Avoid arrest, Do mediation in 498a etc says Govt. However police add Sec 307 IPC & get Arrest warrant. Husband co run around courts !!


Abla claims assaults, attempt 2 murder etc while CCTV footage normal woman leaving home. Investigating agency adds Sec 307 IPC to the complaint and obtains Arrest warrant !! Still NO quash by P&H HC!

The husband’s side argues that the woman walked out of their apartment without any injury marks and as a normal woman and there is CCTV footage confirming the same …

“….24. Learned Senior counsel for the petitioners has also filed CCTV footage dated 02.09.2013 of lobby of the house of petitioners, showing the complainant leaving the house (alongwith probably her daughter) in the early morning on 02.09.2013, which would rule out indication of any serious injury. It is further contended that while going to board a flight the complainant also got her medical examination in Jaslok Hospital, Mumbai. Learned counsel placed on record medical report showing history of fall in the bathroom resulting in pain over left shoulder including neck and pain over left wrist including arm. This record, however, shows that X-ray of 3 injuries was advised. …..”

However the abla naari wife says

“….11. Further details of the incident dated 02.09.2013 as contained in this representation are that when the complainant confronted her husband in front of other family members with the clippings/photographs evidencing relationship of petitioner No. 1 with that lady, petitioner No. 1 slapped her. She was also physically assaulted by other petitioners and she fell on the ground. The mother-in-law brought a matchstick and told her husband to set ablaze the complainant…..”

The Government has issued necessary instructions to avoid arrest and do counselling in case of matrimonial disputes, 498a cases etc, however the investigation agency seems to have obtained arrest warrants! The relevant portions are quoted below

However the investigating agency has added Section 307 (attempt to murder) to the case and obtained arrest warrants !!

“…(c) In cases of matrimonial disputes, the first recourse should be to affect conciliation and mediation between the warring spouses and their families and recourse to filing charges U/s 498A IPC may be resorted to in cases where such conciliation fails and where there appears a prima facie case under Section 498A and other laws. The Counselling mechanisms envisaged under PWDV Act, 2005 should be instituted by State Government and any counselling of parties should be done only by professionally qualified counsellors and not by the police. The police may consider empanelling professional counsellors with the CAW Cell….”

The advocate for the husband tries to covert this as a bail please but the court is NOT willing to do so


IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CRM-M-32262 of 2013 (O&M)

Date of Decision : 05.10.2013

Parneet Singh Swani and others ……..Petitioners

Versus

State of Punjab and another …… Respondents

CORAM: HON’BLE MR. JUSTICE R.P. NAGRATH

Present:

Mr. K.T.S. Tulsi, Senior Advocate with Mr. Gaurav Chopra and Ms. Namrata Jayakar, Advocates for the petitioners.

Mr. Mikhail Kad, AAG, Punjab for respondent No. 1.

Mr. R.S. Rai, Senior Advocate with Mr. J.S. Bedi, Advocate, for respondent No. 2.

R.P. NAGRATH, J.

This petition has been filed under Section 482 Cr.P.C. for quashing of FIR No. 115 dated 06.09.2013 (Annexure P-1) for offences under Sections 406, 498-A, 323, 324, 506, 307 and 120-B of Indian Penal Code (IPC) read with Sections 3 and 4 of the Dowry Prohibition Act, registered at Police Station Balongi, District SAS Nagar Mohali. Prayer is made for restraining respondent No. 1- State from taking/adopting any coercive measures including arrest of the petitioners in pursuance to the registration of FIR.

2. Reply to the petition has been filed by respondent No. 2 (hereinafter referred to as “complainant”). Learned counsel for the parties and the State counsel have been heard.

3. I am of the view that instant FIR was registered on 06.09.2013 and seeking to quash the FIR at the threshold may be permissible only on the ground of inherent lack of territorial jurisdiction of the Police of district Mohali to investigate the case.

