Madras High Court
Imran Chida vs State Represented By on 1 April, 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :01.04.2008 CORAM THE HONOURABLE MR. JUSTICE T. SUDANTHIRAM Crl.O.P.Nos.9024 and 20773 of 2005 Imran Chida ... Petitioner in Crl.O.P.No.9024 of 2005 Ali Ahmad Chida ... Petitioner in Crl.O.P.No.20773 of 2005 Ms.Shabana ... Petitioner in Crl.O.P.No.20773 of 2005. Versus 1. State represented by The Inspector of Police W.1, All Women Police Station Greams Road, Thousand Lights Chennai 600 006. 2.Tmt.Thaseen Fathima D/o.Syed Moinuddin 328, Ambujammal Street Alwarpet, Chennai 600 018 . ... Respondents in both Crl.O.Ps. Criminal Original Petitions filed under Section 482 Cr.P.C. to call for the records of the case in C.C.No.5337 of 2005, on the file of the Chief Metropolitan Magistrate, Egmore, Chennai-8 and quash the same. For Petitioners : Mr.V.Sankaranarayanan For Respondents : Mr.N.Kumanan Government Advocate(Criminal side) O R D E R
This petitioners seek to quash the proceedings pending against them before the learned Chief Judicial Magistrate, Egmore, Chennai in C.C.No.533 of 2005 for the offences under Section 498-A and 406 IPC and Section 4 of the Dowry Prohibition Act.
2. The case of the prosecution is that the defacto complainant who is the second respondent herein married the petitioner/first accused on 05.01.2003 and it was an arranged marriage. About one week prior to the date of marriage, the brother of the defacto complainant was called by the first accused family members and a sum of Rs.3 lakhs was demanded. The father and brother of the defacto complainant arranged a sum of Rs.2,50,000/- and they gave it to the petitioner/first accused and sister Shabna/4th accused. Thereafter, the petitioner/first accused had gone to Dubai and the defacto complainant's father arranged for his job and he had to bear all the expenses. At the time of marriage 200 sovereigns of jewels and diamond ring and other household articles were all given. A sum of Rs.10 lakhs was demanded instead of Car, but only Rs.7,50,000/- was paid. The defacto complainant also went to Soudhi Arabia and she joined her husband where she was treated by the petitioner/first accused like a servant-maid. As the defacto complainant become conceived, she had returned to India in the month of August and she gave birth to a female child on 12.10.2003. A further sum of Rs.22 lakhs was demanded by the accused and the first accused on visiting the house of the defacto complainant's mother, he insisted for payment of Rs.22 lakhs. On 30.07.2004, when the defacto complainant went to the house of the accused along with her brother, the in-laws of the defacto complainant abused her and demanded money and also beat her on the cheek and head and when it was questioned by the parents of the defacto complainant, the accused demanded a sum of Rs.22 lakhs and the defacto complainant was driven out of the matrimonial home. The accused have not returned the jewels and cash to the defacto complainant.
3. The learned counsel for the petitioners submitted that the First Information Report was registered and the case is also investigated only by the All Women Police Station, Thousand Lights, Chennai which had no jurisdiction. Even as per the allegations, the occurrence had taken place within the jurisdiction of St. Thomas Mount Police Station, Chenglepet East District and the Chief Metropolitan Magistrate had improperly taken the case on file. With regard to the demand of cash made one week prior to the marriage and with regard to the payment of Rs.2,50,000/-, the details of places are not mentioned. With regard to the allegations of other demands and payments are in the jurisdiction St.Thomas Mount and Southi Arabia. As such, no jurisdiction lies within the limits of the Thousand Lights Police Station. The learned counsel also relied on the decisions of the Honourable Supreme Court reported in 2004 Crl.L.J 4180 (Y.Abraham Ajith and Others v. Inspector of Police, Chennai and Another). As no part of cause of action arose within the jurisdiction of either All Women Police Station, Thousand Lights, Chennai or within the jurisdiction of Chief Metropolitan Magistrate, Egmore, the proceedings has to be quashed.
