her parents that she married the son of the petitioners, which was solemnized without any dowry. It is stated that son of the petitioners is working in a company in United States of America and soon after the marriage he left to USA to resume his services on 18.02.2013. On 14.03.2013, respondent-Shruti also left India for USA. The son of the CRMC No.709/2017 Page 1 of 11 petitioners reported to them that the respondent is not comfortable in staying with him and always looking for a reason to fight with him. It is stated that respondent could not adjust with the son of the petitioners and she ultimately left USA on 29.04.2013 and since 29.04.2013 the petitioners as well as their son have not met respondent or her family members and there is an unequivocal breakdown of the marriage between the son of the petitioners and the respondent.
3. Learned counsel for the petitioner‟s states that the respondent has filed a false and frivolous criminal complaint against the petitioners under section 498A/405/406/409 RPC read with Section 109 of Ranbir Panel Code. The respondent presented the complaint before learned Chief Judicial Magistrate Jammu, which was subsequently transferred to the court of learned Sub Judge Jammu for disposal under law. It is stated that the learned Sub Judge while entertaining the complaint recorded the statement of respondent and took the cognizance of the offence and issued process against the petitioners. It is further stated that the said criminal proceedings against the petitioners is sheer abuse of process of law.
4. The petitioners being aggrieved of the aforesaid complaint have challenged the same on the following grounds:
That bare reading of the complaint as a whole and allegation made in the complaint, even if, taken at their face value and accepted in their entirety no prudent person can lead to the conclusion thatthe present complaint is maintainable in the present form; that the allegations made in complaint are so absurd and inherentlyimprobable on the basis of whichno prudent person can lead tothe conclusion that there are sufficient grounds to proceed with the present complaint; that the impugned orders and the CRMC No.709/2017 Page 2 of 11 proceeding pending before the Court of learned Judicial Magistrate 1st Class(Sub Judge) Jammu are sheerabuseof the process of law, inasmuch as, thecourt below has failed to meet with the basic requirement of the Sections 498-A /405/406 RPC read with 109 of RPC; that the impugned orders and the proceeding pending are against the mandate of law; that the court below failed to appreciate thattoestablishanoffenceof Criminal Breach of Trust in Section 405 of RPC, theingredients are entrusting any person with the property or withany dominion over the property; that the present criminal proceeding against petitioner is attended with mala fide and are maliciously instituted with an ulterior motive for wreck vengeances on petitioners with a view to spite them with the personal and private grudge. That court below lacks territorial jurisdiction in entertaining the complaint, as alleged entrustment of dowry items has taken place at Panchkula; the parties stayed at USA or Panchkula after marriage and nothing has happened within the jurisdiction of this court.
5. I have heard counsel for parties. Counsel for petitioner has reiterated all grounds taken in petition, where as counsel for respondent has supported the impugned order.
6. In support of his contention, learned counsel for the petitioners has relied upon the judgments of this Court reported in 2005 Crl.L.J 3903, Satinder Kour vs. S. D. Singh; and 2017 Cri.L.J (NOC 220) 67, Akshay Kachroo and anr. vs. Dr. Ishita Ganjoo. Whereas counsel for respondent has relied upon latest judgment of Apex Court in case titled Social Action Forum for Manav Adhikar v. Union of India (WRIT PETITION No. 73/2015 decided on 14.9.2018.
7. I have given my thoughtful consideration to whole aspects of the matter.
CRMC No.709/2017 Page 3 of 118. From the perusal of documents on record, it reveals that respondent has filed a complaint before Court below against her husband and petitioners parents-in-law; the court below after recording the statements of complainant and witness took cognizance on 23.9.2017 u/s 498- A/405/406/109 /RPC. The relevant paras of the complaint reads as under:-
1. That the marriage of the complainant with accused No. 3 was solemnized according to Jain rituals at Jammu on 0.02.2013 and after the marriage, complainant went to her matrimonial home along with accused persons.
2. That in the marriage the parents of the complainant gifted jewelry items comprising of Five Gold Sets, One pair of gold ear rings, Two gold pounds, three gold diamond ring was given to accused no:1. The accused no. 3 snatched all the Jewelry of the complainant and handed over to accused no2.
5. That on 9.2-2013 complainant and accused no 3 left for Gurgoan and have to leave for Rajasthan for their Honeymoon on 15.12.2013, but one day to that accused no 3 told the complainant that she was not the lady of his choice and instead of going on honeymoon on next day he along with complainant came back to Panchkula.
