facts & circumstances clearly indicate case is to wreak vengeance & is a gross misuse of 498A IPC.

In this case a woman who is already divorced from her husband and who is living away from her husband files a 498a using her own uncle and her son as witnesses !! She files a MC case, and on the day husband comes to attend the MC case she claims the husband demanded Dowry !! (even though it is after divorce)

The AP High court clearly goes thru the evidence, appreciates the serious anomalies in the evidence and lets the lower court verdict of acquittal stand

The Hon court also clarifies that this case is GROSS misuse of 498a IPA

Quoting the Honourable court :
“…..15. The various facts and circumstances would clearly indicate that the complaint submitted by P.W. 1 was nothing but a step to wreak vengeance against the accused and the whole case presents an instance of gross misuse of provisions of Section 498A of IPC.

16. The Trial Court has discussed the evidence on record in proper perspective and had arrived at a just and proper conclusion, I do not see any reason to differ with the finding recorded by the Trial Court. The Crl.R.C. and the Crl. Appeal are accordingly dismissed……..”

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Andhra High Court

Perugu Varalakshmi vs State And Ors. on 17 December, 2002

Equivalent citations: II (2004) DMC 610

Author: L N Reddy

Bench: L N Reddy

JUDGMENT L. Narasimha Reddy, J.

1. In C.C. No. 39 of 1995 on the file of First Additional Munsif Magistrate, Tenali, Perugu Nageswara Babu (A1) and his parents Perugu Narasimha and Perugu Venkayamma (A2 and A3) were tried for offence under Section 498A, IPC. The Trial Court, through its judgment dated 22.9.1997, acquitted the accused. The State filed Criminal Appeal No. 199 of 1998 and the de facto complainant, that is the wife of A1 Perugu Varalakshmi filed Crl. R.C. No. 1224 of 1997 against the judgment of the Trial Court.

2. The case of the prosecution was that Perugu Varalakshmi (P.W. 1) as married to A1 in the year 1991 and both of them gave birth to a son P.W. 2. Subsequently, A1, A2 and A3 started harassing the P.W, 1 for bringing money as well as to convey the property at Tenali in favour of A1. P.W. 1 filed a complaint (Ex. P1) alleging that she has been harassed by A1 for bringing more dowry and to convey the property, The complaint was specific with reference to an incident, said to have taken place on 27.1.1995.

3. On receipt of the report, the police have taken up the investigation. They have recorded the statement of P.W. 1 as well as P.W. 2, who is the son of P.W. 1 and A1. The statements of other witnesses were also recorded under Section 161, Cr.P.C.

4. During the course of trial, the prosecution examined PWs. 1 to 6 and marked Exs. P. 1 and P. 2. P.W. 1 is the complainant herself and P.W. 2 is her son. P.W. 3 is the maternal uncle of P.W. 1. P.Ws. 4 and 5 are said to be the eye-witnesses to the incident said to have taken place on 27.1.1995. P.W. 6 is the Sub-Inspector of Police, who has investigated the case. Ex. P. 1 is the Report given by P.W. 1 to the Police and Ex. P2 is the FIR. Exs. D1 to D5 were marked on behalf of the Defence. Ex. D1 is the portion of the affidavit filed by P.W. 1 in the CMA in this Court. Exs. D2 to D5 are the portions of statement under Section 161 of P.Ws. 1/2 and 3.

5. On appreciation of the oral and documentary evidence, the Trial Court found that there were material inconsistencies in the evidence adduced on behalf of the prosecution and that no case was made out against the accused under Section 498 A and accordingly acquitted the accused of the offences alleged against them.

6. The learned Public Prosecutor and Mr. Dharma Rao, Advocate, who appeared in the appeal and Revision respectively submit that the evidence before the Trial Court was sufficient to convict the accused, respondents herein. It is their case that independent witnesses P.Ws. 4 and 5 have deposed to the factum of physical assault on P.W. 1 by A1 and his insistence on bringing more dowry and conveyance of the property. It is their case that the various instances that have taken place ever since the marriage of P.W. 1 with A1 would certainly constitute harassment and offence under Section 498-A. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

7. The learned Counsel for the accused/respondents, on the other hand, submits that P.W. 1 was only trying to wreak vengeance against the accused, in view of the decree of divorce passed against her and her not being able to be successful in the maintenance case filed by her.

8. The marriage of P.W. 1 with A1 took place in the year 1981. They lived together for about 2 years and P.W. 2 was born. Thereafter, P.W. 1 left the house of A1 in the year 1983. It has come on record that ever since 1983, P.W. 1 and A1 never lived together. A1 filed O.P. No. 36/1984 for divorce. The same is said to have been allowed on 30.7.1992. Thereby, the marital relationship between them ceased to exist. P.W. 1 has filed MC No. 22/1992 in the Court at Tenali, where she was living with her parents. The case was posted on 27.1.1995. A1 attended to the Court on that day.

9. The incident that gave rise to filing of the complaint by P.W. 1 is that on 27.1.1995, A1 was passing in front of her parents’ house at Tenali. Having noticed him, she sent P.W. 2, her son, to request A1 to take herself and P.W. 2 with him to Nizampatnam. When P. 2 was imploring A1, she too has gone to him. She alleged that A1 replied stating that unless the amount demanded by him is paid and the property is conveyed, he will not take them and when P.Ws. 1 and 2 insisted, he kicked P.W. 1. The incident was said to have been witnesses by P.Ws. 4 and 5.

10. P.W. 1 is none other than the complainant. She did not depose any thing about the proceedings that have taken place between herself and A1. Her version being self-serving cannot be totally relied upon. P.W. 2 is her son. Accordingly to P.W. 2 on that day, he came back to his house from school since he was suffering from stomach ache. He deposed that on being asked by P.W. 1, he went to A1 who was going in that lane and requested him to take himself and his mother of Nizampatnam. He repeated what is stated by P.W. 1. One important aspect, which needs to be noticed, is that according to P.W. 2, he studied his 2nd class in Tenali and 3rd and 4th Class (1991-92) at Nizampatnam, at the house of A1 to A3. He deposed that during that period, A2 and A3 used to beat P.W. 1. The subsequent studies are said to have taken place at Tenali. When it was the categorical case of P.W. 1, as evidenced from various other records that she left the house of the accused in the year 1983 and thereafter never went to that place, the version of P.W. 2 that he himself and P.W. 1 lived at Nizampatnam during 1991-92 is just unbelievable. The prosecution did not place any record before the Trial Court to substantiate the contention of P.W. 2.

