Wife divorces hubby @ Australia & comes to India 2 file 498a, 506 package!. HC orders crimes abroad NOT 2 be tried without govt. permission

Couple marry at Chennai and move to Australia. Wife then moves to USA. Husband Joins her, but later Husband returns to India. Differences crop up and wife divorces husband at Australia. Wife then comes to chennai to file 498a etc etc and claims many offences since many years ago in chennai and recent offences at Australia. HC quashes part of the 498a case as crimes alleged outside India cannot be tried without central government approval. Also, the HC orders that “…alleged offence under section 506 (II) IPC said to have committed over phone by the petitioners do not prima facie constitute an offence…” !!

***********************************************************************************

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:        28-3-2012
CORAM
THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI
CRL.O.P.Nos. 25077 and Crl.R.C.No.1113 of 2009
and M.P.Nos.1 of 2009 and  1  of 2010

C. Hari Sankar             … Petitioner in Crl.O.P.No.25077 of 2009

1.C. Hari Sankar
2.C.Thulasiraman
3.C. Sukanya               .. Petitioners in Crl.R.C.No.1113 of 2009

vs

1. Deepa Lakshmi
2. State rep by
The Inspector of Police
W-12, All Women Police Station
Chennai-1          … Respondents in Crl.O.P.No.25077 of 2009

1. State rep by The Inspector of Police W-12, All Women Police Station Chennai-1

2. Deepa Lakshmi … Respondents in Crl.R.C.No.1113 of 2009 (impleaded the 2nd respondent as per the order of this Court dated 18.12.2009 in MP No.3/09)

Criminal Original Petitions filed under Section 482 Cr.P.C. for the reliefs as stated therein.

For petitioners         : Mr. V. Subbiah

For R.1 in
Crl.O.P.No.25077/09:Mr.B. Ullasavelan
&  For R.2 in Crl.R.C.No.1113/09

For R.2 in Cr.O.P     : Mr.Hasan Mohamed Jinnah
No.25077/09 &         APP
Crl.R.C.No.1113/09

COMMON ORDER

The petition in Crl.O.P.No.25077 of 2010 is filed to call for the records in C.C.No.5496 of 2008 on the file of the learned III Metropolitan Magistrate, George Town, Chennai and quash the same.

2. The Criminal Revision Petition in Crl.R.C.No.1113 of 2009 is filed to set aside the order dated 30.10.2009 passed by the learned III Metropolitan Magistrate, George Town, Chennai in MP No.5496 of 2008 in C.C.No.4471 of 2008.

3. The petitioners are the accused against whom a charge sheet has been filed by the 2nd respondent Inspector of Police, W-12, All Women Police Station, Chennai for an alleged offence punishable under Secs.498-A, 294-B, 406, 506-(II)IPC, 3,4 and 6 of Dowry Prohibition Act.

4. The necessary facts to decide the petition and the revision are as follows:

On 24.10.2004, the marriage between the petitioner and the defacto-complainant Deepalakshmi was arranged and the engagement function was performed at Andhra Club, T. Nagar, Chennai. The 1st respondent was an Australian citizen. Therefore, on 25.10.2004, the marriage was registered at the office of the Sub Registrar, George Town, Chennai. However, the marriage was solemnized as per the Hindu Rights and Customs on 22.11.2004.

5. From 22.11.2004 to 5.2.2005, the petitioner and the 1st respondent were residing at Thambu Chetty Street, Chennai in the residence of the petitioner and sometimes at Amman Koil Street, Kondithoppu in the residence of the 1st respondent. During the above said period, the petitioner met with a motor accident and sustained injury on the right leg and was operated upon. Therefore, the 1st respondent alone left for Australia on 5.2.2005. The petitioner obtained Visa subsequently and joined the 1st respondent on 6.3.2005.

6. However, the 1st respondent had gone to USA on her employment and the petitioner joined the 1st respondent only on 5.4.2006. In the first week of March 2007, the 1st respondent left USA to visit her parents in Australia and on 29.3.2007 the petitioner returned to India.

7. However, problem started between the spouses and the 1st respondent issued a lawyer’s notice stating that the marriage had irretrievably broken down w.e.f. 20.7.2007. She also visited Chennai and preferred a complaint against the petitioner and his parents on 29.2.2008. The 1st respondent applied for a divorce in Australia on 4.9.2008 and obtained an order of divorce on 18.11.2008 dissolving the marriage that took place on 25.10.2004.