4. The learned counsel for the petitioners further submitted that the final report taken on file by the learned Chief Metropolitan Magistrate is contrary to law, since the entire proceedings become void ab initio as the petitioner and the second respondent have ceased to be husband and wife. When the first Thalak notice dated 19.11.2004 by RPAD and receiving the Thalak notice, the defacto complainant also sent a reply dated 11.12.2004 stating since you, yourself have admitted that the marriage has broken down I have no comments to offer and the second and third Thalak notice dated 20.12.2004 and 20.01.2004 respectively have also been sent by RPAD. Along with Thalak notice, a Demand Draft for Rs.25,000/- as agreed mahar and a Demand Draft for Rs.15,000/- as maintenance for the period of Iddat as per Shariat Law were sent and duly received. Once relationship of husband and wife seized the marriage had become annulled and as such the complaint under Section 498-A IPC relating to matrimonial offence could not be pursued and therefore, the proceedings has to be quashed. Similarly, the present status of parties have ceased to be husband and wife, the continuance of proceedings under the Dowry Prohibition Act also is not valid in law and therefore the proceedings has to be quashed.
5. The learned counsel for the petitioners also relied on the following decisions:
a. 2004 Crl.L.J. 4180 (Y.Abraham Ajith and Others v. Inspector of Police, Chennai and another) b. 2005(II) SCC 388 (Kamesh Panjiyar Alias Kamlesh Panjiyar v. State of Bihar) c. 2005(III) SCC 299 (Ruchi Agarwal v. Amit Kumar Agrawal and Others) d. 2005(III) SCC 302 (Mohd. Shamim and Others v. Nahib Begum(Smt) and Another) e. 2005(III) SCC 307 (Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav)
6. The learned Government Advocate was heard and he submitted that the First Information Report given by the defacto complainant, her statement recorded under Section 161 Cr.P.C and the statement of other related witnesses all make out ingredients of the offfences under Section 498-A, 406 IPC and Section 4 of the Dowry Prohibition Act. The learned Government Advocate submitted that the initial cause of action arose at Mount Road, Chennai, since the first demand before the marriage was made at the house of P.W.1 before her marriage. Even in the FIR, the place of occurrence is mentioned at Chennai Mount Road, St. Thomas Mount and Southi Arabia. The address of the defacto complainant at the time of giving First Information Report was also No.6, Maroof Sahib Street, Mount Road, Chennai, which is within the limits of Thousand Lights Police Station. The learned Chief Metropolitan Magistrate has got the jurisdiction for the entire Chennai. The learned Government Advocate further submitted that the offence under Section 498-A IPC was committed by the petitioner at the time of subsistence of the marriage. While the offence being committed, the petitioner was the husband of the defacto complainant. The subsequent Thalak would not exonerate him from the offence which had already been committed.
7. The learned counsel for the second respondent/defacto complainant was also heard and he had submitted that when the initial demand of dowry was made, the defacto complainant's parents were all living in Mount Road within the jurisdiction of Thousand Lights Police Station. When the demand was made and initial dowry payments were also made, all were residing in the house at Mount Road. The learned counsel further submitted that as per the statement of the defacto complainant, on 05.08.2004, the petitioner/1st accused, i.e., her husband and her in-laws came to her house and said that if the amount demanded is not paid, they would arrange for another marriage of the petitioner. Even in the FIR, the same fact is mentioned by the defacto complainant.