11. P.W. 3 is the maternal uncle of P.W. 1. On account of his close relationship with the complainant, his evidence needs to be examined with a note of caution. Further, his evidence is so self-contradictory that it hardly needs any consideration at all. He is said to have mediated between P.W. 1 and A1. According to him, he went to the house of A1 on 14.8.1994 along with one G. Subbaiah. The mediation failed and the statement with regard to the whole affair was recorded by the police under Section 161 on the next day itself. It is a matter of record that the statement under Section 161 was recorded on 28,1.1995. This is sufficient to brush aside his evidence.

12. P.Ws. 4 and 5 are said to have witnessed the incident that has taken place on 27.1.1995 in the street in which the house of the parents of P.W. 1 is located, It is their evidence that both of them wore proceeding in that lane at about 1.30 to 2.00 P.M. and they stopped at Thirupathamma Temple is Ganganammapet for drinking water. When they were drinking water, P.W. 2 called A1 and when both of them were discussing. P.W. 1 came and asked A1 to take them to Nizampatnam. A1 is said to have told P.W. 1 that unless the money is given and property is conveyed, he will not take them. Both the witnesses said that P.W. 1 had caught hold of the legs of P.W. 1. While P.W. 3 states that A1 has kicked her, P.W. 4 states that he pushed her with hands and left the place.

13. It is not in dispute that as on the date of incident, there existed decree of divorce between A1 and P.W. 1. On 27.1.1995, the case filed by P.W. 1 under Section 125, Cr.P.C. was posted. It has come in evidence that A1 came to attend the case and returned from the Court after noticing next date of hearing. The sine qua non for charging a husband with an offence under Section 498-A of IPC is existence of relationship of husband and wife. Once decree of divorce was granted in favour of A1 against P.W. 1, there did not exist any legal basis to prosecute the respondents herein.

14. Even otherwise, if the complaint of P.W. 1 is examined from the attendant circumstances, it is not at all difficult to discern that she was only trying to harass A1 to A3 on one pretext or the other. The whole basis in the complaint was that when P.Ws. 1 and 2 approached A1 and requested him to take them back to Nizampatnam, he is said to have told them that unless the money is paid and property is conveyed, he will not take them and thereafter kicked PW. 1. The complaint itself was found to be interpolated. By the date of complaint, P.W. 1 was living separately from A1 for the past 12 years. In the meanwhile, the divorce O.P. came to be decreed and several proceedings have ensued between them including MC No. 22/1992 filed by her for maintenance. Except P.W. 3, none has spoken to the act that any demands were made for reconciliation. The purpose for which A1 came to Tenali was to attend the case filed against him by P.W. 1. Not only there did not exist any scope for reconciliation even by the 3rd parties, let alone the P.W. 1, but also relations were strained to a very bitter extent. Nobody would expect a wife, under such circumstances, to approach a husband, that too in a street, with such demands and requests. It is just impossible for any one in the place of A1, in a town where he does not reside, to kick his wife in a public street. The evidence of the witnesses examined on behalf of the prosecution does not gain confidence of the Court.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

15. The various facts and circumstances would clearly indicate that the complaint submitted by P.W. 1 was nothing but a step to wreak vengeance against the accused and the whole case presents an instance of gross misuse of provisions of Section 498A of IPC.

16. The Trial Court has discussed the evidence on record in proper perspective and had arrived at a just and proper conclusion, I do not see any reason to differ with the finding recorded by the Trial Court. The Crl.R.C. and the Crl. Appeal are accordingly dismissed.

*****************************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.
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Ablaa nari, officer in INTERNATIONAL bank, gets matri case transferred 450 km away from husband’s home !!

Ablaa nari, officer in INTERNATIONAL bank, gets matri case transferred 450 km away from husband’s home but the story does NOT end there !!

A husband files a matrimonial case. The wife, working for an INTERNATIONAL bank at Chennai,  wants case transferred to Chennai because it is DIFFICULT for her to go to husband’s place and attend the case. The husband is a school teacher.

I would hazard a guess that INTERNATIONAL bank officers earn much more than school teachers. I would also Hazard a guess that INTERNATIONAL banks make their employees travel all around globe and employees cannot object (terms of contract). Many such women travel alone, around the world ! Still this woman claims she cannot attend the Matri case at her husband’s place which is within Tamil Nadu, because it is 450 KM away from her home !!..

The Husband argues that transfer to Chennai will unduly delay the case as Family courts in Chennai are already overburdened. The Lordships at Madras HC transfer the case to Chennai and are now finding out IF MORE COURTS are to be opened in Chennai or if the workings of the courts are to be changed! Thanks to the honourables for taking care of our women !!

******************** news from TOI *********************

HC sets out to put family courts in order

TNN | Jun 18, 2015, 12.51 AM IST

CHENNAI: Amid piling up of cases in four family courts in Chennai, and criticism that they grant long adjournments and are slow in disposals, the Madras high court has called for details of pending cases, number of new cases and the problems faced by judges in dealing with litigants and advocates.

Justice N Kirubakaran suo motu impleaded law secretary and registrar general of the high court, taking note of grievance expressed by advocates that family courts spend most of the time in calling cases and fixing dates.

Among the details Justice Kirubakaran raised were the number of cases filed each year during the past 10 years before family courts in Chennai, and year-wise disposal of cases. He sought to know the number of cases which were settled through compromise every year.

Whether or not the existing courts are sufficient to handle the cases being filed, he asked, adding, “If not, how many additional courts are necessary?” He also queried whether the existing staff strength in these family courts are enough, and asked, “What are the problems faced by judicial officers while dealing with the parties and advocates?”

Besides the necessity, if any, for appointment of more counselors or counseling centres, he called for suggestions from advocates and others to help improve disposal of family court cases in Chennai.

Justice Kirubakaran framed these questions when a petition filed by a woman seeking transfer of her matrimonial dispute case from a Perundurai court to Chennai came up for hearing. An officer with an international bank’s Chennai branch, the woman said her husband had filed the divorce petition in a Perundurai court, located 450km from Chennai. Expressing her inability and difficulty to travel 900km for every hearing, she wanted the case to be transferred to Chennai.