4. Even such a challenge would be a remote possibility when there are seriously disputed facts. Otherwise the principle of law on the subject is quite well settled, as reiterated by a Division Bench of this Court in Criminal Appeal No. 28-DBA of 1991, State of Punjab vs. Pritam Chand and others, decided on 25.01.2013 wherein it was held as thus:-

“(i) xx xx xx xx xx

(ii) A complaint on the basis of which FIR has been registered or a
criminal complaint under Section 200 Cr.P.C., cannot be quashed at
the threshold by the High Court in exercise of its inherent or
constitutional jurisdiction nor are the complainant or the
investigating agency, as the case may be, expected to produce the
relevant material at the initial stage for consideration of a court
of competent jurisdiction for the formation of its opinion whether or
not a prima-facie case as per the ingredients descripted in different
provisions of the Indian Penal Code or any other Penal Law, is made
out.

5. In State of Karnataka and another Vs. Pastor P. Raju, (2006) 6 SCC 728, Hon’ble Supreme Court noticed that no report under Section 173 Cr.PC. had been submitted by the Incharge of the Police Station concerned to the Magistrate empowered to take cognizance of the offence. It was held by the Hon’ble Supreme Court that the inherent powers under Section 482 Cr.P.C. cannot be exercised by the High Court to interfere with the statutory power of the Police to conduct investigation in a cognizable offence. The legal position that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the of the FIR till the submission of the report by the officer in charge of Police Station in court under Section 173(2) Cr.P.C. this field being exclusively reserved for the investigating agency.

6. It was similarly held by Hon’ble Supreme Court in Savita Vs. State of Rajasthan and others, 2005 (13) SCC 338 held that quashing of FIR for offences under Section 498-A and 406 IPC where investigation had not yet started is too premature a stage for the High Court to give a finding and the investigating agency had no occasion to find out whether there was material to file a charge-sheet or not.

7. The version stated in the FIR briefly is that marriage of petitioner No. 1 and the complainant was solemnized on 18.10.2003 and a female child was born from the wedlock on 29.10.2004. After the girl child was born, in-laws of complainant started troubling her on the ground that sufficient dowry was not given. The complainant has stated about payment of different amounts on various occasions to petitioner No. 1 and family members. It is also stated that because of the constant harassment she came back to her parents alongwith the child in 2009 and stayed here till 2010. She was taken back to Mumbai only after paying more cash amount and getting assurances to treat her nicely.

8. The recent incident which led to the filing of FIR took place on 02.09.2013 in the early morning at residential house of petitioners in Mumbai. It is stated that all the petitioners gave beating to complainant and demanded an amount of ` 2 crores as they have to start a new factory for petitioner No. 1. Petitioner No. 1 picked up a knife and petitioner Nos. 3 and 4, tried to strangulate her. It is also stated that petitioner No. 2 caught hold of complainant from her legs and petitioner No. 1 tried to stab her in the head but she saved this attack by raising her arm causing cut on her biceps. She agreed to bring money and was thus spared. She narrated the incident to her father on phone who told her to immediately come to Mohali. She took a flight and reached Mohali at 4.30 p.m. and was admitted in the hospital on the same evening where she was medically examined. As per medicolegal examination 6 injures were found on the person of complainant.

9. On this statement of complainant recorded on 03.09.2013, FIR was registered on 06.09.2013 for offences under Sections 406, 498-A, 323, 324, 506 and 120-B IPC read with Section 3 and 4 Dowry Prohibition Act, 1961. Learned State counsel submitted that offences under Section 307 IPC, Sections 3 and 4 of Dowry Prohibition Act were added on 09.09.2013 on the basis of supplementary statement made by the complainant. The complainant has also attached supplementary representation (Annexure R-2/5) made to the Police on 10.09.2013.

