Rajasthan High Court - Jaipur
Vikas Sawlani vs State Of Rajasthan And Anr on 31 May, 2013
Author: R.S.Chauhan
Bench: R.S.Chauhan
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER Vikas Sawlani Versus State of Rajasthan & Anr. SB CRIMINAL MISC. PETITION NO.161/2013 UNDER SECTION 482 CR.P.C. FOR QUASHING OF FIR NO.183/2012 REGISTERED AT POLICE STATION KHAIRTHAL, DISTRICT ALWAR FOR OFFENCES UNDER SECTIONS 498A AND 406 IPC. Date of Order :- May 31, 2013 REPORTABLE PRESENT HON'BLE MR. JUSTICE R.S.CHAUHAN Mr. A.K. Gupta, for the petitioner. Mr. J.R. Bijarnia, Public Prosecutor for the State.
Mr. Ajay Choudhary, for the respondent No.2.
Aggrieved by lodging of FIR against him, namely FIR No.183/2012, registered at Police Station Khairthal, District Alwar for offences under Sections 498A and 406 IPC, the petitioner, Mr. Vikas Sawlani, has approached this court for quashing of the same.
The brief facts of the case are that the complainant-wife, Mrs. Manisha Devi, and Mr. Vikas Sawlani were married on 28.3.2009 at Jaipur. After marriage, both the parties started living together in Mumbai. However, within four months of the marriage, disputes erupted between the parties. In December, 2009, Manisha returned from Mumbai and went back to her paternal place at Khairthal, District Alwar. Subsequently, she filed a criminal complaint against the petitioner and his family members before the Judicial Magistrate, First Class, Kishangarhbas, District Alwar. The learned Magistrate sent the complaint for further investigation under Section 156(3) Cr.P.C. On the basis of the said complaint, on 17.6.2010 the Police Station Khairthal registered a formal FIR for offences under Sections 498A, 406 IPC.
However, after sometime both the parties compromised their differences. On 12.10.2010 they entered into a compromise. Thereafter, Mrs. Manisha Devi submitted an application before the SHO, Police Station Khairthal. Therefore, on the basis of the said compromise, the police submitted a negative Final Report before the learned Magistrate. But despite the compromise entered between the parties and even after Manisha shifted back to Mumbai, the dispute again erupted between the couple. Therefore, Manisha Devi filed a protest petition before the learned Magistrate. By order dated 6.9.2011, the learned Magistrate directed the police to re-investigate the case and to submit its report. Thus, the FIR continues to exist; the investigation continues to be made. Hence, this petition for quashing of the FIR.
Mr. A.K. Gupta, the learned counsel for the petitioner has raised the following contentions before this court: firstly, according to Mrs. Manisha Devi, all the acts of cruelty were committed at Mumbai. Therefore, neither the Police Station Khairthal, nor the courts at Kishangarhbas have the territorial jurisdiction to investigate and to try the case respectively. In order to buttress this contention, the learned counsel has relied on the cases of Y. Abraham Ajith & Ors. Vs. Inspector of Police, Chennai & Anr. [2004(2) WLC(SC) Criminal 597], Manish Ratan & Ors. Vs. State of M.P. & Anr. [2007(1) WLC(SC) Criminal 132], Asit Bhattacharjee Vs. Hanuman Prasad Ojha & Ors. [(2007) 5 SCC 786], Roop Singh & Ors. Vs. State of Rajasthan & Anr. [2008(3) RCC 1073] and Rasik Lal Dalpatram Thakkar Vs. State of Gujarat & Ors. [(2010) 1 SCC 1].
Secondly, once the parties had reached a compromise, the complainant is pre-empted from filing a protest petition and from continuing the criminal proceedings. In order to buttress this contention, the learned counsel has relied on the cases of Ruchi Agarwal Vs. Amit Kumar Agrawal & Ors. [(2005) 3 SCC 299] and Mohd. Shamim & Ors. Vs. Smt. Nahid Begum & Anr. [(2005) 3 SCC 302].
Lastly, once the police had submitted a negative Final Report, the learned Magistrate could not have directed re-investigation of the case. Since he has used the word Punah which mens re, therefore, the learned Magistrate has directed re-investigation of the case. Hence, he has overstepped his jurisdiction.