The husband, a school teacher, however, opposed the plea, saying the transfer would pose problems, as family courts in Chennai were already grappling with a large pendency of cases, and disposal of his case would be delayed considerably.

It was his contention regarding delay that prompted Justice Kirubakran to frame questions regarding the number of new cases and disposals in family courts in Chennai. As for the case on hand, he ordered the transfer of the case to Chennai saying: “The petitioner, hardly 29 years old, is living with her parents in Chennai and, as a lady, it is impossible for her to travel to Perundurai covering 900km for every hearing.”

source
http://timesofindia.indiatimes.com/city/chennai/HC-sets-out-to-put-family-courts-in-order/articleshow/47712743.cms

Alleged Dowry demand at hubby’s town NOT continuing offence if NO demand at Girl’s place !! So case to be tried at hubby’s town. Hon Supreme court of India transfers case to Husband’s town

* Matrimonial home at Jabalpur
* Complaint lodged by wife’s father with police Jabalpur on 19.04.1997 alleging that husband & co * have been ill-treating his daughter and demanded dowry
* No criminal case was lodged at Jabalpur.
* Case at Datia court where wife resides
* High Court of Madhya Pradesh in Crl. Revision No. 98 of 1998 says Court at Datia has jurisdiction as it is a continuing offense !
* Supreme court distinguishes between continuing offense and offense committed once and for all and says dowry demands at husband’s place (Jabalpur) are NOT continuing offences at girl’s place (Datia)
* Case transferred to Husband’s place (Jabalpur)
* Good case to use whenever territorial Jurisdiction questions are asked

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SUPREME COURT OF INDIA
AUTHOR: S.B. SINHA
BENCH: S.B. SINHA, MARKANDEY KATJU
CASE NO.: Appeal (crl.)  210 of 2000
PETITIONER: Manish Ratan & Ors.                        
RESPONDENT: State of M.P. & Anr.                        
DATE OF JUDGMENT: 01/11/2006
BENCH: S.B. Sinha & Markandey Katju

JUDGMENT:

J U D G M E N T S.B. SINHA, J :

Application of Sections 177 and 178 of Code of Criminal Procedure (Code) is involved in this appeal which arises out of a judgment and order dated 1.09.1998 passed by the High Court of Madhya Pradesh in Crl. Revision No. 98 of 1998.

Appellant No. 1 was married with Meena, Respondent No. 2 herein at Niwari, Distt. Tikangarh. They were living at their matrimonial home at Jabalpur. Allegedly, a complaint was lodged by father-in-law of Appellant No. 1 with the police station, Jabalpur on 19.04.1997 alleging that the appellants have been ill-treating his daughter and demanded dowry. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Meena allegedly lodged another First Information Report against the appellants at the Police Station, Datia on 25.05.1997 whereupon a criminal case was registered. In the said complaint, the place of incident was said to have taken place in House No. 151, Adarsh Nagar Narbada Road, Jabalpur. The period during which the incident took place was said to be before November, 1995 till 25.08.1997. It was alleged:

      “7. That during the time of Dusshera the complainant’s
      husband Manish, Father in law S.S. Rattan, Mother in law
      Smt. Kiran and sister in law Menaka (Minni) illtreated her
      so much that she left her house and saved her life by some
      means and reached in her Mama’s house at Bhopal and from
      there she reached her house and since then she has been
      staying with her father.”

A criminal revision was filed by the appellants questioning the jurisdiction of the Court of Chief Judicial Magistrate, Datia. By reason of the impugned judgment, the said criminal revision application has been dismissed opining that the offence being a continuing one, Datia Court had jurisdiction to take cognizance of the offence.

The High Court did not consider the question on the touchstone of Sections 177 and 178 of the Code. It is interesting to note that while arriving at the decision the High Court distinguished the decision of this Court in Sujata Mukherjee (Smt) v. Prashant Kumar Mukherjee [(1997) 5 SCC 30], stating:

      “The High Court held that excepting against the husband,
      the complaint against other respondents related to the
      incidents taking place at Raigarh and as such, the criminal
      case on the basis of complaint made by the appellant was
      not maintainable against the said other respondents at
      Raipur but it was maintainable so far as the husband of the
      appellant was concerned. On these facts, the Apex Court
      took the view that the complaint reveals a continuing
      offence of the mal-treatment and humiliation meted out to
      the appellant in the hands of all the accused
      respondents, and in such continuing offence, on some
      occasions all the respondents had taken part and on other
      occasion, one of the respondents had taken part. It was,
      therefore, held that in view of clause (c) of Section 178
      of Cr.P.C., the High Court was not right. The order passed
      by the High Court was set aside and the learned CJM, Raipur
      had jurisdiction to try the case. The facts of the present
      case are different. There is nothing in the complaint to
      show that any mal-treatment was given to the complainant at
      Datia. The allegations, which I may repeat here, are that
      the mal-treatment was given within a specific period at
      Jabalpur. There is nothing to show that any mal-treatment
      was given by any of the petitioners at Datia and under
      these circumstances, this case of Sujata Mukherjee does not
      help the learned counsel for the complainant in this case.”

By a curious process of reasoning, however, it was held:

      “They demanded a sum of Rs. 7.00 lakhs and forced her to
      write a letter to her parents in that regard. She was
      beaten and kept starving. Somehow she managed to escape and
      went to her Mama’s place at Bhopal and from there she went
      to father’s place and was living there. Thus these facts go
      to show that she was forced to go to her father’s place on
      account of the fact that she was mal-treated; as demand of
      Rs. 7.00 lakhs was not fulfilled. As laid down in the
      aforesaid decision of this Court, the word ‘cruelty’ is not
      only the physical cruelty, the lady was forced to live at
      her father’s place on account of the torture of the inlaws
      and as such it can safely be said that there was also a
      mental cruelty. The cruelty and the terror of the in-laws
      continued even at the place of the father where she was
      living. In this view of the matter, it can safely be said
      that the harassment continued at the place where she was
      residing with her father. In view of the provision of
      Section 178 Cr.P.C., the offence may be inquired into and
      tried by a Court where the physical harassment, marpeet had
      taken place i.e. the in-laws’ place and also where the
      harassment continued i.e. the place where she was residing.
      Thus in view of the law laid down by this Court in the
      aforesaid authority with which I respectfully agree, the
      Court at Datia had also jurisdiction to try the case.”