10. In the supplementary representation, additional grievance of complainant is that in the year 2009 the complainant came to know about illicit relation of petitioner No. 1 with the wife of his best friend. Petitioner No. 1 started avoiding complainant and used to stay out with that lady on one pretext or the other. It was also found that petitioner No. 1 had been travelling with said lady friend to Rajasthan and other places on the pretext of attending his office in Rajasthan. The complainant disclosed this fact to her parents and also complained to her in-laws. It is now stated that petitioner No. 1 threatened to eliminate her and she came to her parents at Mohali on 11.01.2009. The complainant stayed with her parents for 10 months. In October, 2009 a panchayat was convened wherein petitioner No. 1 assured to discontinue illicit affair with that lady.

11. Further details of the incident dated 02.09.2013 as contained in this representation are that when the complainant confronted her husband in front of other family members with the clippings/photographs evidencing relationship of petitioner No. 1 with that lady, petitioner No. 1 slapped her. She was also physically assaulted by other petitioners and she fell on the ground. The mother-in-law brought a matchstick and told her husband to set ablaze the complainant.

12. Mr. K.T.S. Tulsi, learned Senior Advocate vehemently contended that the version put forth by complainant is highly improbable. The learned counsel submits that there cannot be substance in the story of demand of dowry as admittedly petitioners have flourishing business which fact is admitted in paragraph No. 14 of representation dated 10.09.2013 (Annexure R-2/5). The marital discord between husband and wife has been blown out of proportion just to humiliate the entire family. It is further contended that the incidents reported in the FIR allegedly took place in Mumbai and therefore, the investigation of FIR could not be carried on by the Police in Mohali, Punjab.

13. From the facts of this case it would be difficult to accept the above contention as from contents of the FIR, a part of cause of action at least arises in District Mohali, Punjab. It is admitted case as stated in paragraph No. 3 of the petition that marriage of the complainant and petitioner No. 1 was solemnized at Mohali on 18.10.2003. So with regard to allegations of entrustment of the dowry articles would seemingly arise in district Mohali. This is otherwise basically a question which has to be determined after investigation is over. The case law on the subject has been referred by both the parties.

14. Learned Senior Advocate for the complainant referred to Sunita Kumari Kashyap v. State of Bihar and another, AIR 2011 (Supreme Court) 1674. It was held by Hon’ble Supreme Court 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.”

15. The facts of Sunita Kumari Kashyap’s case (supra) were that on 17.10.2007, Sunita Kumari Kashyap-the Appellant made a complaint to the Inspector In-charge, Magadh Medical College Police Station, Gaya. In the complaint, the Appellant, after narrating her marriage with Sanjay Kumar Saini-Respondent on 16.04.2000 stated that what had happened immediately after marriage at the instance of her husband and his family members’ ill-treatment, torture and finally complained that she was taken out of the matrimonial home at Ranchi and sent to her parental home at Gaya with the threat that unless she gets her father’s house in the name of her husband, she has to stay at her parental house forever. In the said complaint, she also asserted that her husband pressurized her to get her father’s house in his name and when she denied she was beaten by her husband. It was also asserted that after keeping her entire jewellery and articles, on 24.12.2006, her husband brought her at Gaya and left her there warning that till his demands are met, she has to stay at Gaya and if she tries to come back without meeting those demands she will be killed. It was also stated that from that date till the date of complaint, her in-laws never enquired about her. Even then she called them but they never talked to her. It was then found that there was ill-treatment and cruelty at the hands of her husband and his family members at the matrimonial home at Ranchi and because of their actions and threat she was forcibly taken to her parental home at Gaya where she initiated the criminal proceedings against them for offences punishable under Sections 498A and 406/34 IPC and Sections 3 and 4 of the Dowry Prohibition Act.

16. The judgments on the subject referred on behalf of petitioners are Bhura Ram and others vs. State of Rajasthan and another, (2008) 11 SCC 103 and Y. Abraham Ajith and others vs. Inspector of Police, Chennai and others, (2004) 8 SCC 100. Both these cases are not helpful as the petitions for quashing for want of territorial jurisdiction were filed after charge- sheet was presented by the Police and not at the threshold.