8. This Court considered the submissions made by all parties and perused the copy of the FIR and the copy of the final report along with the statement of the witnesses. The place of residence of the defacto complainant prior to the marriage was within the jurisdiction of the respondent police as per the statement of the defacto complainant. A week before betrothal a phone call was made to her brother and a demand of Rs.3 lakhs was made and it was also told that if the amount is not paid, there would not be any betrothal. After this demand only a sum of Rs.2.5 lakhs was paid by the father and brother of the defacto complainant in the house of the accused at St. Thomas Mount. Further it is the statement of the defacto complainant that she gave birth to a female child on 12.10.2003. In the month of November, her husband, i.e., the first accused/ petitioner herein returned from South Arabia and came to see the child. He often used to visit the house of the defacto complainant and stay for an hour. During those period, he insisted for the payment of Rs.22 lakhs as demanded by his mother. It is also the statement of the defacto complainant that on 05.08.2004 morning, the husband, father in law and mother in law of the defacto complainant came to her father's place and said that if the money is not paid, another marriage will be conducted to her husband.
9. A reading of the FIR, statement of the defacto complainant and other witnesses show that there had been a demand of money even prior to the marriage for the purpose of marriage and said demand continued till 05.08.2004. Initial demand and final demand arose when the defacto complainant was residing with her father at No.6, Maroof Sahib Street, Mount Road, Chennai.
10. Section 178 Cr.P.C and Section 179 Cr.P.C are as follows:
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 once, 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.
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. As per Section 178(d) Cr.P.C., this case may be enquired into or tried by a Court at Chennai also. When the initial demand of dowry was made prior to the marriage and when the final unlawful demand was made on 05.08.2004, the defacto complainant had been residing with her father at Mount Road and as such, by the act of an offfence done by the accused and a consequence having ensured to the defacto complainant when she was residing at Mount road house, the offence may be enquired or tried by a Court within Chennai.
11. In the decision relied by the learned counsel for the petitioners reported in 2004 Crl.L.J 4180 (Y.Abraham Ajith and others v. Inspector of Police, Chennai), it was held by the Honourable Supreme Court on the basis of the facts of the case that no part of cause of action arose in Chennai and therefore the concerned Magistrate had no jurisdiction to deal with the matter. It was also observed that a bare reading of the complaint would go to show that no part of the cause of action arose within the jurisdiction of the Court, where the complaint was filed. Therefore, this decision is not applicable to the present case as a part of cause of action is within the jurisdiction of Chennai in this case. Therefore, the contention of the petitioner that either the respondent/police or the learned Chief Judicial Magistrate, Chennai had no jurisdiction is rejected.
12. With regard to the next contention of the learned counsel for the petitioners that as Thalak had been pronounced and as the status of the husband and wife had seized, there can be no proceeding against the petitioner either for the offence under Section 498-A IPC or under Section 4 of the Dowry Prohibition Act is also only to be brushed aside.
13. Section 498-A IPC reads as follows:
498-A:Husband or relative of husband of a woman subjecting her to cruelty:- Whoever, being the husband or the relative of the husband of a woman; subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine. As per Section 498-A, at the time of committing the offence, against the woman, the accused must be either her husband of that woman or the relative of the husband of the woman. After committing the offence, any subsequent change of status in husband and wife, would not exonerate the accused from the charges. It is to be only seen that whether there was any subsistence of marriage between the husband and wife and whether they were living with the status of the husband at the time of the wife being subjected to cruelty or harassment.
14. Section 2 of the Dowry Prohibition Act is as follows:
2. Definition of dowry:- In this Act, dowry means any property or valuable security given or agreed to be given either directly or indirectly--
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before (or any time after the marriage) (in connection with the marriage of the said parties, but does not include) dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Section 4 of the Dowry Prohibition Act reads as follows:
4. Penalty for demanding dowry:- If any person demands, directly or indirectly, from the parents of other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees:
Provided that the Court may, for adequate and special reasons to be mentioned in the Judgment, impose a sentence of imprisonment for a term not less than six months.