It is not denied or disputed that no part of cause of action arose within the territorial limits of the jurisdiction of the Datia Court. Section 177 of the Code ordains that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.

Interpretation of the term “ordinarily” will have to be considered having regard to the provisions contained in Section 178 thereof which reads as under:

      “178. Place of inquiry or trial.(a) When it is uncertain in
      which of several local areas an offence was committed, or
      
      (b) where an offence is committed partly in one local area
      and partly in another, or
      
      (c) where an offence is continuing one, and continues to
      be committed in more local areas than one, or
      
      (d) where it consists of several acts done in different
      local areas, it may be inquired into or tried by a court
      having jurisdiction over any of such local areas.”

Clause (c) of the said provision, thus, has been applied in the instant case.

Whether the allegations made in the complaint petition would constitute a continuing offence, thus, is the core question.

In a case of this nature, an offence cannot be held to be a continuing one, only because the complainant is forced to leave her matrimonial home.

In State of Bihar v. Deokaran Nenshi and Another [(1972) 2 SCC 890], it was stated:

      “A continuing offence is one which is susceptible of
      continuance and is distinguishable from the one which is
      committed once and for all. It is one of those offences
      which arises out of a failure to obey or comply with a rule
      or its requirement and which involves a penalty, the
      liability for which continues until the rule or its
      requirement is obeyed or complied with. On every occasion
      that such disobediance or non-compliance occurs and
      reoccurs, there is the offence committed. The distinction
      between the two kinds of offences is between an act or
      omission which constitutes an offence once and for all and
      an act or omission which continues, and therefore,
      constitutes a fresh offence every time or occasion on which
      it continues. In the case of a continuing offence, there is
      thus the ingredient of continuance of the offence which is
      absent in the case of an offence which takes place when an
      act or omission is committed once and for all.”

In Sujata Mukherjee (supra) this Court held the offence to be a continuing one as specific allegations had been made against the husband that he had also gone to Raipur where the complaint was filed and had assaulted the appellant therein. It was in the aforementioned fact situation, this Court set aside the judgment of the High Court holding that the incident at Raipur was not an isolated event stating:

      “At the hearing of these appeals, Mr Gambhir, the learned
      counsel appearing for the appellant, has submitted that it
      will be evident from the complaint that the appellant has
      alleged that she had been subjected to cruel treatment
      persistently at Raigarh and also at Raipur and incident
      taking place at Raipur is not an isolated event, but
      consequential to the series of incidents taking place at
      Raigarh. Therefore, the High Court was wrong in
      appreciating the scope of the complaint and proceeding on
      the footing that several isolated events had taken place at
      Raigarh and one isolated incident had taken place at
      Raipur. Hence, the criminal case filed in the Court of the
      Chief Judicial Magistrate, Raipur was only maintainable
      against the respondent husband against whom some overt act
      at Raipur was alleged. But such case was not maintainable
      against the other respondents.”

This Court having regard to the peculiar fact situation obtaining therein held:

      “We have taken into consideration the complaint filed by
      the appellant and it appears to us that the complaint
      reveals a continuing offence of maltreatment and
      humiliation meted out to the appellant in the hands of all
      the accused respondents and in such continuing offence, on
      some occasions all the respondents had taken part and on
      other occasion, one of the respondents had taken part.
      Therefore, clause (c) of Section 178 of the Code of
      Criminal Procedure is clearly attracted. We, therefore, set
      aside the impugned order of the High Court and direct the
      learned Chief Judicial Magistrate, Raipur to proceed with
      the criminal case”

Sujata Mukherjee (supra) was distinguished by a Division Bench of this Court in Y. Abraham Ajith and Others v. Inspector of Police, Chennai and Another [(2004) 8 SCC 100] where noticing the interpretation of the expression “cause of action”, it was held that the expression “ordinarily” need not be limited to those specially provided for by the law and exceptions may be provided by law on consideration or may be implied from the provisions of law permitting joint trial of offences by the same Court. In that case the complaint itself disclosed that after 15.04.1997, the respondent left Nagercoil and went to Chennai and was staying there. Thus, having regard to the fact that all allegations according to the complainant took place at Nagercoil, it was held that the courts at Chennai did not have the jurisdiction to deal with the matter. It was held:

      “This Court held in that factual background that clause (c)
      of Section 178 was attracted. But in the present case the
      factual position is different and the complainant herself
      left the house of the husband on 15-4-1997 on account of
      alleged dowry demands by the husband and his relations.
      There is thereafter not even a whisper of allegations about
      any demand of dowry or commission of any act constituting
      an offence much less at Chennai. That being so, the logic
      of Section 178(c) of the Code relating to continuance of
      the offences cannot be applied.”

Yet again in Ramesh and Others v. State of T.N. [(2005) 3 SCC 507], Abraham Ajith (supra) was followed by this Court stating:

      “In the view we are taking, it is not necessary for us to
      delve into the question of territorial jurisdiction of the
      Court at Trichy in detail. Suffice it to say that on
      looking at the complaint at its face value, the offences
      alleged cannot be said to have been committed wholly or
      partly within the local jurisdiction of the Magistrates
      Court at Trichy. Prima facie, none of the ingredients
      constituting the offence can be said to have occurred
      within the local jurisdiction of that court. Almost all the
      allegations pertain to acts of cruelty for the purpose of
      extracting additional property as dowry while she was in
      the matrimonial home at Mumbai and the alleged acts of
      misappropriation of her movable property at Mumbai.
      However, there is one allegation relevant to Section 498-A
      from which it could be inferred that one of the acts giving
      rise to the offence under the said section had taken place
      in Chennai. It is alleged that when the relations of the
      informant met her in-laws at a hotel in Chennai where they
      were staying on 13- 10-1998, there was again a demand for
      dowry and a threat to torture her in case she was sent back
      to Mumbai without the money and articles demanded.
      
      Thus the alleged acts which according to the petitioner
      constitute the offences under Sections 498-A and 406 were
      done by the accused mostly in Mumbai and partly in Chennai.
      Prima facie, there is nothing in the entire complaint which
      goes to show that any acts constituting the alleged
      offences were at all committed at Trichy.”