On the other hand, Mr. Ajay Choudhary, the learned counsel for the respondent-wife, Mrs. Manisha Devi has raised following arguments before this court: firstly, a bare perusal of the FIR would clearly reveal that the complainant-wife has made specific allegation about the incidents which had taken place in Khairthal itself. In Para-4 of her complaint, she has clearly stated that on 19.10.2009 when her husband came to drop her of at her paternal place at Khairthal, he not only told her parents that they had given a meager dowry, but also demanded Rs.10 Lacs from them. Her parents pleaded that they have already spent a lot of money on the marriage. Therefore, they need sometime before his demand can be fulfilled. In Para-7 of the complaint, she has also claimed that both in January, 2009 as well as in March, 2010 her parents had tried to reason with the petitioner. In March, 2010 all the accused persons, including the petitioner, had come to Khairthal. They had demanded dowry of Rs.10 Lacs from her parents. Despite the best efforts made by her parents, they were adamant on their demand. Thus, there are two incidents which had taken place in Khairthal. Thus, part of the offence of Section 498A IPC had been committed at Khairthal itself.
Secondly, Section 179 Cr.P.C. grants jurisdiction to a court not only where the offence has occurred, but most importantly where the consequences follow. Therefore, although the respondent wife may have been subjected to cruelty in Mumbai, but on return to her parental place and staying with her parents at Khairthal consequences of the offence followed there. Therefore, as per Section 179 Cr.P.C., the courts under whose jurisdiction the consequences have followed, namely the court at Kishangarhbas, would have the jurisdiction to try the case. In order to buttress this contention, the learned counsel has relied upon the cases of Smt. Sujata Mukherjee (Smt.) Vs. Prashant Kumar Mukherjee [(1997) 5 SCC 30], Satvinder Kaur Vs. State (Govt. of N.C.T. Of Delhi) & Anr. [(1999) 8 SCC 728], State of M.P. Vs. Suresh Kaushal & Anr. [(2003) 11 SCC 126] and Sunita Kumari Kashyap Vs. State of Bihar & Anr. [(2011) 11 SCC 301].
Thirdly, merely because the parties had entered into a compromise it would not prevent the complainant wife from contesting the case, especially when the accused persons resile from the compromise and continue to inflict cruelties upon the complainant wife.
Lastly, even if the learned Magistrate has directed re-investigation, even then this court can direct the police to further investigate the case. Therefore, this court is free to modify the said order.
Heard the learned counsel for the parties and perused the FIR and considered the case laws cites at the Bar.
Chapter-XIII of the Code of Criminal Procedure ('the Code', for short) deals with the Jurisdiction of Criminal Courts for Inquiries and Trial.
Section 177 Cr.P.C. is as under:-
177. Ordinary place of inquiry and trial. Every offence shall ordinarily be inquired into and tried by a Court within whose localjurisdiction it was committed.
Section 178 Cr.P.C. is as under:-
178.Place of inquiry or trial. (a) When it is uncertain in which of several local areas an offence was committed, or
(b) where an offence is committed, partly in one local area and partly in another, or
(c) where an offence, is a continuing one, and continues to be committed in more local areas than one, or
(d) 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.
Section 179 Cr.P.C. is as under:-
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.
Section 181 Cr.P.C. is as under:-
181.Place of trial in case of certain offences. (1) Any offence of being a thug, or murder committed by a thug, of dacoity, of dacoity with murder, of belonging to a gang of dacoits, or of escaping from custody, may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the accused person is found.
(2) Any offence of kidnapping or abduction of a person may be inquired into or tried by a Court within whose local jurisdiction the person was kidnapped or abducted or was conveyed or concealed or detained.
(3) Any offence of theft, extortion or robbery may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property which is the subject of the offence was possessed by any person committing it or by any person who received or retained such property knowing or having reason to relieve it to be stolen property.
(4) Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person.
(5) Any offence which includes the possession of stolen property may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property was possessed by any person who received or retained it knowing or having reason to believe it to be stolen property.
A bare perusal of these provisions clearly reveal that the general rule with regard to territorial jurisdiction is that the courts where the offence has been committed would have the territorial jurisdiction to try the case. However, the Code itself makes exceptions to the general rule. Sections 178, 179 and 181 Cr.P.C. are examples of exceptions made by the Code. Section 178 lays down four circumstances when courts other than the court where the act has been committed would equally have the jurisdiction to try the cases: firstly, when it is uncertain in which of several local areas an offence was committed; secondly, where an offence is committed partly in one local area and partly in another; thirdly, where an offence is a continuing one, and continues to be committed in more local areas than one; and lastly, where it consists of several acts done in different local areas.
Similarly Section 179 Cr.P.C. prescribes that the courts where the act was committed, or where the consequences of such an offence follow, both the courts would have the jurisdiction to try the cases. Therefore, it is a fallacious argument to plead that only the said court where the offence has been committed would have the jurisdiction to try the case.