8. Meanwhile, the 1st respondent gave a complaint to the 2nd respondent stating that she has been subjected for cruelty and harassment at the hands of her husband and in-laws, who were only eying her income and making more demands and thereby committed various offences as aforesaid.

9. The Inspector of Police. W-10, AWS Chennai registered a case in Cr.No.1 of 2008 which was investigated by Inspector of Police, B-4 Police station and ultimately, after investigation, the charge sheet was filed by W.12 , All Women Police station. The learned III Metropolitan Magistrate, George Town, Chennai took the case on file in CC No.5496 of 2008 and aggrieved by which, A.1 viz., the husband of the complainant has filed the present application to quash the proceedings on various grounds.

10. Pending proceedings in CC No.5496 of 2008, the petitioner and his parents filed a criminal MP No.4471 of 2008 under Sec.239 Cr.P.C seeking discharge on the ground that the proposed charges are baseless. The learned III Metropolitan Magistrate enquired the application and ultimately dismissed the application on 30.10.2009. Aggrieved by which, all the accused have filed the revision petition in Crl.R.C.1113 of 2009 on various grounds.

11. Since the issues involved in both the applications are one and the same and parties are one and the same, both the matters are taken up together and a common order is passed.

12. The point for consideration is whether the proceedings can be quashed under Sec.482 Cr.P.C and whether the trial court is correct in dismissing the discharge petition.

13. As far as the petition filed under Sec.482 Cr.P.C is concerned, the main contention of the learned counsel for the petitioner is that the petitioner did not commit any illegal act or offence either in India or in abroad. The learned counsel submitted that under Sec.188 of Cr.P.C if the alleged offences are committed in foreign countries by the citizens of India, the action shall be enquired into or tried in India only with the previous sanction of the Central Government.

14. The learned counsel further pointed out that in the present case the 2nd respondent has conducted the investigation into the alleged offences committed in America and Australia without previous sanction or permission of the Central Government. Similarly, the learned III Metropolitan Magistrate, has also taken the complaint on file on 5.9.2008 without previous permission or sanction by the Central Government.

15. The learned counsel also contended that there is no application of mind while taking cognizance of the offence by the learned Metropolitan Magistrate.

16. As far as the criminal revision is concerned, the learned counsel pointed out that the learned Magistrate failed to note that any offences relating to dowry prohibition act must be investigated by the Dowry Prohibition Officer and as per the Rules framed under the Act, the police officer competent to investigate is only the Dy.Superintendent of Police and in the present case, it was investigated by Inspector of Police, which has vitiated the case.

17. The learned Magistrate has not applied his mind while taking cognizance and there is no material to show that there are cognizable offences made out by the investigating officer.

18. The learned counsel pointed out that there is no prima facie case made out and therefore, the petitioners are entitled for discharge as the continuation of the proceedings will be an abuse of process of law.

19. To fortify his submissions, the learned counsel for the petitioner relied on the following case laws:

…CDJ 2010 SC 695 (Preeti Gupa & Another vs State of Jharkhand and another) 1997 (7) SCC 744 (Rambhai Nathabhai Gadhvi and others vs State of Gurarat) 1987 (1) SCC 476 (Ram Kumar vs State of Haryana) 2010 (2) SCC (Crl) 1385(Sidhartha Vashisht alias Manu Sharma vs State (NCT of Delhi) Unreported Judgment of th Apex Court in Crl.Appeal No.2122 of 2009(Pashaura Singh vs State of Punjab and another)

20. On the contrary, Mr.Ullasa Selvan, the learned counsel for the defacto-complaint submitted that both the petitions are not maintainable and have to be dismissed in limine. The learned counsel pointed out that the provisions under Sec.188 Cr.P.C are not applicable to the facts and circumstances of the case. The learned counsel pointed out that there are prima facie materials to show that the petitioners, who are the husband and in-laws of the defacto complainant, have demanded dowry even prior to the marriage and after the marriage, they continued to demand when the defacto complainant was in abroad and whenever she came to India.