The said decisions are squarely applicable to the facts of the present case.

Our attention was drawn to the fact that no criminal case was lodged at Jabalpur. Our attention was further drawn to the fact that the investigation of the case is complete.

We, therefore, are of the opinion that, interest of justice would be subserved, while setting aside the order of the High Court, if in exercise of our jurisdiction under Article 142 of the Constitution of India, we direct transfer of the criminal case pending in the Court of Chief Judicial Magistrate, Datia to the Court of Chief Judicial Magistrate, Jabalpur. We accordingly do so. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Although the complainant has filed an application before us for impleading herself as a party, nobody has appeared on her behalf. We, therefore, direct the Chief Judicial Magistrate, Jabalpur to issue notice to her. Keeping in view of the fact that Respondent No. 2 is residing at Datia, we would request the Chief Judicial Magistrate, Jabalpur to accommodate her in the matter of fixing the date (s) of hearing as far as possible.

The appeal is allowed with the aforementioned directions.

*****************************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.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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Sister in law roped into 498a case without specific allegations or proof. Patna HC quashes case & talks of misuse of 498a

Quoting the Honourable court :

“9. …….Though the contents of the complaint made out a prima facie case against the husband of the complainant and some other family member, but if evidence collected in course of enquiry is appreciated and scrutinized in its entirety , it would appear that there is no specific allegation against the petitioner, who is unmarried sister of the husband of the complainant except casual reference of her name at some places. In any view, in a matrimonial dispute, without allegation of any active involvement in the matter, it would not be proper to put the petitioner on trial. In course of argument, it has been submitted by the learned counsel for the petitioner that presently the petitioner is married and is residing at her matrimonial home. In my view, allowing the prosecution to continue against her, would be counterproductive and it may even ruin her matrimonial life….”
xxx
12. Misuse of section 498A of I.P.C. in may cases has been judicially noticed by the Apex Court as well as various High Courts. It has been highlighted in those judgments that keeping in view the social objective behind the section, it is the duty of the courts to ensure that the complaints filed with false or exaggerated allegations out of ulterior motives or in a fit of emotion should be curbed .
13. Recently, the Apex Court equated misuse of the section to “legal terrorism” and said it was being treated as a “weapon rather than a shield by disgruntled wives.
xxx
16. When I look to the facts and circumstances of the present case, in the background of legal principles set out by the Apex Court, I deem it appropriate to quash the complaint against the petitioner in the interest of justice. ..”

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IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.50645 of 2012

1. Binny Kumari D/O Sri Parashnath Singh R/O Village- Rewa Basatpur
(Southern), P.S- Saraiya, District- Muzaffarpur.     …. ….   Petitioner/s

        Versus

1. The State Of Bihar
2. Saroj Devi W/O Krishna Kumar And D/O Sri Lalan At Present Resident
Of Village- Kaithwalia, P.O- Darmaha, P.S- Kalyanpur, District- East
Champaran.                        …. …. Opposite Party/s
******************************************************
Appearance :
For the Petitioner/s     :   Mr. Sanjay Kumar @ S.K., Advocate
For the Opposite Party/s   : Mr. Dhananjay Kumar No.2 A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH

ORAL ORDER

13-05-2015

Heard learned counsel for the petitioner, learned counsel for the State and O.P. no.2.

2. The present application under section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 11.09.2012 passed in Trial No. 3649 of 2012 arising out of Complaint Case No. C-1561 of 2011 by which finding a prima facie case to be made out for the offences punishable under sections 498A and 379 of the Indian Penal Code, the petitioner and three others have been summoned to face trial.

3. The prosecution story, as described in the complaint petition, in short, is that the complainant Saroj Devi was married to Shri Krishna Kumar Singh on 06.06.2010. In the traditional wedding ceremony attendant festivities and formalities substantial amount was spent by the father of the complainant. About one month after the marriage, the accused persons started demanding Rs. 100000/-in cash and a motorcycle. They subjected her to cruelty in various ways so that she may compel her father to fulfill their illegal demand. It has further been stated that the husband of the complainant is employed in the Indian Army and while he was going to join at the place of his posting, he instigated the other family members to behave in a manner so that the complainant may be left with no option but to fulfill the illegal demand. Thereafter the accused persons subjected her cruelty in various ways. She was abused and assaulted by the accused persons in her matrimonial home. On 05.10.2010, while she was pregnant, she was taken on a jeep by the petitioner and her father and was dropped at her parent’s house. They forbade her to come back to her matrimonial home. They kept all her belongings and ornaments with themselves. It has been stated that on 13.03.2011 the complainant gave birth to a baby at a Private Nursing Hospital at Muzaffarpur. All the accused persons had knowledge about the same but they failed to take any care of the complainant or the newly born baby.

4. In support of the allegations made in the complaint she was examined on oath and apart from the complainant four other witnesses were also examined in course of enquiry conducted under section 202 of the Code of Criminal Procedure. After examining the complainant and four enquiry witnesses the learned S.D.J.M, Motiharti passed the impugned order dated 11.09.2012 whereby the husband of the complainant, the petitioner (sister of the complainant’s husband) and their parents have been summoned.

5. It has been contended that it is a case of matrimonial dispute between the complainant and her husband in which the other family members have unnecessarily been dragged. It has further been contended that there is no truth behind the allegation of subjecting the complainant to any sort of cruelty for non-fulfillment of demand of dowry. It is submitted that at the relevant time the petitioner was not even married. She had no say in the day-to-day matrimonial life of the complainant and her husband. There is no specific allegation against her in the complaint petition. There is only a passing reference of her name and a general and omnibus allegation against her that she also participated in subjecting the complainant to cruelty along with the other accused persons. It is submitted that in the statement on oath, in reply to the court question, the complainant has stated that she does not want to go to her matrimonial home. She has not uttered a word against the petitioner in her deposition. The two other inquiry witnesses, namely, Lalan Kunwar, father of the complainant and Baban Kunwar, uncle of the complainant have also not made any specific allegation against the petitioner. The remaining two witnesses namely, Jitendra Singh and Birejdra Kumar Singh are co-villagers and even in their deposition also no specific allegation has been made against the petitioner.