Section 181 Cr.P.C. is also an exception to Section 177 Cr.P.C. According to Section 181(4), any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person (emphasis added). Hence, it is not necessary that an offence should be tried only where it is committed. In order to deal with variety of circumstances, the Code has prescribed exception to the general rule. It has empowered different courts to try the cases depending on the nature of the offence and upon the circumstances of the case.
Moreover, in catena of cases the Apex Court has opined that the principles governing the territorial jurisdiction of the court would also cover the territorial jurisdiction of the police to investigate the case.
In the present case, as mentioned above, according to the complainant wife, twice the demand for dowry of Rs. 10 Lacs was made at Khairthal. In fact, even on the last occasion in March, 2010, when she was left at Khairthal, even then the dowry demand was made at Khairthal. Therefore, as per Section 178(b) Cr.P.C. the place where a part of the offence was committed, the courts there would have the territorial jurisdiction to try the case.
Moreover, Section 179 Cr.P.C. clearly stipulates that the courts where consequences of an offence follow, even those courts would have the territorial jurisdiction to try the case. The complainant had to leave the matrimonial home due to cruelties unleashed upon her by the petitioner and his family members at Mumbai. Therefore, as a consequence, she had to return back to her parental home at Khairthal. Since consequence of the offence which was committed at Mumbai, occurred at Khairthal, therefore the courts at Kishangarhbas, under whose jurisdiction Khairthal falls, would have the jurisdiction to try the case.
The learned counsel for the petitioner has relied on the case of Y. Abraham Ajith & Ors. (supra) and on the case of Manish Ratan & Ors. (surpa) in order to contend that the complainant can only lodge a FIR and the case can be tried only by the courts where the cruelties were committed. However, neither of these cases dealt with Section 179 Cr.P.C.
It is only in the case of Suresh Kaushal & Anr. (supra) that the Hon'ble Supreme Court has dealt with Section 179 Cr.P.C. at length and has examined its co-relation with the offence under Section 498A IPC. In the said case the complainant was married at Jabalpur but her matrimonial home was at Indore. Although allegations about inflicting cruelties related to Indore, but the complaint was filed at Jabalpur. The Hon'ble High Court of Madhya Pradesh interfered and held that the courts at Jabalpur would not have the territorial jurisdiction as the acts of cruelties were committed at Indore. However, setting aside the order passed by the High Court, the Hon'ble Supreme Court held that obviously the learned Single Judge has not considered the implication of Section 179 of the Code of Criminal Procedure. It is extracted before 179 (sic). 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.
The case of Suresh Kaushal & Anr. (supra) has recently been followed by the Apex Court in the case of Sunita Kumari Kashyap (supra). In this case also the complainant-wife was married at Gaya. The acts of cruelties were inflicted upon her at Ranchi. Due to the cruelties inflicted upon her, she returned back to her parental home at Gaya; the FIR was lodged at Police Station Magadh Medical College, Gaya. A contention was raised that the courts at Gaya had no jurisdiction as the acts of cruelties were committed at Ranchi. However, the learned Magistrate rejected this contention. The matter traveled upto the Hon'ble Patna High Court. The Hon'ble Patna High Court quashed the criminal proceedings at Gaya as it held that the courts at Ranchi would have the territorial jurisdiction. Thus, the complainant-wife approached the Apex Court. The Apex Court not only relied on Sections 177, 178 and 179 Cr.P.C., but also noticed its decision in the case of Sujata Mukherjee (Smt.) (supra) and Suresh Kaushal & Anr. (supra) and concluded as under:-
11. We have already adverted to the details made by the Appellant in the complaint. In view of the specific assertion by the Appellant-wife about the ill-treatment and cruelty at the hands of the husband and his relatives at Ranchi and of the fact that because of their action, she was taken to her parental home at Gaya by her husband with a threat of dire consequences for not fulfilling their demand of dowry, we hold that in view of Sections 178 and 179 of the Code, the offence in this case was a continuing one having been committed in more local areas and one of the local areas being Gaya, the learned Magistrate at Gaya has jurisdiction to proceed with the criminal case instituted therein. In other words, the offence was a continuing one and the episode at Gaya was only a consequence of continuing offence of harassment of ill-treatment meted out to the complainant, Clause (c) of Section 178 is attracted. Further, from the allegations in the complaint, it appears to us that it is a continuing offence of ill-treatment and humiliation meted out to the Appellant in the hands of all the accused persons and in such continuing offence, on some occasion all had taken part and on other occasion one of the accused, namely, husband had taken part, therefore, undoubtedly Clause (c) of Section 178 of the Code is clearly attracted.