6. That on 17-02-2013 when complainant inquired from accused no. 3 that when she would be taken to United States by the accused no.3. The accused no.3 used abusive language and also physically assaulted the complainant in presence of accused no. 1 and 2.
7. That accused no. 3 left for U.S.A on 18-2-2013 and complainant remained in the company of the accused no. 1 and 2 till 14.03.2013 and during that period the accused no.1 and 2 continuously taunted the complainant and even asked the complainant to work as maid in U.S.A and not to place unnecessary burden on accused No. 3.
8. That complainant went to U.S.A on 14-03-2013 and even in U.S.A assaulted the complainant on number of occasions and even made the complainant to consume contraceptive pills to that complainant could not conceive pregnancy. Not only this, the accused no. 3 forced the complainant t eat egg and meat despite the fact that its consumption is strictly barred in Jainism.
9. That on 28-04-2013 accused no. 3 assaulted the complainant which compelled the complainant to lodgereport with the Houston County Police, as a result of which restraint order was passed against accused no. 3 by the Houston Police and complainant was sent to India on 30-04-2013 Houston Police.
11. That it is worthwhile to mention here that on 17.09.2017, accused No. 1 and 2 came to Jammu to settle the dispute at the behest of the accused no. 3 and at that time too accused no. 1 & 2 demanded that accused persons were ready to take complainant back provided she transfers whole due of earning from her job to the account of accused no. 2 and when complainant refused to CRMC No.709/2017 Page 4 of 11 accede the illegal and unjustified demand made by the accused no. 1 & 2 , they used abusive language against the complainant and her parents. The complainant also requested the accused no:1 and 2 that if they do want to settle the dispute amicably, then they at least should handover the stridhan i.e. Jewelry of the complainant, but the accused no; 1 and 2 straightway refused to return the same. It is mentionable here that the accused no:3 despite being aware about the pendency of the case has chosen not to appear before Addl.
District Judge (Matrimonial Cases) Jammu as a result of which ex-parte proceedings have been initiated against the accused no:3.
9. The law with regard to quashing of FIR/complaint /challan is now well settled. These can only be quashed in order to prevent abuse of process of law or to otherwise secure the ends of justice. The expression ends of justice and to prevent abuse of process of any court are intended to work out either when an innocent person is unjustifiable subjected to an undeserving prosecution or if an exfacie all merited prosecution is throttled at the threshold without allowing the material in support of it.
10. In present case, from perusal of complaint it would reveal that allegations with regard to cruelty and dowry demand have taken place outside State at Panchkula or USA; similarly as per complaint, complainant was residing at Panchkula and USA after marriage, so entrustment of dowry items, if any, have taken place at Panchkula and USA. Only in para 11 of complaint, it would reveal that some allegations have been leveled against the petitioners with regard to transfer of whole earning from her job in the account of her husband; it has also been mentioned in this para of the complaint that complainant requested the petitioners herein to handover Stridhan, which they refused. From bare perusal of this para, it is evident, that it has been cleverly drafted in order to create illusion of cause of criminal action within territorial jurisdiction of trial court. No detail of dowry items has been mentioned, which were entrusted upon petitioners.
11. Sections 177 to 188 of CHAPTER-XV of code deal with place of inquiry or trial. These sections read as under;-
CRMC No.709/2017 Page 5 of 11"177. Ordinary place of inquiry and trial.- Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed."
This section deals with general rule for trial and inquiry; it says that offence is to be inquired or tried by court within whose territorial jurisdiction it has taken place. The word ordinarily suggests that its provisions are not peremptory, and the place of trial is not limited to the one mentioned in the section. The word „ordinarily‟ indicates that S. 177 is a general section, and must be read subject to the special provisions of sections. There are certain exceptions to this provision which are embodied in following sections.
178. Power to order cases to be tried in different Sessions divisions.- Notwithstanding anything contained in Section 177, [the Government] may direct that any case or class of cases committed for trial in any district may be tried in any Sessions division.
179. Accused triable in district where act is done or where consequence ensues.- When a person is accused of the commission of any offence by reason of anything which has been done, and of any consequence which has ensued, such offence may be inquired into or tried by a Court within the local limits of whose jurisdiction any such thing has been done, or any such consequence has ensued.
Under Section 179, if an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence can be tried by any Court having jurisdiction where such thing was done or where the consequence ensued.
180. Place of trial where act is offence by reason of relation to other offence.- When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence, a charge of the first-mentioned offence may be inquired into or tried by a Court within the local limit of whose jurisdiction either act was done.