6. On the basis of the aforesaid submission,, learned counsel for the petitioner has submitted that the learned S.D.J.M, has erroneously summoned the petitioner in a mechanical manner without appreciating the evidence collected in course of enquiry.

7. On the other hand learned counsel for the O.P. no.2 has submitted that though there is no specific allegation against the petitioner in the statement of the complainant or in the statement of witnesses recorded in course of enquiry but in the complaint petition it has categorically been stated that on 05.10.2010 the complainant was taken on a jeep by the petitioner and her father and they dropped her at her matrimonial home. They had also threatened the complainant not to come back to her matrimonial home. Hence, he has submitted that there is evidence on the basis of which ingredients of the offences are attracted. He has also submitted that there is omnibus allegation against the petitioner also along with others to have subjected the complainant to cruelty for non-fulfillment of demand of dowry. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. Learned counsel for the State has also adopted the submission made by the learned counsel for the O.P. no.2.

9. I have heard respective counsel for the parties and with their assistance perused the record. Though the contents of the complaint made out a prima facie case against the husband of the complainant and some other family member, but if evidence collected in course of enquiry is appreciated and scrutinized in its entirety , it would appear that there is no specific allegation against the petitioner, who is unmarried sister of the husband of the complainant except casual reference of her name at some places. In any view, in a matrimonial dispute, without allegation of any active involvement in the matter, it would not be proper to put the petitioner on trial. In course of argument, it has been submitted by the learned counsel for the petitioner that presently the petitioner is married and is residing at her matrimonial home. In my view, allowing the prosecution to continue against her, would be counterproductive and it may even ruin her matrimonial life.

10. Recognizing the rising trend of matrimonial dispute, the Apex Court in G.B. Rao Vs. L.H.V Prasad reported in (2000)3 SCC 693 observed in Para 12 as under:

       “12. There has been an outburst of matrimonial disputes in
       recent times. Marriage is a sacred ceremony, the 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
       commission of 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 other reasons which need not be mentioned here for not
       encouraging matrimonial litigation so that the parties may
       ponder over their defaults and terminate their 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.”

11. The view taken by the Apex Court in that matter was that the court would not encourage such dispute. At this stage, I am tempted to take note of the fact of yet another case before the Apex Court (Geeta Mehrotra V. State of U.P. reported in 2012(10) SCC 741). In that case there was matrimonial dispute between wife and husband. The wife lodged an F.I.R against her husband and family members including the accused Geeta Marhotra, the unmarried sister. She filed an application for quashing of the cognizance on several grounds before the High Court. One of the grounds was that a prima facie case was not attracted against her in absence of specific allegation. The High Court declined to interfere in the matter. The order of the High Court was challenged before the Apex Court in appeal. After hearing the parties, in paragraph 27, the Apex Court held as under:

       “27. The High Court in our considered opinion appears to have
       missed that assuming the trial court had territorial
       jurisdiction, it was still left to be decided whether it was a
       fit case to send the appellants for trial when the FIR failed to
       make out a prima facie case against them regarding the
       allegation of inflicting physical and mental torture to the
       complainant demanding dowry from the complainant. Since the High
       Court has failed to consider all these aspects, this Court as
       already stated hereinbefore, could have remitted the matter to
       the High Court to consider whether a case was made out against
       the appellants to proceed against them. But as the contents of
       the FIR do not disclose specific allegation against the brother
       and sister of the complainant’s husband except casual reference
       of their names, it would not be just to direct them to go
       through protracted procedure by remanding for consideration of
       the matter all over again by the High Court and make the
       unmarried sister of the main accused and his elder brother to
       suffer the ordeal of a criminal case pending against them
       specially when the FIR does not disclose ingredients of offence
       under Sections 498-A/323/504/506 IPC and Sections 3/4 of the
       Dowry Prohibition Act.”

12. Misuse of section 498A of I.P.C. in may cases has been judicially noticed by the Apex Court as well as various High Courts. It has been highlighted in those judgments that keeping in view the social objective behind the section, it is the duty of the courts to ensure that the complaints filed with false or exaggerated allegations out of ulterior motives or in a fit of emotion should be curbed .

13. Recently, the Apex Court equated misuse of the section to “legal terrorism” and said it was being treated as a “weapon rather than a shield by disgruntled wives.” http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

14. The Apex Court in Preeti Gupta & another v. State of Jharkhand reported in (2010)7 SCC 667 even reminded the learned members of the Bar that as they owe enormous social responsibility and obligation for ensuring social fiber of family life, they ought not to advice presentation of exaggerated version of small incidents so that ever grooming tendency of one complaint giving rise to multiple cases should be curbed. Treating every complaint under 498 A as basic human problem the Apex Court observed that the advocates must make serious endeavor to help the parties in arriving at an amicable solution.

15. In Preeti Gupta & another (Supra) in paras 30, 32, 33 and 34 the Apex Court went on to hold:

       “30. It is a matter of common knowledge that unfortunately
       matrimonial litigation is rapidly increasing in our country. All
       the courts in our country including this Court are flooded with
       matrimonial cases. This clearly demonstrates discontent and
       unrest in the family life of a large number of people of the
       society.
       
       31. x x x x x x x x
       
       32. It is a matter of common experience that most of these
       complaints under Section 498-A IPC are filed in the heat of the
       moment over trivial issues without proper deliberations. We come
       across a large number of such complaints which are not even bona
       fide and are filed with oblique motive. At the same time, rapid
       increase in the number of genuine cases of dowry harassment is
       also a matter of serious concern.
       
       33. The learned members of the Bar have enormous social
       responsibility and obligation to ensure that the social fibre of
       family life is not ruined or demolished. They must ensure that
       exaggerated versions of small incidents should not be reflected
       in the criminal complaints. Majority of the complaints are filed
       either on their advice or with their concurrence. The learned
       members of the Bar who belong to a noble profession must
       maintain its noble traditions and should treat every complaint
       under Section 498-A as a basic human problem and must make
       serious endeavour to help the parties in arriving at an amicable
       resolution of that human problem. They must discharge their
       duties to the best of their abilities to ensure that social
       fibre, peace and tranquillity of the society remains intact. The
       members of the Bar should also ensure that one complaint should
       not lead to multiple cases.
       