21. The learned counsel pointed out that the defacto-complainant was subjected to cruelty and harassment by the husband not only in foreign soil but also in India and the parents of the husband who continued to live in India had also subjected the defacto-complainant for harassment and cruelty. The learned counsel pointed out that when the offences are committed in India, taking cognizance of the offence is legal in the provisions under sec.188 Cr.P.C is not attracted.

22. The learned counsel pointed out that even assuming that some of the offences were committed while the defacto-complainant was in abroad, it is not necessary to obtain prior sanction or permission from the Central Government. To strengthen his arguments, the learned counsel relied on the following case laws:

i) 1977 MLJ (cRL) 167 (M.N.A. Achar vs Dr.D.L. Rajagopal and 4 others)

ii)AIR 1985 SC 628 (Pratibha Rani vs Suraj Kumar and another)

iii)AIR 1989 SC 378 (Wazir Chand vs State of Haryana)

iv)1992 Supp (1) SCC 222 (State of Bihar and another vs P.P. Sharma IAS and another)

v) 2005(5) CTC 666 (Inspector of Police vs Kuppusamy and another)

vi)1997 (4) SCC 393 (State of Maharashtra vs Priya Sharan Maharaj and Others)

vii)2008 (2) MLJ (Crl) 669 (SC) (Didigam Bikshapathi and another vs State of A.P) Viii) 2009 (3) MLJ (Crl) 1121 (SC-NOC) (Mahesh Choudhary vs State of Rajasthan and another)

ix) 2009 (3) MLJ (Crl) 1058 (SC-NOC) (Koppisetti Subbhrao @ Subramaniam vs State of M.P)

x) 2010 Crl.L.J 592( Muhammad Rafi vs State of Kerala)

23. The admitted facts are as follows:

The marriage between the 1st petitioner and the respondent/defacto-complainant took place on 25.10.2004 and the marriage was registered at the office of the Sub Registrar, George Town, Chennai. From 22.11.2004 to 5.2.2005, the petitioner and the 1st respondent were residing at Thambu Chetty Street, Chennai in the residence of the petitioner and sometimes at Amman Koil Street, Kondithoppu in the residence of the 1st respondent. During the above said period, the petitioner met with a motor accident and sustained injury on the right leg and was operated upon. Therefore, the 1st respondent alone left for Australia on 5.2.2005. The petitioner obtained Visa subsequently and joined the 1st respondent on 6.3.2005.

24. However, the 1st respondent had gone to USA on her employment and the petitioner joined the 1st respondent only on 5.4.2006. In the first week of March 2007, the 1st respondent left USA for Australia to meet her parents and on 29.3.2007, the petitioner returned to India.

25. However, problem started between the spouses and the 1st respondent issued a lawyer’s notice stating that the marriage had irretrievably broken down w.e.f. 20.7.2007. She also visited Chennai and preferred a complaint against the petitioner and his parents on 29.2.2008. The 1st respondent applied for a divorce in Australia on 4.9.2008 and obtained an order of divorce on 18.11.2008 dissolving the marriage that took place on 25.10.2004.

26. Meanwhile, the 1st respondent gave a complaint to the 2nd respondent stating that she has been subjected to cruelty and harassment at the hands of her husband and in-laws, who were only bothering about her income and making more demands and thereby committed various offences as aforesaid.

27. However, the defacto-complainant has filed a divorce petition and has obtained divorce in Australia and she has also given a complaint which is investigated and charge sheet filed.

28. The crux of the charge sheet is as follows:

i) At the time of betrothal on 24.10.2004, the petitioner and his parents demanded a dowry of 100 sovereigns of gold jewels, 5 kgs of silver and 15 sovereigns of gold for bridegroom, Rado watch and cash of Rs.50,000/- and all the expenses of the betrothal should be borne out by the parents of the bride.

The 3rd petitioner, the mother-in-law of the defacto-complainant told the parents of the bride that if the demands were not fulfilled, the marriage will be stopped. Therefore, they fulfilled all the demands except for a Rado watch, a Pierre Carden watch at the cost of Rs.10,000/- was given.

ii) Between 22.11.2004 and 5.2.2005 the 1st petitioner and the defacto-complainant lived together. In January 2005, the defacto-complainant was compelled to pay the monthly phone bills including the internet expenses.

