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Andhra Pradesh High Court - Amravati

Nerella Chiranjeevi Arun Kumar vs The State Of Andhra Pradesh on 3 March, 2021

Author: Cheekati Manavendranath Roy

Bench: Cheekati Manavendranath Roy

                                  1
                                                                       CMR, J.
                                                          Crl. P.No.379 of 2020




     HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

                 Criminal Petition No.379 of 2020

ORDER:

This Criminal Petition under Section 482 Cr.P.C. is filed seeking quash of F.I.R. in Crime No.54 of 2016 of Mahila Police Station, Vijayawada, Krishna District.

2. Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the 1st respondent-State and learned counsel for the 2nd respondent-de facto complainant.

3. The petitioner is accused No.1 in Crime No.54 of 2016 of Mahila Police Station, Vijayawada, Krishna District. He is the husband of the 2nd respondent, who is the de facto complainant. The 2nd respondent lodged a report with the Police alleging that her marriage with the petitioner was solemnized on 04.06.2014 in Vijayawada. Thereafter, they both lived together for a period of 15 days and after 15 days, they left for America and they led happy conjugal life for a period of 2 months in America. Whileso, she got pregnancy. Thereafter, the petitioner and his parents and the sister of the petitioner by name Sahithi harassed her both physically and mentally. Some wild allegations viz the petitioner resorted to unnatural sex with the de facto complainant by forcing her to participate in such unnatural sex are also made in the report lodged by her with the police. It is stated that after harassing the de facto complainant physically and mentally, the 2 CMR, J.

petitioner brought her to India and left her at her parents' house and went away. The said report was registered by the police as a case in the above crime for the offences punishable under Sections 377 and 498-A of IPC and Sections 3 and 6 of the Dowry Prohibition Act. The said case is under investigation.

4. Learned counsel for the petitioner would submit that the Apex Court has struck down Section 377 IPC. Therefore, the present criminal prosecution launched against the petitioner for the offence punishable under Section 377 IPC is not maintainable and the same is liable to be quashed.

5. As regards the offence punishable under Section 498-A of IPC, his contention is two-fold. Firstly, it is contended that the contents of the F.I.R. show that the alleged physical harassment said to have been caused by the petitioner to the de facto complainant took place in America and no such incident of subjecting the de facto complainant to physical or mental harassment in India has taken place. Therefore, he would submit that the present case cannot be registered under Section 498-A of IPC against the petitioner for the offence that took place outside India i.e. in America. In support of his contention, he relied on Section 188 Cr.P.C. He would then contend that the allegations ascribed against the petitioner in the F.I.R. are all absolutely false and the petitioner has been 3 CMR, J.

implicated in a false case. Therefore, on these grounds, he would pray to quash the F.I.R. lodged against the petitioner.

6. As regards the offence under Section 377 IPC is concerned, learned Additional Public Prosecutor for the 1st respondent State and also learned counsel for the 2nd respondent-de facto complainant, would fairly concede that as the Apex Court struck down Section 377 of IPC that the present criminal prosecution of the petitioner for the offence punishable under Section 377 IPC is not maintainable.

7. However, as regards the offence punishable under Section 498-A of IPC is concerned, it has been contended that the facts of the case and the contents of the F.I.R. prima facie show that the alleged harassment caused to the de facto complainant, both physically and mentally, by the petitioner has not only taken place in America, but the same also took place in India. They would also further submit that even though the harassment was caused to the de facto complainant by the petitioner in America, where they lived together for some time, that the consequence of the said harassment ensued to the de facto complainant in India when she was brought by the petitioner to India, and left her in India. So, they would submit that the case can be registered even in India.

8. Learned counsel for the 2nd respondent de facto complainant would submit that even as can be seen from 4 CMR, J.

Section 188 Cr.P.C. sanction is required only for taking cognizance of the case and as the case is now under investigation and charge-sheet is yet to be filed and numbered that the bar contained in Section 188 Cr.P.C. is not applicable for registration of F.I.R. and for investigation of the case by the police. He submits that bar under Section 188 Cr.P.C. applies only at the time of taking cognizance of the said case by the trial Court. So, he would contend that as there is no bar on the police to investigate the case and to file charge-sheet, the present case cannot be quashed. Therefore, he would pray for dismissal of the Criminal Petition.