       34. Unfortunately, at the time of filing of the complaint the
       implications and consequences are not properly visualised by the
       complainant that such complaint can lead to insurmountable
       harassment, agony and pain to the complainant, accused and his
       close relations.”

16. When I look to the facts and circumstances of the present case, in the background of legal principles set out by the Apex Court, I deem it appropriate to quash the complaint against the petitioner in the interest of justice.

17 Accordingly, the order dated 11.09.2012 passed in Trial No. 3649 of 2012 arising out of Complaint Case No. C-1561 of 2011 by the learned Sub-divisional Judicial Magistrate, so far as it relates to the petitioner, is quashed.

18. Consequently, the application stands allowed to the extent indicated hereinabove.

(Ashwani Kumar Singh, J)

M.Rahman/-

U           T

*****************************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.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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M.P. No.1 of 2008 in Crl.O.P. No.10896 of 2008

M.P. No.1 of 2008 in Crl.O.P. No.10896 of 2008

Madras HC in 2008: “Apart from the husband, all family members are implicated and dragged to the police stations”

“…It must also be borne in mind that the object behind the enactment of Section 498-A IPC and the Dowry Prohibition Act is to check and curb the menace of dowry and at the same time, to save the matrimonial homes from destruction. Our experience shows that, apart from the husband, all family members are implicated and dragged to the police stations. Though arrest of those persons is not at all necessary, in a number of cases, such harassment is made simply to satisfy the ego and anger of the complainant. …”

The Honourable court issues detailed directions to the Police on how to conduct inquiry and steps to be taken before arrest and goes on to say “…Arrest in matrimonial disputes, in particular arrest of aged, infirm, sick persons and minors, shall not be made by the Station House Officers of the All Women Police Stations. If arrest is necessary during investigation, sanction must be obtained from the Superintendent of Police concerned by forwarding the reasons recorded in writing…”

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 04.08.2008

CORAM

THE HON’BLE MR. JUSTICE R.REGUPATHI

M.P. No.1 of 2008 in Crl.O.P. No.10896 of 2008

ORDER

Pursuant to the direction of this Court dated 07.07.2008 to file compliance report, the Director General of Police in consultation with the Government, has issued the following Circular Memorandum:-

” Circular Memorandum

Sub-Filing of cases registered under Dowry Death / Suicide in All Women P.S. – Instructions issued. *****

The Honorable High Court has issued the following observation in M.P. No.1/2008 in Criminal Original Petition No.10896/2008 filed by Tr.Romaiah.

i) Except in cases of Dowry Death/suicide and offences of serious nature, the Station House Officers of the All Women Police Stations are to register F.I.R. only on approval of the Dowry Prohibition Officer concerned.

ii) Social workers/mediators with experience may be nominated and housed in the same premises of All Women Police Stations along with Dowry Prohibition Officers.

iii) Arrest in matrimonial disputes, in particular arrest of aged, infirm, sick persons and minors, shall not be made by the Station House Officers of the All Women Police Stations.

iv) If arrest is necessary during investigation, sanction must be obtained from the Superintendent of Police concerned by forwarding the reasons recorded in writing.

v) Arrest can be made after filing of the final report before the Magistrate concerned if there is non-cooperation and abscondance of accused persons, and after receipt of appropriate order (Non-Bailable Warrant).

vi) Charge sheet must be filed within a period of 30 days from the date of registration of the F.I.R. and in case of failure, extension of time shall be sought for from the jurisdiction Magistrate indicating the reasons for the failure.

vii) No weapon including Lathis/physical force be used while handling cases at the All Women Police Stations.

viii) Complainants/victims should be provided with adequate security/accommodation at Government Home and interest of the children must be taken care of.

ix) Sridana properties/movables and immovable to be restored at the earliest to the victims/complainants and legal aid may be arranged for them through Legal Services Authority for immediate redressal of their grievances.

2) The Commissioners of Police in cities and Superintendents of Police in Districts are requested to strictly follow the above instructions without any deviations.

3) Receipt of the same should be acknowledged.

Sd/- (29.07.2008)

For Director General of Police.”

2. In respect of suggestion Nos.8 and 11 made by this Court; in the letter, dated 01.08.2008, of the Director General of Police, it has been stated as follows:-

” 2) With regard to the suggestion No.8, i.e., “A different Uniform other than the regular one may be recommended for these police officers” – the matter requires deliberations at length with Senior Police Officers in the State. All the Senior Officers have been addressed to send their view on the subject. After obtaining their views the matter will be discussed at State Headquarters and a report in this regard will be sent.

3) With regard to suggestion No.11 – Director General of Police, Training has been addressed to initiate action to conduct Education programme for Police Officers on the objects of the legislation, judicial pronouncements and development of law. Further progress report will be sent. “

3. Learned Government Advocate (Crl. Side) submits that, by virtue of the above Circular Memorandum, all the Commissioners of Police and the Superintendents of Police in the State have been instructed to scrupulously follow the suggestions, enumerated in the form of instructions, and therefore, in effect, the order of this Court has been complied with.

4. The complaisant reaction to the suggestions made by this Court and issuance of the aforesaid Circular Memorandum with suitable instructions by the Director General of Police deserves deep appreciation of this Court. It must also be pointed out that though several such suggestions and instructions were earlier made/issued in that perspective by the Honourable Supreme Court as well as this Court, there was no expected progress or outcome since, in course of time, the system started trailing with the same deviation and anomalies to reform/correct which the instructions were issued. At least now, this Court is anxious to see that the directives are strictly followed perpetually with letter and spirit by the Investigating Officers of the Department in particular the officers posted at the All Women Police Stations.

5. Before parting, having regard to the directions issued to the Police Department, this Court deems it necessary to outline certain aspects with regard to the role of the Judicial Magistrates and their effective functioning in deriving a positive outcome.