17. In Bhura Ram’s case (supra) the facts were that the marriage was solemnized in Village Ramsara, Tehsil Abohar, District Ferozepur and right from the marriage, the complainant and her husband were residing in Punjab. Thereafter, the complainant started residing in Sri Ganganagar, Rajasthan with her maternal relations. The facts of that case, therefore, disclosed that the complainant left the place where she was residing with her husband and in-laws and came to the city of Sri Ganganagar and in those circumstances it was held that no part of cause of action arose in Rajasthan.

18. In Y. Abraham Ajith’s case (supra) the complaint itself disclosed that after 15.4.1997, the respondent left Nagercoil and came to Chennai and was staying there. All the allegations which were per se without any basis took place according to the complainant at Nagercoil, and therefore, the Courts at Chennai did not have the jurisdiction to deal with the matter. It was further submitted that earlier a complaint was lodged by the complainant before the concerned police officials having jurisdiction; but after inquiry no action was deemed necessary. It was found that there was not even a whisper of allegation of any demand of dowry or commission of act constituting an offence much less at Chennai. It was held that being so, the logic of Section 178(c) of the Code relating to continuance of the offences cannot be applied. Therefore, in present case all these facts would be considered when investigation is complete and charge-sheet is prepared.

19. It is also a matter of record that investigating agency obtained arrest warrants of petitioners from Judicial Magistrate Kharar District Mohali. The petitioners were arrested by the Police and produced before Additional Chief Metropolitan Magistrate, Mumbai at about 1.25 p.m. on 12.09.2013. In the meanwhile, the petitioners applied for transit bail under Section 439 Cr.P.C. read with Section 482 Cr.P.C. before Bombay High Court. In their application (Annexure R-2/2) and as observed by Bombay High Court in the order dated 12.09.2013 (Annexure P-5/R-2/3) that the petitioners represented that the marriage was solemnized in Mumbai in October, 2003. The Bombay High Court, thus, observed that the allegations leveled against the petitioners would constitute offences which must have taken place in Mumbai and therefore, the Police Station at Balongi may have jurisdiction to register the offence but not to investigate the same, since the offences have allegedly taken place at Mumbai. Mr. Gaurav Chopra, Advocate appearing for the petitioners urged that the marriage was in fact registered in the year 2005 at Mumbai for which learned counsel filed additional document. But the fact remains that it was represented to the Bombay High Court that marriage was solemnized in Mumbai whereas it is admitted fact now, that the marriage was performed at Mohali.

20. However, in the application for grant of anticipatory bail under Section 438 Cr.P.C. filed before the Sessions Court at Mohali, it was stated by petitioners that marriage was solemnized in Chandigarh on 18.10.2003 though that application was dismissed on 23.09.2013 vide order (Annexure P-6) holding that it was not maintainable as only the petition for regular bail under Section 437 or 439 Cr.P.C. could lie. Copy of application under Section 438 Cr.P.C. has been placed on record by learned Senior Advocate for the complainant. However, in the application under Section 439 Cr.P.C. filed lateron, it was admitted that the marriage was performed in Mohali on 18.10.2003.

21. Mr. Tulsi, learned Senior Advocate for the petitioners referred to Geeta Mehrotra and another vs. State of Uttar Pradesh and another, (2012) 10 SCC 741, wherein it was held as under:-

“21. It would be relevant at this stage to take note of an apt
observation of this Court recorded in G.V. Rao v. L.H.V. Prasad and
Ors.(2000) 3 SCC 693 wherein also in a matrimonial dispute, this
Court had held that the High Court should have quashed the complaint
arising out of a matrimonial dispute wherein all family members had
been roped into the matrimonial litigation which was quashed and set
aside.