Iii) In February 2005, the defacto-complainant left for Australia. Her father Elleswara Rao spent all expenses for the 1st petitioner’s visa amounting to Rs.1,50,000/- approximately. The 1st petitioner also demanded a sum of Rs.20,000/- from the defacto-complainant for his personal expenses which was paid through City Bank Account.

(iv) From 16.3.2005 to 5.4.2006, the 1st petitioner and the defacto-complainant lived in Australia. In March 2005, the 2nd petitioner, i.e. the father-in-law of the defacto-complainant called her over phone from Chennai and demanded to buy a Car for the 1st petitioner. Australian dollars 20000/- was paid from the defacto-complainant’s savings account for purchase of car.

(v) In May 2005, the 1st petitioner demanded to provide him money to undergo a refresher course which costs Australian dollar 785 which was paid by her. She was forced to spend Australian dollar 8000 to join another computer course.

(vi) The 1st petitioner subjected the defacto-complainant to severe harassment both mentally and physically.

(vii) From 5.4.2006 to March 2007, the defacto-complainant and the 1st petitioner lived in America. In April 2006, the 1st petitioner assaulted the complainant with a dinner plate. In August 2006, in a friend’s place, the 1st petitioner poked with his fingers in the right eye of the defacto-complainant which caused permanent injury.

(viii) on 17.11.2006, when they were travelling in a car, the 1st petitioner attempted to strangulate the defacto-complainant. In December 2006, the 1st petitioner demanded to buy a car for his use and the defacto-complainant incurred an expense of US dollars 7000. In January 2007, the 1st petitioner demanded the defacto-complainant to provide US dollars 1350 to join a consultancy course in US. In January 2007, the father-in-law demanded Rs.10 lakhs for buying Tamil Nadu Housing Board property in the name of the 1st petitioner and when she refused she was subjected to cruelty by the petitioners. The 1st petitioner took away the laptop of the defacto-complainant, worth about US dollars 1300, her social security document and medical records and withdrew US dollars 800 and did shopping using credit card and returned to India without even informing her.

1.the defacto-complainant tried to contact her husband. The petitioners abused her over phone. On 15.2.2008 the relatives of the defacto-complainant went to the house of the petitioners for reconciliation. Her in-laws demanded that they should transfer the properties in the name of her husband.

The above acts of cruelty and demand of dowry will amount to the above said various offences.

29. Out of the above said acts of cruelty and demand of dowry are alleged to have taken place in the foreign soil during the period from 16.3.2005 to 5.4.2006, when the couple were in Australia and from 5.4.2006 to March 2007 when they were in America.

30. The learned counsel for the petitioner submitted that under Sec.188 of Cr.P.C, to investigate and prosecute the offences which are alleged to have taken place in the foreign soil, the sanction of the Central Government is mandatory. Sec.188 of Cr.P.C 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

31. The learned counsel for the petitioner relied on a decision reported in 1995 Crl.L.J 2825 (Samarudeen vs Assistant Director of Enforcement, Trivandrum and others) wherein the learned single Judge of Kerala High Court considered two decisions of the Kerala High Court which held though the offence was committed outside India as the offender is the citizen of India and now he is found local jurisdiction of Kerala, the local police has jurisdiction to investigate the case and deferred with holding:

16. Considering the fact that this Division Bench decision dealt with the matter without referring to various other provisions of the Cr.P.C as pointed out supra. I am of the view that this decision does not have the effect of binding precedent; hence I steer clear of. It looks as if the learned Judges were more influenced by the law propounded by a learned Single Judge of this Court in Remla v S.P of Police, 1993 (1) KLT 412: (1993 Crl.LJ 1098) and they did not bother to examine the matter in proper perspective and in depth. May be the relevance of Chapter 12 Cr.P.C and its provisions were not brought to the notice of their Lordships. With utmost respect to the leraned Judges who dealt with the decisions in Remla v S.P of Police , (1993) 1 KLT 412:(1993 Crl.L.J 1098) and Muhammed v State of Kerala, (1994) 1 KLT 464, I am of the view that they are not binding precedents, and they are not applicable to the facts of the present case. I am conscious of the fact that Singh Judge of this Court is bound by a decision of the Division Bench decision as a decision rendered without reference to all the relevant provisions of the statute does not have the legal effect of a binding precedent.