9. Perused the record.

10. As regards the offence punishable under Section 377 IPC, the Apex Court in the case of Navtej Singh Johar v. Union of India1 has struck down Section 377 IPC. The said judgment striking down Section 377 IPC was rendered on 06.09.2018. It is well settled law when an offence under any of the provisions of the Indian Penal Code was struck down, the same applies from the inception of the incorporation of said section of law in the Indian Penal Code. Therefore, it equally applies to the present case also which was registered in the year 2016. So, the launching of criminal prosecution against the petitioner for the offence punishable under Section 1 (2018) 10 SCC 1 5 CMR, J.

377 IPC is not maintainable. Therefore, the F.I.R. in so far as Section 377 IPC is concerned, it is liable to be quashed.

11. Apropos, the offence punishable under Section 498-A of IPC is concerned, the F.I.R. cannot be quashed on the ground that the allegations ascribed by the de facto complainant against the petitioner regarding physical and mental harassment caused to her by the petitioner are false. It is not a valid ground for quashing of F.I.R. It is settled law that the said disputed question of fact whether the allegations made in the F.I.R. are true or not cannot be gone into by this Court in a petition filed under Section 482 Cr.P.C. in exercise of its inherent powers. It is the matter to be ascertained during the course of investigation by the Investigating Officer whether the said allegations are true or not. At this stage, this Court do not find any valid legal ground warranting its interference under Section 482 Cr.P.C. to quash the F.I.R. for the offence punishable under Section 498-A of IPC on the ground that the allegations ascribed against the petitioner are false.

12. As regards the contention of the learned counsel for the petitioner that the contents of the F.I.R. prima facie show that the alleged physical and mental harassment said to have been caused by the petitioner to the de facto complainant took place in America, where they lived together for some time, and as no such incident took place in India that the present F.I.R. cannot be registered for the offence that took place in America is 6 CMR, J.

concerned, he relied on Section 188 Cr.P.C. which reads as follows:

"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."

13. A bare reading of Section 188 Cr.P.C. makes it manifest that when an offence is committed by a citizen of India, outside India, whether on the high seas or elsewhere, he can 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, only the proviso to Section 188 Cr.P.C. says that no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government. Therefore, the proviso only imposes a bar to inquire into the offence or trial of the said offence in India without previous sanction of the Central Government. The proviso did not impose any bar for registration of the crime and for investigation of the case, even though the offence that was committed by a citizen of India took place outside India. The proviso has imposed bar only to try the case without previous sanction of the Central Government. The said stage has not yet arisen in the matter. The matter is still under investigation 7 CMR, J.

and only after the final report is filed and when the Court takes cognizance of the said matter, then the sanction of the Central Government to try the case is required. A careful perusal of the said Section makes it very clear that sanction of the Central Government is not required to register the case or F.I.R. and to investigate the same. Therefore, the present F.I.R. cannot be quashed on the aforesaid objection raised by the learned counsel for the petitioner by invoking Section 188 of Cr.P.C.

14. The legal position in this regard is not res integra and the same has been elaborately dealt with by the Supreme Court in the case of Thota Venkateswarlu v. State of A.P.2 and by this Court in the case of Rapolu Anand v. State of A.P.3.

15. Section 3 of IPC is also relevant in this context to consider and it reads as follows:

"3. Punishment of offences committed beyond, but which by law may be tried within, India.--Any person liable, by any Indian law to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India."

16. Therefore, it is now clear from Section 3 of IPC also that any person liable, by any Indian Law, be tried for an offence committed beyond India and shall be dealt with according to the provisions of the Indian Penal Code for any act committed beyond India in the same manner as if such act had been 2 AIR 2011 SC 2900 3 2012(3) ALT (Cri.) 108 8 CMR, J.

committed within India. Even Section 4 of IPC also envisages that the provisions of the Indian Penal Code also apply to any offence committed by any citizen of India in any place within and beyond India. Explanation (a) to Section 4 IPC is relevant to consider which says that the word "offence" includes every act committed outside India which, if committed in India, would be punishable under the Indian Penal Code.

17. Further it is also well settled that even when the wife is subjected to physical and mental harassment by the husband and his relatives at one place and if the wife who was discarded by the husband or deserted by him, suffers the consequences of the said harassment at another place, the Court at that place, where she has been suffering the consequences of said harassment, would also have jurisdiction to try the case in view of Section 179 Cr.P.C. Section 179 Cr.P.C. reads as follows:

"179. Offence triable, where act is done or consequence ensues.

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."

