Rajasthan High Court - Jaipur
Dr Amit Gulati And Anr vs State Of Rajasthan And Anr on 14 December, 2016
Author: Prakash Gupta
Bench: Prakash Gupta
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR.
JUDGMENT
SB CIVIL CRIMINAL MISC. PETITION NO.4550/2015
1. Dr. Amit Gulati son of Dr. K.C. Gulati, resident of Plot No. D-42,
Subhash Marg, C-Scheme, Jaipur (Rajasthan) at Presently
residence of Hamburger, CH.49.24113 KIEL, Germany
2. Mrs. Shyama Gulati wife of Dr. K.C. Gulati, resident of Plot No. D-
42, Subhash Marg, C-Scheme, Jaipur (Rajasthan) at Presently
residence of Hamburger, CH.49.24113 KIEL, Germany
...Petitioner/Accused
-VERSUS-
1. The State of Rajasthan through Public Prosecutor
2. Dr. Ritu Gulati wife of Amit Gulati, resident of House No. 63,
Vidyut Nagar-B, Queen Road, Jaipur
....Respondents/Complainant
Date of Judgment ::::::: . . 2016
HON'BLE MR. JUSTICE PRAKASH GUPTA
Mr. R.N. Mathur, Senior Counsel assisted by
Mr. Vipin Sharma for the petitioners.
Mr. V.R. Bajwa, Mr. Shailesh Prakash Sharma,
Mr. Amar Kumar & Mr. Gaurav Singh for the complainant-non-
petitioner No.2.
Mr. RS Shekhawat, PP for the State along with Shri Bhopal Singh
Station House Officer, Vaishali Nagar, Jaipur.
Reportable:
By the Court:
Heard the learned counsel for the parties.
2. Present petition has been filed under Section 482 Cr.P.C. seeking quashing of First Information Report bearing No.89/2012 dt. 04/03/2012 registered at Police Station Vaishali Nagar, Jaipur City (South) for commission of offence punishable under Section 498-A I.P.C.
3. The aforesaid report has been lodged by the complainant Smt. Ritu Gulati.
4. It is revealed from the F.I.R. that the complainant was married with petitioner No.1 Dr. Amit Gulati on 21/01/2000 at 2 Jaipur. The present accused-petitioners are stated to be husband of the complainant and mother-in-law of the complainant respectively. The aggrieved complainant/wife-Ritu Gulati had obtained Ph.D psychology from Rajasthan University. The complainant had returned from Germany in the year 2011 and since then she has been residing in Jaipur.
5. It is submitted by learned Senior counsel for the petitioner, Shri R.N. Mathur, that both the petitioners and complainant are citizens of Germany. In view of Section 2 & 4 I.P.C., F.I.R. could not be registered in India. The present F.I.R. is registered after a delay of about 11 years. Earlier, no complaint was lodged despite the fact that the complainant frequently visited India. The F.I.R. against the co-accused i.e. Dr. Amla Batra and Dr. K.C. Gulati who are maternal aunt and father in law respectively of the petitioner No.1 was quashed by this court vide order dt. 30/06/2014 and 25/02/2015 respectively. No specific allegation is levelled against the petitioner No.1 in the F.I.R. Allegation levelled against the mother-in-law petitioner No.2 is similar to those levelled against the maternal aunt of the petitioner No.1 and the F.I.R. against maternal aunt has been quashed by this court. He has placed reliance upon the judgments in the case of (1) Fatma Bibi Ahmed Patel Vs. State of Gujarat and another (2008) 6 SCC 789, (2) Bhushan Kumar Meen Vs. State of Punjab and others (2011) 8 SCC 438, (3) Smt. Prem Lata Soni Vs. State of U.P. & Anr. 2010(32) Criminal CC 807, (4) Preeti Gupta & Anr. vs. State of Jharkhan & Anr. (2010) 7 SCC 667 and (5) Onkar Nath Mishra & Others vs. State (NCT of Delhi) and Another (2008) 2 SCC 561.
6. On the other hand, learned counsel for the non-petitioner- No.2/complainant Shri V.R. Bajwa has submitted that at this stage, 3 only contents of the F.I.R. are to be seen. At this stage, a reasonable suspicion is sufficient. The case of present petitioners is distinguishable from the case of Dr. Amla Batra and Dr. K.C. Gulati. The definition as provided in Section 498-A I.P.C. is very wide. In this case, it prima facie appears from the allegation in the F.I.R. that mental cruelty has been done by the petitioners. It is submitted that this fact is not mentioned in the petition that the petitioner are citizens of Germany. Offence under Section 498-A I.P.C. is a continuing offence. The part of the offence is committed in India and therefore, part of cause of action arose in India. Therefore, the territorial jurisdiction is lies in Jaipur. Section 468 Cr.P.C. does not apply in this case, whereas Section 179 Cr.P.C., 472 Cr.P.C., 181(4) Cr.P.C. are applicable, Section 181(4) Cr.P.C. was not considered by the Apex Court in Harmanpreet Sing's case, therefore, the case of Harmanpreet Singh is perincuriam.