In the case of Gulshan Kapoor & Ors. Vs. State of Rajasthan & Anr. [RLW 2011(4) Raj. 3520], this court, too, has relied upon the judgment of the Apex Court in order to conclude that the court where the consequence of an offence follow would have the jurisdiction to try the case. In this case also the parties were married and lived in Delhi. But due to the atrocities committed by the husband, Gulshan Kapoor, the wife, returned back to her parental home at Atalbandh, District Bharatpur. Subsequently she lodged a FIR at Police Station Atalbandh (Bharatpur). The police, after investigation, submitted a chargesheet against Gulshan Kapoor and others. The learned trial court took cognizance. Gulshan Kapoor and others filed an application under Section 177 Cr.PC. wherein they raised the issue of territorial jurisdiction of the court. However, the learned Magistrate dismissd their application. Hence, Gulshan Kapoor and others approached this court. But even this court, while relying on Sections 177, 178, 179 and 181 Cr.P.C. and upon the case laws cites above, clearly held that the courts where the consequences of offence follow would have the territorial jurisdiction to try the case.
Thus, in the light of the relevant provisions of law, mentioned above, and in the light of the case laws it is rather apparent that the courts where the consequences of an offence also occur, even the said courts would have the territorial jurisdiction to try the case. In the present case, as mentioned above, the respondent-wife had to leave Mumbai and had to return to her paternal place at Khairthal. Hence, both the police station at Khairthal, and the courts at Kishangarhbas under whose jurisdiction Khairthal falls, would have the territorial jurisdiction to investigate and try the case respectively.
Moreover, in the present case, allegedly the Stridhan was given at Khairthal where the marriage had taken place. It was also required to be returned back at Khairthal where the complainant-wife was residing with her parents. Thus, under Section 181(4) Cr.P.C., the police at Khairthal would have the power to investigate the case and the court at Kishangarhbas under whose jurisdiction Khairthal falls, would have jurisdiction to try the case.
Mr. Gupta has relied upon the cases of Ruchi Agarwal (supra) and of Mohd. Shamim & Ors. (supra) in order to buttress his plea that once the husband and wife have entered a compromise, the wife cannot file a protest petition and pursue the criminal proceedings. However, neither of the cases come to the rescue of the petitioner. Both the cases are distinguishable on factual matrix itself. According to the facts of Ruchi Agarwal's case (supra), the husband and the wife had entered into a compromise. According to the compromise, the entire Stridhan had been returned to the wife. The wife had clearly admitted that she will not be entitled for maintenance in future, as she had accepted the maintenance in lump sum. Moreover, she had also furnished an undertaking that she will withdraw all the cases filed against the husband and his family. Although the complaint wife withdrew the complaint filed under Section 125 Cr.P.C., but she did not withdrew the complaint filed for offences under Sections 498A, 323, 506 IPC. The Apex Court noted the fact that it is only on the basis of the compromise that the divorce decree on the basis of mutual consent was granted to the parties. It is in these circumstances that the Apex Court concluded that it would be an abuse of process of court if criminal proceedings from which appeal arose were allowed to continue. However, the Apex Court has not laid down any universal principle that in case of a compromise, the complainant-wife cannot file a protest petition after the compromise has been made. After all, each case will depend on its peculiar facts and circumstances. Thus, the case of Ruchi Agarwal (supra) does not buttress the case of the petitioner.
Similarly in the case of Mohd. Shamim & Ors. (supra), the husband and the wife had entered into a compromise. The wife had already received Rs.2,25,000/- as full and final settlement of the dispute. Although the wife had denied execution of the compromise, but the fact remains that she never returned the amount of money received by her. Therefore, the Apex Court opined that in such a scenario, continuance of criminal proceedings against the husband would be abuse of process of court. However, in the present case, neither the Stridhan has been returned, nor any lump sum amount has been paid as maintenance. The complainant-wife continues to fight for her Stridhan as her allegation is also for offence under Section 406 IPC. Hence, reliance on the case of Mohd. Shamim & Ors. (supra) is misplaced.
It is, indeed, a settled position of law that the Magistrate cannot direct re-investigation of the case. He/she can merely direct further investigation of the case. By order dated 6.9.2011, the Magistrate has directed re-investigation of the case. Therefore, this court modifies the said order to the limited extent that the police is directed to further investigate the case and to submit its report before the Magistrate. Since the case has been pending for last two years at the initial stage of investigation, the police is directed to complete its investigation within a period of one month from the date of receipt of certified copy of this order and to submit its report before the concerned Magistrate. The Magistrate shall proceed further in accordance with law.
With these directions and for the reasons stated above, this petition is, hereby, disposed of. The stay application is also disposed of.
(R.S.CHAUHAN), J.
GS All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Govind Sharma, PA