Their Lordships observed therein with which we entirely agree that:

12. There has been an outburst of matrimonial dispute in recent
times. Marriage is a sacred ceremony, main purpose of which is to
enable the young couple to settle down in life and live peacefully.
But little matrimonial skirmishes suddenly erupt which often assume
serious proportions resulting in heinous crimes in which elders of
the family are also involved with the result that those who could
have counselled and brought about rapprochement are rendered helpless
on their being arrayed as accused in the criminal case. There are
many reasons which need not be mentioned here for not encouraging
matrimonial litigation so that the parties may ponder over their
defaults and terminate the disputes amicably by mutual agreement
instead of fighting it out in a court of law where it takes years and
years to conclude and in that process the parties lose their “young”
days in chasing their cases in different courts.

The view taken by the judges in that matter was that the courts should not encourage such disputes.

22. That was a case where FIR was registered under Section 498-A IPC and Sections 3 and 4 of Dowry Prohibition Act at Mahila Thana Daraganj, Allahabad. It was alleged in the said FIR that marriage was solemnized at a place in Faridabad and the parties stayed together in Chennai and other places and under these circumstances it was held that the Courts at Allahabad did not have the territorial jurisdiction. In the present case it is admitted that the marriage was solemnized at Mohali though it was projected in different manner before the Bombay High Court.

23. The other argument put forth by learned Senior Counsel for the petitioners pertains to offence under Section 307 IPC and placed on record the photostat copy of medicolegal report (MLR) which was conducted on 02.09.2013. Learned counsel submits that from bare perusal with naked eye, injury No. 6 which has been pressed upon to attract Section 307 IPC is with different handwriting and ink. It is further suggested that since the signatures of the doctor were already appearing on the MLR that the sentence for this injury could not be completed despite there being a vast space beyond the word ‘temporal’ but the last word ‘area’ has been written in the second line of this injury. If it is really so, that would be a very serious matter but no observation or finding should be given at this stage especially when it was contended by Mr. Gaurav Chopra, Advocate that the petitioners have since been called to appear before the investigating agency on 04.10.2013 for listening to their version.

24. Learned Senior counsel for the petitioners has also filed CCTV footage dated 02.09.2013 of lobby of the house of petitioners, showing the complainant leaving the house (alongwith probably her daughter) in the early morning on 02.09.2013, which would rule out indication of any serious injury. It is further contended that while going to board a flight the complainant also got her medical examination in Jaslok Hospital, Mumbai. Learned counsel placed on record medical report showing history of fall in the bathroom resulting in pain over left shoulder including neck and pain over left wrist including arm. This record, however, shows that X-ray of 3 injuries was advised. These are otherwise the questions which cannot be examined at this stage and no opinion should be expressed. The contention that the petitioners have huge business empire and hold assets and, thus, the question of demand of dowry is highly improbable, are the issues which do not require detailed discussion at this stage. There are otherwise the allegations and counter allegations which are seriously contested issues of fact.

25. Petitioner No. 1 had also moved a complaint to the Senior Inspector General of Police, Mumbai on 29.08.2013 (Annexure P-2) making several allegations against his wife. What happened to the said representation/complaint is still a moot question.

26. After obtaining transit bail from Bombay High Court, the petitioners filed application for pre-arrest bail under Section 438 Cr.P.C. before the Additional Sessions Judge, Mohali, which was declined vide order dated 23.09.2013 (Annexure P-6).

27. In view of the aforesaid facts, the remedy for the petitioners was to approach this Court for pre-arrest bail and not to seek quashing of FIR at the threshold. Learned Senior counsel for the complainant has pointed out that the petitioners instead moved for regular bail before Sessions Court under Section 439 Cr.P.C. The application of petitioners No. 2 to 4 was allowed whereas that of petitioner No. 1 was dismissed on 01.10.2013. Copy of order dated 01.10.2013 has been placed on record by the learned counsel. It is contended that the petitioners were supposed to submit to the jurisdiction of the Magistrate and after conclusion of remand proceedings, if any, that such an order could be passed. Learned counsel also urged that suo motu cognizance may be taken by this Court to examine as to how such an order could be passed under Section 439 Cr.P.C. It was, however, submitted that a separate petition would soon be filed for the said prayer. For that matter the complainant could take appropriate recourse.