In support of his contentions he has placed reliance upon the judgment (1) Vijai Ratan Sharma and others Vs. State of U.P. and another, 1988 CRI.L.J. 1581, (2) Santokh Singh and others Vs. State of Madhya Pradesh 1988 CRL. L.J. 1583, (3) Satvinder Kaur Vs. State (Govt. of N.C.T. of Delhi) & Anr. 1999(2) Supreme (Cr.) 359, (4) Trisuns Chemical Industry Vs. Rajesh Agarwal and others 1999 CRL. L.J. 4325, (5) Kushal Kumar Gupta & Anr. Vs. Mala Gupta JT 2011 (10) SC 110, (6) M.L. Bhatt Vs. M.K. Pandita & Ors. JT 2002 (3) SC 89, (7) S. Ganesan Vs. Dist. Collector, Tiruchirapalli JT 2002 (3) SC 90, (8) M. Narayandas Vs. State of Karnataka & Ors. JT 2003 (Suppl.1) SC 412, (9) Pratibha Vs. Rameshwari Davi & Ors. JT 2007 (11) SC 122, (10) Ravindra Kumar Madhanlal Goenka & Anr. Vs. M/s. Rugmini Ram Raghav Spinners P. 4 Ltd. JT 2009 (13) SC 203, (11) Ajay Agarwal Vs. Union of India and others (1993) 3 SCC 609 and (12) State Bank of India Vs. Yumnam Gouramani Singh (1993) 3 SCC 631.
The learned counsel for the non-petitioner No.2 complainant has strenuously argued that the non-petitioner No.2 has been sent to India and has been warned not to return to Germany without getting pregnant and therefore, the part of offence has taken place in India thus, conferring jurisdiction to Indian courts.
The argument, on its face, appears attractive but it is fallacious in as much as even if it is assumed, though there is no specific averments in the F.I.R. to the effect that she was forced to come to India by illegal means, the event had undoubtedly taken place in Germany and if she is forced by a person sitting in Germany not to enter Germany then again the event would ultimately take place in Germany and in both cases cause of action, if any, would arise in Germany and not in India. Therefore, the argument is not acceptable and the judgment in Ajai Agarwal Vs. Union of India & Ors. (supra) wherein the issue of criminal conspiracy was involved and residence of the accused was immaterial, is not applicable to the facts of the present case.
It is an admitted fact that the marriage between Petitioner No.1 and non-petitioner No.2/Complainant was solemnized in Jaipur on 25th January, 2000 and the Petitioner No.1 was a citizen of Germany at the time of the said marriage and has been so since then. It has been stated in the petition that the non-petitioner No.2 had acquired citizenship of Germany in 2006. The non-petitioner No.2 has not rebutted this fact in her counter affidavit and instead she has admitted the fact that she is registered as an overseas citizen of India under the Citizenship Act, 1955. As such, it is also 5 an admitted fact that the non-petitioner No.2 is a citizen of Germany. There are no specific allegations against the Petitioner No.1 in the FIR about coercion or harassment. The non-petitioner No.2/ Complainant has not said a single word to the effect that misrepresentations, if at all, made to her before the marriage were made by or at the instance of the Petitioner No.1 nor has she said that she was sent to India to get pregnant by her husband. Contrary to it, there is a fact that Complainant remained with her husband for 11 long years, took care of him during his ill health and also obtained citizenship of Germany presumably with intent to remain with him. There is an allegation that her salary earned through job in Germany was deposited by her husband in his account but it has not been stated that it was done under duress. Even if it was under duress, it is astonishing as to why she did not take recourse to the law of Germany of which she is a citizen. Be that as it may, it is an undisputed fact that the Petitioner No.1 is and has been a citizen of Germany before his marriage with the non-petitioner No.2/Complainant and the major part of the event took place in Germany.
In Fatma Bibi Ahmed Patel (supra) it has been held by the Hon'ble Supreme Court as under:
"13. In our constitutional scheme, all laws made by Parliament primarily are applicable only within the country. Ordinarily, therefore, all persons who commit a crime in India can be tried in any place where the offence is committed. Section 4 of the Penal Code, however, extends the scope of applicability of the territorial jurisdiction of the court of India to try a case, the cause of action of which took place outside the geographical limits. Parliament indisputably may enact a legislation having extra-territorial application but the same must be applied subject fulfilment of the requirement contained therein.