17. In view of the provisions of Chapter 12 and the language of Section 188 Cr.P.C it necessarily follows that even for the purpose of investigation even if it is deemed to come within the ambit of the phrase ‘dealt with’ used in Section 188, it requires previous sanction of the Central Government. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

18. It is significant to remember that Section 3 IPC deals with any person liable by any Indian law to be tried for an offence committed beyond India. It does into deal with the power of the Indian police to investigate a crime committed outside India. It should also be remembered that Section 3 and 4 of the IPC are provisions of the substantive law, and they have nothing to do with the procedural law. In my considered opinion the statement of law in the decision in Remla’s case (1993) 1 KLT 412: (1993 Crl.L.J 1098) and in Muhammed’s case. (1994) 1 KLT 464 is not a correct statement of law. The local police has no jurisdiction to investigate the offence alleged to have been committed by the fourth respondent at Damam in Saudi Arabia.

32. The learned counsel for the petitioner also relied on Crimes (HC) 3 1988 (600) where another learned Single Judge of Kerala High Court has dealt with sec.188 of Cr.P.C for an offence of cheating and held as follows:

Offences committed outside India do not fall within the turret of lal limits of any court in India. That means such offences are not to be investigated by the police either S.188 of the Code is an exception to this rule. For that exception to come into operation the provisions contained in that section must be strictly complied with. The courts power to inquire into or try an offence committed outside India as per that section depends on previous sanction of the Central Government. The consequences of that is the police officers’ power to investigate an offence committed outside India would also depend on the previous sanction of the Central Government under S.156(3) the Magistrate can order investigation of a case which the Court can inquire into and try under Chapter XIII. If the Magistrate has no territorial jurisdiction over the place where the offence was committed then the police cannot also investigate the offence in pursuance to an order under S.156(3) of the Code. In the instant case, the petitioner has nowhere stated in the complaint that the Central Government has accorded sanction for the inquiry into or trial of the offence alleged in the complaint. In this circumstance the offence which is alleged to have been committed by the petitioner outside the territorial limits of India could not have been taken cognizance of by the court below or directed to be investigated by the police. The learned Magistrate acted without jurisdiction in ordering the police to inquire into the complaint Under S.156 of the code.

33. He also relied on a decision reported in 2005 Crl.L.J.3399 (Suren Orang vs State of Assam), wherein 188 Cr.P. C was discussed and the court held

23. Therefore, for the foregoing reasons, since the procedure that is being adopted is totally inconsistent and contrary to the mandatory provisions i.e., S.188 of the Cr.P.C., the writ petition is liable to be allowed.

34. The learned counsel for the petitioner also submitted before taking cognizance of the offence, the learned Magistrate is bound to ascertain whether there is a prima facie case against the accused. The learned counsel pointed out that taking cogizance is not a formal action of taking the case on file, but depends upon the facts and circumstances of each case and relied on 2008 1 SCC (Crl) 471 (Chief Enforcement Officer s Videocon International Ltd) wherein the Apexc Court has held as follows:

20. Taking Cognizance does not involve any formal action of any kind. If occurs as soon as a Magistrate applies his mind to the suspected criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance.

35. For the same preposition he also relied on the decisions reported in 1977 4 SCC 459 (Tula Ram and Others vs Kishore Singh), 2009 (7) SCC 495 (Devendra and others vs State of Uttar Pradesh and another), 2010 CIJ 63 (Panchabhai Popotbhai Butani vs State of Mah and Ohters).

36. The learned counsel relied on 2009 7 SCC 712 (Harmanpreet Singh Ahluwalia and others vs State of Pujab and others) wherein the Apex Court has held as follows:

25. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied:
i) deception of a person either by making a false or misleading representation or by other action or omission.
ii) fraudulently or dishonestly inducing any person to deliver any property; or
iii) to consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.

For the purpose of constituting an offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making initial promise being absent, no offence under Section 420 of the Penal Code can be said to have been made out. We may reiterate that none of the ingredients of cheating as defined in Section 415 of the penal code is existence of an intention (sic a fraudulent or dishonest intention at the time) of making initial promise or existence thereof from the very beginning of formation of contract.