181. Being a thug or belonging to a gang of dacoits, escape from custody etc.- (1) The offence of being a thug, of being a thug and committing murder, of dacoity, with murder, of having belong to a gang of dacoits, or CRMC No.709/2017 Page 6 of 11 of having escaped from custody, may be inquired into or tried by a Court within the local limits of whose jurisdiction the person charged is. Criminal misappropriation and criminal breach of trust.- (2) The offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within the local „limits of whose jurisdiction any part of the property, which is the subject of the offence, was received or retained by the accused person, or the offence was committed.
Theft.- (3) The offence of theft, or any offence which includes theft or the possession of stolen property, may be inquired into or tried by a Court within the local limits of whose jurisdiction such offence was committed or the property stolen was possessed by the thief or by any person who received or retained the same knowing or having, reason to believe it to be stolen.
Kidnapping and abduction.- (4) The offence of kidnapping or abduction may be inquired into or tried by a Court within the local limits of whose jurisdiction the person kidnapped or abducted was kidnapped or abducted or was conveyed or concealed or detained.
These sections provide specific offences for place of trial.
182. Place of inquiry or trial where scene of offence is uncertain or not in one district only or where offence is continuing, or consists of several acts.- 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 local areas than one ; or 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.
This section is intended to solve the difficulty which would arise when there is a conflict between areas claiming jurisdiction, in order to prevent an accused from getting off entirely, just because there may be some doubt as to which particular Magistrate jurisdiction has in a given case.
183. Offence committed on a journey.- An offence committed whilst the offender is in the course of performing a journey or voyage may be inquired into or tried by a Court through or into the local limits of whose jurisdiction the offender, or the person against whom, or the thing in CRMC No.709/2017 Page 7 of 11 respect of which, the offence was committed, passed in the course of that journey or voyage.
12. If we carefully go through these sections, it is evident that offences mentioned in these sections may be inquired or tried by courts at more than one place, other than general principle embodied in section 177 of Cr.P.C. Section 178 vests power to Govt. to direct any case or class of case committed in any District to be tried by other Sessions Division.
13. Now question arises as to whether, the present case is to be tried at Jammu or Jammu Court has no territorial jurisdiction to take cognizance.
14. In present case, petitioners have been prosecuted for offences u/s 498-A /405/406 RPC.
15. In 2017 SCC on line J&K 50 in case titled Akshay Kachroo v Dr. Ishita Ganjoo, it is held as under.
"In Amarendu Jyoti, (2014) 12 SCC 362 (supra), cited on behalf of petitioners, the couple after their marriage had resided at Delhi where all the incidents of cruelty were alleged to have taken place and later the wife had gone to stay with her parents at Ambikapur in State of Chhattisgarh where she had lodged FIR under section 498-A I.P.C. against the husband. The High Court of Chhattisgarh in a petition under section 498-A held that having regard to the provisions of Section 178 and 179 of the Code that after respondent No.2 had left the appellants society at Delhi and gone to Ambikapur to reside with her father, the act of cruelty continued and therefore, the offence of cruelty was a continuing offence". The High Court relied on the fact that the wife was made to abandon her husbands company because of the cruel treatment and compelled to stay at Ambikapur, further, that the wife was subjected to cruelty by telephone calls over which she was threatened and demand of dowry was made. Honble Supreme Court noticed from the FIR lodged by the wife that all the incidents of cruelty alleged by the wife have occurred at Delhi and held in paragraph 11 of the reporting:
"11. We find that the offence of cruelty cannot be said to be a continuing one as contemplated by Sections 178 and 179 of the Code. We do not agree with the High Court that in this case the mental cruelty inflicted upon Respondent 2 continued unabated on account of no effort having been made by the appellants to take her back to her matrimonial home, and the threats given by the appellants over the telephone. It might be noted incidentally that the High Court does not CRMC No.709/2017 Page 8 of 11 make reference to any particular piece of evidence regarding the threats said to have been given by the appellants over the telephone. Thus, going by the complaint, we are of the view that it cannot be held that the Court at Ambikapur has jurisdiction to try the offence since the appropriate Court at Delhi would have jurisdiction to try the said offence. Accordingly, the appeal is allowed."
16. In Bhura Ram & ors. Vs. State of Rajasthan & anr., reported in (2008) 11 SCC 103, as cited on behalf of petitioners, Supreme Court, having regard to the fact situation of that case, has held in para 6 of the judgment:
"6. The facts stated in the complaint disclosed that the complainant left the place where she was residing with her husband and in-laws and came to the city Sri-Ganganagar, State of Rajasthan and that all the alleged acts as per the complaint had taken place in the State of Punjab. The Court of Rajasthan does not have the jurisdiction to deal with the matter. On the basis of the factual scenario disclosed by the complainant in the complaint, the inevitable conclusion is that no part of cause of action arose in Rajasthan and, therefore, the Magistrate concerned has no jurisdiction to deal with the matter. As a consequence, the proceeding before the Additional Chief Judicial Magistrate, Sri- Ganganagar are quashed."