14. There are materials before us to show the appellant is a citizen of Mauritius. She has been visiting India on visas issued by India. She, thus, indisputably is not a citizen of India. She might have been staying in India with her 6 relatives as has been contended by the complainant, but it has not been denied and disputed that she is not a citizen of India. If she is not a citizen of India having regard to the provisions contained in section 4 of the Penal Code and Section 188 of the Code of Criminal Procedure, the order taking cognizance must be held to be illegal. (Emphasis is added by me)
15. In terms of Section 4 of the Penal Code, the Indian courts will have jurisdiction to try an accused only if the accused is citizen of India even if the offence was committed outside India or by any person on any ship or aircraft registered in India wherever it may be. Neither of the aforementioned contingencies is attracted in the instant case. Section 188 of the Code of Criminal Procedure also deals with offences committed outside India. Clause (a) brings within its sweep a citizen of India, whether on the high seas or elsewhere, or by a person although not citizen of India when the offence is committed on any ship or aircraft registered in India. (Emphasis is added by me).
16. In view of the fact that the offence is said to have been committed in Kuwait, the provisions of the Penal Code or the Code of Criminal Procedure cannot be said to have any application." (Emphasis is added by me) In Harmanpreet Singh Ahluwalia v/s State of Punjab (2009) 7 SCC712 the Hon'ble Apex Court observed in Para 32 of the Judgment that-
"32. Furthermore, the larger part of offence, if any, has been committed only in Canada. Why the father of Respondent 3 had to come from Canada to Jalandhar to Lodge FIR is difficult to comprehend. Respondent 3 and the first information do not say that inquiry report submitted by the Superintendent of Police on the representation made by Appellant 2 was incorrect. It has also not been stated that as to on what material, the charge sheet has been submitted. We, in the peculiar facts and circumstances of this case, have absolutely no doubt in our mind that the allegation contained in the FIR has been made with an ulterior motive to harass the appellant. Continuance of the criminal proceedings against them would, therefore, amount to abuse of process of the Court." (Emphasis is added by me) Since major part of the events pertaining to the Petitioner No.1 have been alleged in FIR to have taken place in Germany i.e. outside India and the Petitioner No.1 is not a citizen of India, in view of the judgment of the Hon'ble Apex Court in Fatima Bibi Ahmed Patel's case (supra) neither the Penal Coder nor the Code of Criminal Procedure has any application in this matter and no 7 court in India has jurisdiction to take cognizance or try the matter. Therefore, in view of the provisions of Section 156 of the Code of Criminal Procedure, no police officer in India has power to investigate the matter as far as it pertains to the Petitioner No.1. Moreover, the major part of the transaction in the matter is stated to have taken place in Germany and the non-petitioner No.2/Complainant herself is a Citizen of Germany. She could well have taken recourse to the law of Germany, if she were harassed or forcefully sent to India or she otherwise were maltreated. It is not understandable as to why she should have to come to India to lodge the FIR. Therefore, the above observations of the Hon'ble Apex Court in Harmanpreet Singh Ahluwalia' case (supra), are fully applicable to this case. As such, the continuance of investigation in pursuance of the impugned FIR against the Petitioner No.1 is futile and amounts to abuse of process of law. Therefore, the impugned FIR, as far as it pertains to the Petitioner No.1 is liable to be quashed.
The learned counsel for the non petitioner No.2-complainant has also referred to Section 7-A, 7-B and 7-C of the Citizenship Act, 1955 to substantiate the arguments that the complainant had a right to file the F.I.R. However, the perusal of the provisions would show that though they give some rights and privileges to the persons of Indian origin yet they do not extend the operation of Indian Criminal Law beyond that provided in Section 4 of the I.P.C. Here, almost all events if any, have taken place in Germany and both the accused/petitioner No.1 and non petitioner No.2 complainant are citizens of Germany and therefore, in view of provisions of Section 2 & 4 of the I.P.C., courts in India do not have jurisdiction to enquire into or try the acts or omission stated in 8 F.I.R.
As far as Petitioner No.2 is concerned, the allegations against her are similar to those levelled against Dr. Amla Batra. The FIR against Dr. Batra has been quashed by a judgment dated 30.06.2014 given by a coordinate Bench of this Court in S.B. Criminal Misc. Petition No.4597 of 2013. I respectfully agree with the reasoning adopted by my learned brother Justice Ahluwalia in the said judgment and find no reason to hold otherwise. Further, I would like to add that Petitioner No.2 has all along lived with the non-petitioner No.2/Complainant and her husband in Germany and still is in Germany. If she had committed any act or omission in the nature of offence against the non-petitioner No.2/Complainant, the latter being the Citizen of Germany could have taken recourse to her native law. Instead, she came to India and lodged the FIR. This clearly indicates an ulterior motive and is manifestly an abuse of the process of Indian law. Therefore, the impugned FIR, as far as it pertains to the Petitioner No.2 is also liable to be quashed.
Consequently, the present petition is accepted. The impugned FIR, along with the subsequent proceedings, qua the petitioners herein, is hereby quashed.
(Prakash Gupta),J.
Bairwa/67