15. As per Section 2 and 4 of the Dowry Prohibition Act, there may be a demand of dowry even before marriage but in connection with the marriage. To attract the penal provision of the demand of dowry even performance of marriage is not necessary. The status of the husband and wife is also not necessary. If the demand of dowry is made, whether the marriage is performed or not and whether status of bride and bridegroom is maintained or not, the offence under Section 4 of the Dowry prohibition Act is attracted. Similarly if the demand of dowry is made, after the marriage, but in connection with the marriage of the parties, the subsequent change of status of husband and wife would not wipe out or delete the offence which had already been committed.
16. In the decision cited by the learned counsel for the petitioners reported in 2005(2) SCC 388 (Kamesh Panjiyar alias Kamlesh Panjiyar v. State of Bihar), it is observed in paragraph-14 as follows:
14. The word dowry in Section 304-B IPC has to be understood as it is defined in Section 2 of the Dowry Act. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third at any time after the marriage. The third occasion may appear to be unending period. But the crucial words are in connection with the marriage of the said parties. Other payments which are customary payments e.g., given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression dowry. (See Satvir Singh v. State of Punjab). As was observed in the said case suicidal death of a married woman within seven years of her marriage is covered by the expression death of a woman is caused ... or occurs otherwise than under normal circumstances as expressed in Section 304-B IPC. In the present case also on facts, there had been a demand of dowry even before the marriage.
17. In the decision cited by the learned counsel for the petitioners reported in 2005(3) SCC 299 (Ruchi Agarwal v. Amit Kumar Agrawal and Others) and 2005(3) SCC 302 (Mohd. Shamim and Others v. Nahib Begum (Smt) and another), the proceedings were quashed by the Honourable Supreme Court, since in all those matters the parties have entered into a compromise and an undertaking was given to withdraw the criminal cases. Only under the said circumstances, the continuance of criminal proceeding was held to be an abuse of process. Such is not the case here. The defacto complainant has not entered into any compromise with the accused and she has not given any undertaking to withdraw the complaint against the accused. According to second respondent, the pronouncement of Thalak by the petitioner was one sided. In the reply given by the defacto complainant for the Thalak notice, the defacto complainant had stated that she had spoken about the harassment given to her and finally she had stated that about the Thalak, she had no comments to offer. As such, the defacto complainant had not given any undertaking to withdraw the criminal proceedings against the petitioner/first accused. The other decisions cited by the learned counsel for the petitioners do not help the first and second accused to quash the proceedings.
18. As far as the second petitioner is concerned in Crl.O.P.No.20773 of 2005, she is the sister in law of the defacto complainant and she is a married lady. As per the statement given by the defacto complainant before the Investigating Officer, no specific allegation is made against sister-in-law that she demanded any amount. Even the payment of Rs.2.5 lakhs was paid only to the father in law and the mother in law, second accused and third accused respectively. Though it is stated further payment of Rs.7.5 lakhs was paid to the father-in law, mother in law and also the sister in law, even there it is not stated that the sister-in-law/4th accused demanded any amount. Even according to the defacto complainant's statement, the sister in law was residing at Pondicherry and she used to come to the house at St.Thomas Mount. It is only stated that the sister in law and mother in law told the defacto complainant not to have the child immediately. There is no allegation that the sister in law of the defacto complainant harassed her in any manner. Even with regard to the occurrence on 05.08.2004, it was only the mother in law and the father in law and the husband of the defacto complainant demanded money and stated that another marriage would be arranged for her husband. As no specific allegation is made out against Shabana/4th accused to attract the ingredients of any of the offence, the proceedings in respect of her alone is quashed.
19. In the result, Crl.O.P.No.9024 of 2005 is dismissed and in respect of the first petitioner in Crl.O.P.No.20773 of 2005 is dismissed and in respect the second petitioner/Shabana in Crl.O.P.No.20773 of 2005, the petition is allowed. Consequently, connected M.Ps are closed.
ksr To
1. The Chief Metropolitan Magistrate Egmore, Chennai 600008.
2. The Inspector of Police W.1 All Women Police Station Greams Road, Thousand Lights Chennai 600 006.
3. The Public Prosecutor High Court, Madras.