37. On the contrary, the learned counsel appearing for the respondent relied on a decision reported in 1993 (3) SCC 609 (Ajay Agarwal vs Union of India and Others) wherein the Apex Court has held obtaining the previous sanction from the Central Government is not a condition precedent for taking cognizance of an offence. The learned counsel also relied on an unreported judgment of a Full Bench Judgment of the Apex Court in S.L.P.crl.7640 of 2008, an order dated 2.9.2011,the Apex court has dealt with 188 Cr.P.C and also referred 1993 (3) SCC 609 and held as follows:

para 7 Reliance was placed on the decision of this court in ajay agarwal vs union of india reported in 1993 3 SCC 609,wherein it had been held obtaining the previous sanction of the central government was not a condition precedent for taking cognizance of offences,since sanction could be obtained before trail begins.

The question which we had been called upon to consider in this case is whether in respect of series of offences arising out of the same transaction some of which were commited within india and some outside india,such offences could be tried together without the previous sanction of the central government as envisaged in the proviso to sec-188 of code of criminal procedure.

The supreme court further held, para 10.

Although the decesion in Ajay Aggarwal’s case (supra) was rendered in the background conspiracy alleged to have been hatched by the accused, the ratio of the decision is a fetter on the powers of the investigating authority to inquire into or try any offence mentioned in the earlier part of the section except with the previous sanction of the Central Government. The fetters, however, are imposed only when the stage of trial is reached, which clearly indicates that no sanction in terms of Sec.188 is required till commencement of trial. It is only after the decision to try the offender in India was felt necessary that the previous sanction of the Central Government would be required before the trial could commence.

11. Accordingly, and to the stage of taking cognizance, no previous sanction would be required from the Central Government in terms of the proviso to Sec.188 of Code of Criminal Procedure, However, the trial could not proceed beyond the cognizance stage without the previous sanction of the Central Government. The Magistrate is therefore, free to proceed against the accused in respect of offences having been committed in India and to complete the trial and pass judgment therein without being inhibited by the other alleged offences for which sanction would be required

38. Heard both sides and perused the materials available on record.

39. This court is bound by the decision of the Full Bench of the Apex Court. The Hon’ble Supreme Court has held that no sanction in terms of Sec.188 is required till commencement of the trial. It is only after the decision to try the offender in India, the previous sanction of the Central government would be required before the commencement of the trial. In the case on hand also the question before this court is whether in respect of series of offences arising out of the same transaction some of which were committed within India and some outside India, such offences could be tried together without the previous sanction of the central government as envisaged in the proviso to sec-188 of code of criminal procedure.

40. Therefore, upto the stage of taking cognizance no previous sanction would be required from Central Government. However, the trial cannot be proceeded further without the previous sanction of the Central Government. The Apex Court has also further held that the learned Magistrate is therefore free to proceed against the accused in respect of offences having been committed in India and passed the judgment. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

41. Therefore the law is now well settled that upto the stage of taking cognizance the previous sanction under Sec.188 Cr.P.C is not required, but if some of the offences are committed in foreign soil the trial cannot be commenced without the prior sanction.

42. However, if the offence involves both those committed in foreign soil and also within the territorial jurisdiction of the Magistrate in India, the trial can be proceeded for the offences committed in India and trial can not be proceeded for the offences committed out side India, without sanction from Central Government.

43. As stated earlier, the charge sheet has been laid for an offence under Secs.498-A, 294-b, 406, 506(ii) IPC and Sec.3,4 and 6 of Dowry Prohibition Act. It is alleged that the betrothal took place on 24.10.2004 and there was a demand of dowry of 100 sovereigns of gold jewels, 5 kgs of silver and 15 sovereigns to bridegroom, Rado watch and cash of Rs.50,000/-. It is also alleged that on 22.11.2004 when the marriage took place at T.Nagar in the bride’s room the 1st respondent and her parents gave 100 sovereigns of gold, 5 kgs of silver and 15 sovereigns of jewels to bride groom and Pierre Carden watch, worth Rs.10,000/- and Rs.10,000/- in cash to the 3 accused in the presence of Malluppu Sukumar and Jayaraman. According to the prosecution, this constitute an offence under Sec.3 and 4 of Dowry Prohibition Act, which is alleged to have been committed in India.

44. From 22.11.2004 to 5.2.2005 the defacto-complainant/1st respondent and the 1st petitioner were living at Chennai and the 1st petitioner compelled her to pay the Internet expenses and phone bill, which in my considered view, will not either amount to cruelty or demand of dowry.