18. The 3-Judge Bench judgment of the Apex Court in the case of Rupali Devi v. State of Uttar Pradesh4, while dealing with Section 179 Cr.P.C. in a matter relating to jurisdiction of Courts to take cognizance and issue legal proceedings where 4 AIR 2019 SC 1790 9 CMR, J.

woman was forced to take shelter with parents or other family members due to act of cruelty at matrimonial home held as follows:

"Courts at place where wife took shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498-A of IPC."

The Apex Court further held as follows:

"The adverse effects on mental health in the parental home though on account of the acts committed in matrimonial home would, in our considered view, amount to commission of cruelty within the meaning of Section 498-A of IPC at parental home. The consequences of the cruelty committed at the matrimonial home results in repeated offences being committed at parental home. This is the kind of offences contemplated under Section 179 Cr.P.C. which would squarely be applicable to the present case as an answer to question raised".

19. Relying on the said judgment, this Court also in the case of Lingam Anil Kumar v. Sowmya Lingam5 held at para.29 as follows:

"It is further clear that as per Section 179 Cr.P.C. that if the offence took place in one local area and its consequence has ensued in another local area, even the Court within whose jurisdiction the consequence has ensued also got jurisdiction to try the case."

20. In the instant case, as the de facto complainant has suffered the consequences of the alleged harassment said to have been caused at her matrimonial home here in India within the jurisdiction of the Police Station which registered 5 2020 (3) ALT (Cri) 187 (A.P.) = 2020 (2) ALD (Cri) 164 10 CMR, J.

the case, the said aspect has to be also taken into consideration in deciding the aspect of jurisdiction as raised by the petitioner.

21. In this context, it is also relevant to note that in order to constitute an offence under Section 498-A of IPC, the alleged harassment need not necessarily be in connection with any demand for additional dowry or security. The word "cruelty" is defined in the Explanation appended to Section 498-A of IPC. It is in two parts (a) and (b). The act of "cruelty" as defined in clause (a) need not necessarily be in relation to any unlawful demand for any property or valuable security. A careful perusal of clause (a) shows that any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause injury or danger to life, limb or health (whether mental or physical) of the said woman, is said to be an act of 'cruelty', for the purpose of prosecuting the said husband or his relative for the offence punishable under Section 498-A of IPC. As per settled law in this regard, the said wilful conduct of the accused must be offensively unjust to a woman and the degree of intensity of such unjust conduct on the part of the accused must be such as is likely to drive the woman to commit suicide or such conduct is likely to cause grave injury or danger to life, limb or to her mental or physical health.

CMR, J.

22. In the instant case, a perusal of the contents of the F.I.R. shows that the husband behaved in an abnormal manner where he has persistently insisted and forced the wife for unnatural sex. The contents of the F.I.R. speak volumes of the same. Though it is not an offence under Section 377 of IPC, certainly, it would be a conduct which is offensively unjust on the part of the husband to a woman, who is the de facto complainant, which conduct would likely to cause grave injury or danger to her life, limb or to her mental or physical health. Disjunctives are used in clause (a) of Explanation under Section 498-A of IPC. The said unjust conduct need not necessarily be a circumstance which may drive the woman to commit suicide. Since the disjunctives are used and if such unjust conduct even if it is likely to cause injury to her life, limb or to her mental or physical health and when it adversely affects the mental health of a woman, it would fall within the definition of "cruelty". This Court in the above judgment in Lingam Anil Kumar5 also dealt with the said legal position at para.21 of the said judgment. Therefore, these are all the matters to be elaborately and extensively examined during the course of investigation and, if charge-sheet is filed, at the time of taking cognizance.

23. Since, prima facie, the offence under Section 498-A of IPC is made out from the facts of the case, it is not a case for quashing the F.I.R. for the offence punishable under Section 498-A of IPC.

CMR, J.

24. Therefore, in view of the aforesaid discussion, this Court do not find any substance in the contention of the petitioner that the present F.I.R. cannot be registered in India and that the same is liable to be quashed in view of Section 188 Cr.P.C.

25. The Criminal Petition is partly allowed quashing the F.I.R. registered for the offence punishable under Section 377 IPC. As regards the offences punishable under Section 498-A of IPC and Sections 3 and 6 of the Dowry Prohibition Act are concerned, the registration of F.I.R. is found to be valid and investigation shall go on. The Criminal Petition, in respect of the offences punishable under Section 498-A of IPC and Sections 3 and 6 of the Dowry Prohibition Act, is hereby dismissed.

The miscellaneous petitions pending, if any, shall also stand closed.

________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date:03.03.2021.

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