17. In Y. Abraham Ajith Vs. Inspector of Police, Chennai & Anr., (2004) 8 SCC, 100 cited on behalf of petitioners, Supreme Court in paragraphs 10 and 11 has held:
"10. As observed by this Court in State of Bihar v. Deokaran Nenshi and Anr. (AIR 1973 SC 908), continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all, that it is one of those offences which arises out of the failure to obey or comply with a rule or its requirement and which involves a penalty, liability continues till compliance, that on every occasion such disobedience or non-compliance occurs or recurs, there is the offence committed.
11. A similar plea relating to continuance of the offence was examined by this Court in Sujata Mukherjee (Smt.) v. Prashant Kumar Mukherjee (1997 (5) SCC 30). There the allegations related to commission of alleged offences punishable under Section 498A, 506 and 323 IPC. On the factual background, it was noted that though the dowry demands were made earlier the husband of the complainant went to the place where complainant was residing and had assaulted her. This Court held in that factual background that clause (c) of Section 178 was attracted. But in the present case the factual position is different and the complainant herself left the house of the husband on 15.4.1997 on account of alleged dowry demands by the husband and his relations. There is thereafter not even a whisper of allegations about any demand of dowry or commission of any act constituting an offence much less at Chennai. That being so, the logic of Section 178 (c) of the Code relating to continuance of the offences cannot be applied."CRMC No.709/2017 Page 9 of 11
18. The legal position emerging from the aforementioned authorities cited at Bar can be stated, thus. An offence as a general principle can be committed once and only the Court within whose jurisdiction the offence has been committed will have jurisdiction to try the offence so committed. A continuing offence, however, can be tried both at the place where it is initially committed as well as the place or places where it continues to be committed. A continuing offence as defined by Supreme Court in State of Bihar v. Deokaran Nenshi, (1972) 2 SCC 890, referred to with approval in Y. Abraham Ajith (supra), generally is one of those offences which arise out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion such disobedience or non-compliance, occurs and recurs, there is offence committed. Supreme Court in this case has in paragraph 10 of the reporting drawn the distinction between an offence, which is continuing and an offence which is non-continuing in following terms:
The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.
An offence of cruelty defined and punishable under section 498-A RPC from its very nature cannot be a continuing offence as contemplated under paragraph 3 of section 182 of the Code in the sense that it continues to be committed even after its initial commission wherever the woman to whom it is committed may be and thereby gives jurisdiction to a court to try the offence even at a place where such woman opts or is CRMC No.709/2017 Page 10 of 11 compelled to reside after leaving the matrimonial house. The position, however, would be different in a case where some incidents of cruelty take place even at that place too. This legal position is well settled now in the recent judgment in Amarendu Jyoti and ors. (supra), where Their Lordships have categorically held that offence of cruelty cannot be said to be a continuing one as contemplated by sections 178 and 179 of the Central Code of Criminal Procedure (sections 182 & 179of the Code).
19. In present case as already noted, the complainant has categorically stated that after marriage she went to matrimonial house, which is at Panchkula;
she has also gone to USA. It is only in paragraph 11 of the complaint stated that an incident is alleged to have taken place at Jammu. As already held that facts in this para have cleverly been drafted to create illusion that cause of action has accrued to her within territorial jurisdiction of trial court. No act of cruelty and entrustment can be said to have been committed by the petitioners to the complainant at Jammu so taking cognizance of the offence and commencing proceedings for trial of the petitioners by a court at Jammu is sheer abuse of process of court and makes out a case for showing indulgence by this Court in order to prevent the abuse of the process of the court and to secure the ends of justice. I have gone through the law cited by counsel for respondent; this law is pertaining to different aspect of the matter, wherein certain finding of Apex Court in case titled Rajesh Kumar v. State of U.P. AIR 2017 SC 3869, has been modified. Viewed thus, this petition has merit and is allowed. The complaint filed by the complainant, order dated 23.09.2017 and the entire proceedings initiated by the Court of learned Judicial Magistrate (Sub Judge) Jammu, are quashed.
( Sanjay Kumar Gupta ) Judge Jammu 26.10.2018*Bir CRMC No.709/2017 Page 11 of 11