28. Normally the arrest warrants in offences involving matrimonial disputes are not applied at first instance. Government of Punjab circulated instructions dated 20.10.2009 issued by Government of India, Department of Home Affairs, vide memo No. 21/66/2009-1H6/2339 dated 18.11.2009 to the State Police for curtailing misuse of provisions of Section 498-A, Indian Penal Code so as to lay to rest the allegation of misuse of this provision. The relevant extract of the aforesaid instructions is reproduced as under:-

(a) & (b) xx xx xx xx

(c) In cases of matrimonial disputes, the first recourse should be
to affect conciliation and mediation between the warring spouses and
their families and recourse to filing charges U/s 498A IPC may be
resorted to in cases where such conciliation fails and where there
appears a prima facie case under Section 498A and other laws. The
Counselling mechanisms envisaged under PWDV Act, 2005 should be
instituted by State Government and any counselling of parties should
be done only by professionally qualified counsellors and not by the
police. The police may consider empanelling professional counsellors
with the CAW Cell.

The aforesaid instructions were also forwarded to all the Senior Superintendent of Police in the State of Punjab vide Endst. No. 5241-65 dated 31.12.2009. It seems that in the present case the Police obtained arrest warrants of the petitioners from Area Magistrate of District Mohali as the offence involved was also under Section 307 IPC which was not there in the original FIR.

29. There was also an offer from the petitioners for settling the dispute through mediation but that was totally rejected on behalf of the complainant.

30. Learned Senior Advocate for the petitioners also urged that in the circumstances of the case this Court may also consider a plea for granting bail to the petitioners in exercise of inherent jurisdiction under Section 482 Cr.P.C. I am of the considered view that when there are specific provisions in the Code for the said purpose, it would not be appropriate to do so in exercise of inherent powers under Section 482 Cr.P.C.

31. Mr. K.T.S. Tulsi, learned Senior Advocate also relied upon Pepsi Foods Ltd. and another vs. Special Judicial Magistrate and others, (1998) 5 SCC 749 wherein it was held that:-

26. Nomenclature under which petition is filed is not quite relevant
and that does not debar the court from exercising its jurisdiction
which otherwise it possesses unless there is special procedure
prescribed which procedure is mandatory. If in a case like the
present one the court finds that the appellants could not invoke its
jurisdiction under Article 226, the court can certainly treat the
petition as one under Article 227 or Section 482 of the Code. It may
not however, be lost sight of that provisions exist in the Code of
revision and appeal but sometime for immediate relief Section 482 of
the Code or Article 227 may have to be resorted to for correcting
some grave errors that might be committed by the subordinate courts.
……………………”

32. It may be true that a petition under Article 226 of the Constitution of India may be treated a petition under Article 227 of the Constitution of India or Section 482 Code of Criminal Procedure but that question does not arise in the instant case. In Savitri Goenka Vs. Kusum Lata Damani and others, 2008 Crl. L.J. 441, Hon’ble Supreme Court reiterated that practice of converting application filed under Section 482 Cr.P.C. to one for bail in terms of Section 438 or 439 Cr.P.C. has not been approved.

33. Learned Senior counsel for the petitioners also contended that this Court has ample power to order an enquiry how Section 307 IPC was added. I do not think that the said issue requires attention of this Court at this stage as the matter is still under investigation.

34. From the above discussion, the instant petition is dismissed. The observations made in this order will have no bearing on the disputed facts.

(R.P. NAGRATH ) JUDGE

October 05, 2013

jk

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