45. It is further alleged that the 1st respondent left for Australia in February 2005 as she had been employed at Australia and for the 1st petitioner/husband, the father of the defacto-complainant spent a sum of Rs.1,50,000/- for visa expenses and a sum of Rs.20,000/- was paid towards personal expenses. In my considered view, this will not amount to demand or payment of dowry as it was the understanding between the spouse to live together at Australia. Spending money for visa expenses without demand can never be termed as Dowry.

46. As illustrated above, the period from 16.3.2005 to 5.4.2006 the couple lived in Australia and certain acts of cruelty and demand of money are alleged to have been committed. Similarly, from 5.4.2006 to March 2007, the spouse lived in America. Again certain acts of cruelty and demand of dowry are alleged to have been committed.

47. During these two periods, it is alleged that offences were committed under Sec.498-A and 406 IPC and Sec.3,4 and 6 of Dowry Prohibition Act. It is also alleged that when the spouses were in America, the 1st petitioner attempted to strangulate the defacto-complainant and in January 2007 the petitioners 2 and 3, who are the in-laws, demanded Rs.10 lakhs to purchase a property and threatened with dire consequences and thereby all the petitioners committed an offence punishable under Sec.506(i) IPC.

48. In the celebrated case of State of Haryana and Others vs Bhajanlal and others, reported in 1992 Supp (1) SCC 335 , the Apex Court has clearly laid down the guidelines, where the inherent powers under Sec.482 of the Court could be exercised.

“102. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

Therefore the alleged offence under section 506 (II) IPC said to have committed over phone by the petitioners do not prima facie constitute and offence.

49. The period between 16.3.2005 to 5.4.2006 and 5.4.2006 to March 2007 the offences are said to have taken place in foreign soil.

50. It is alleged that on 15.2.2008 the 1st respondent and her parents went to the petitioners’ house at Thambu Chetty Street, Chennai and the petitioners 2 and 3 abused them and pushed them out of the house and therefore, the petitioners 2 and 3 have committed an offence under Sec.294-b IPC.

51. Therefore, the initial demand and payment of dowry on 22.11.2004 at T. Nagar, Chennai in the presence of two witnesses if prima face taken to be true, is an offence committed by the petitioners for an offence under Secs.3 and 4 of Dowry Prohibition Act and the alleged offence committed on 15.2.2008 by the petitioners 2 and 3 at Thambu Chetty Street, Chennai is an alleged offence under Secs.294-b IPC.

52. Following the principle laid down by the Full Bench of the Apex Court (cited supra), the Magistrate is therefore free only to proceed against the accused in respect of the above said two offences alleged to have been committed in India and the Magistrate cannot proceed with the trial without the previous sanction of the Central Government, against the offences said to have been committed in foreign soil.

53. Therefore, the entire proceedings in C.C.No.5496 of 2008 need not be quashed. The learned Magistrate may proceed with the trial relating to the offences alleged to have been committed in India for an offence under Sec.3 and 4 of Dowry Prohibition Act against the petitioners and for an offence under Sec.294-b against the petitioners 2 and 3.

54. However, in respect of the offences alleged to have been committed outside India the learned Magistrate shall not proceed with the trial without the sanction of the Central Government as envisaged in the proviso to Sec.188 Cr.P.C.

55. With the above observations, the petition in Crl.O.P.No.25077 of 2009 filed under Sec.482 Cr.P.C and Criminal Revision Petition in Crl.R.C.No.1113 of 2009 are disposed of with a direction that the learned III Metropolitan Magistrate, George Town, Chennai may proceed with the trial relating to the offences alleged to have been committed in India against the petitioners as illustrated above, and in respect of the offences alleged to have been committed outside India the learned Magistrate shall not proceed with the trial without the sanction of the Central Government as envisaged in the proviso to Sec.188 Cr.P.C.

28-03-2012

G.M. AKBAR ALI,J.,

sr

Index:yes
website:yes

To

State rep by The Inspector of Police
W-12, All Women Police Station
Chennai-1

State rep by The Inspector of Police
W-12, All Women Police Station
Chennai-1

sr

Pre-Delivery Common Judgment in Crl.O.P.Nos.25077 and Crl.R.C.No.1113 of 2009 28-03-2012

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
******************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE
******************************************************************

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s