As could be seen, though suitable directions have been given to the police, in particular to the Station House Officers, still there may be scope for misuse of power. The directions/instructions are only illustrative and not exhaustive. When the investigating officers seek for remand of the accused, the Magistrates must examine the necessity for the same and only where there are valid grounds for believing that the accusation or information is well-founded and it appears that the investigation cannot be completed within a period of 24 hours, remand may be ordered. Violation of human rights and infringement of personal liberties must be viewed seriously. Except in cases of grave nature viz., dowry death, murder, suicide, hurt, etc., in other matters like matrimonial disputes between spouses where it may not take much time for the police officer to interrogate/investigate, remand should not be ordered mechanically, for, remand of an accused by a Magistrate is not automatic one on the mere request of the investigating officer and sufficient grounds must exist for the Magistrate to exercise the power of remand. To put it clear, a requisition of remand by the police must accompany the Case Diary, whereupon, the Magistrate must satisfy himself as to the adequacy and genuineness of the grounds necessitating judicial custody and while passing orders for remand or extension of remand, he must be alert to see that the liberty of the citizen is not violated by the police due to arbitrary exercise of power. Though a detailed speaking order is not required for remand, application of judicial mind is absolutely necessary.

Of course, it is provided in the Code that remand should not exceed 15 days at a time, but, it does not mean that in all cases, remand for 15 days should be ordered invariably. At the time of production of the accused before the Magistrates, they should examine the necessity and even at the time of initial remand, if it appears that remand is not necessary, bail application can be entertained provided the accused is prepared to furnish necessary surety or security as may be directed by the court. Likewise, in cases where remand is required to be ordered, the period must be circumscribed depending upon the nature of the case, the materials produced by the prosecution and the actual requirement. Though the law is manifestly clear, plain and patent, in many cases, it is witnessed that, on the mere request of the investigating officers, remand is ordered mechanically without application of mind and such illegal practice must be avoided.

It must also be borne in mind that the object behind the enactment of Section 498-A IPC and the Dowry Prohibition Act is to check and curb the menace of dowry and at the same time, to save the matrimonial homes from destruction. Our experience shows that, apart from the husband, all family members are implicated and dragged to the police stations. Though arrest of those persons is not at all necessary, in a number of cases, such harassment is made simply to satisfy the ego and anger of the complainant. By suitably dealing with such matters, the injury to innocents could be avoided to a considerable extent by the Magistrates, but, if the Magistrates themselves accede to the bare requests of the police without examining the actual state of affairs, it would create negative effects thereby, the very purpose of the legislation would be defeated and the doors of conciliation would be closed forever. The husband and his family members may have difference of opinion in the dispute, for which, arrest and judicial remand are not the answers. The ultimate object of every legal system is to punish the guilty and protect the innocents.

It is only before the jurisdiction Magistrate concerned, on conclusion of the investigation, final report is filed, whereupon, trial of the case is taken up and, in matters relating to serious offences, committal proceedings are initiated. It is the learned Magistrates who are empowered to order maintenance under Section 125 Cr.P.C. and award compensation in appropriate cases. Pending investigation, for grant of instant relief viz., to award interim maintenance, interim compensation, entrust custody of minor, forward the victims to Govt. Homes, issue search warrant, order bailable or non-bailable warrant, restore sridana properties, send the injured to the Hospital, provide security, etc., to the complainant/wife/victim, the learned Magistrates can be approached and at such point of time, the Magistrates must see to it that orders are passed without any delay. The preliminary job of an Investigating Officer including that of the Officers posted at the All Women Police Stations is only to collect the materials in respect of the dispute they are investigating and place the same before the court/Magistrate. For adjudicating any issue, the dispute must be forwarded only to the learned Magistrate or the Family court. In this type of fragile matters, in the name of ‘petition enquiry’ or investigation after registration of F.I.R., the police should not be allowed to conduct lengthy panchayats in police stations. If the dispute could not be resolved within a period of one week, a conclusion must be reached one way or the other and the matter must be forwarded to the learned Magistrate concerned.

Therefore, while considering such cases, the learned Magistrates are directed to apply their judicial mind having regard to the propounded principles and procedure and the various aspects pointed out in the course of this order and also to monitor scrupulous adherence to the instructions referred to above by the police officers concerned.

6. With the above observations and direction, the petition is closed.

7. Registry is directed to immediately circulate copy of this order as well as the earlier order dated 07.07.2008 to the Director General of Police, Tamil Nadu, and all the Judicial Magistrates for compliance.

JI

*****************************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.
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source http://judis.nic.in/judis_chennai/qrydisp.aspx?filename=15228
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Sister in law is roped in with a false 498a complaint & Hon Supreme court quashes the same

Wife makes bald statements against a sister in law who is staying separately from the couple. 498a is filed against that sister in law (in addition to the husband and others!) the sister in law is forced to run up to the Supreme court and get the case quashed

Quoting the Honourable Apex court : “…Even acts of abetment in connection with unlawful demand for property/dowry are not alleged against her. The bald allegations made against her sister-in-law seem to suggest the anxiety of the informant to rope in as many of the husband’s relations as possible. Neither the F.I.R. nor the charge-sheet furnished the legal basis to the Magistrate to take cognizance of the offences alleged against the appellant Gowri Ramaswamy. The High Court ought not to have relegated her to the ordeal of trial. Accordingly, the proceedings against the appellant Gowri Ramaswamy are hereby quashed and her appeal stands allowed….”

However the court does NOT quash the case against the husband and others. The issue of limitation raised by the husband is also NOT accepted by the court. The cases are transferred to Chennai.

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Ramesh and others Vs State of Tamil Nadu

SUPREME COURT OF INDIA

CASE NO.: Appeal (crl.) 372 of 2005

PETITIONER: Ramesh and Ors.

RESPONDENT: State of Tamil Nadu

DATE OF JUDGMENT: 03/03/2005

BENCH: P. Venkatarama Reddi & A.K. Mathur

 

JUDGMENT:

JUDGMENT ORDER Leave granted.

The two appeals filed by five accused (three in one case and two in another) arise out of two identical orders passed by the Madras High Court on 7.8.2003 and 21.8.2003 dismissing the petitions filed by them under Section 482 of the Criminal Procedure Code (Cr.P.C.’, for short) by which a prayer was made to quash the chargre-sheet and the consequential proceedings in C.C. No. 72/2002 on the file of the Judicial Magistrate III, Tiruchirapalli (`Trichy’ for short), Tamil Nadu Sate. The wife of the 1st appellant in the appeal arising out of SLP(Crl.) No. 5735/2003, filed a complaint on 23.6.1999 with the All Women Police Station, Trichy alleging the commission of offences under Sections 498-A and 406 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. Allegations were made in the said complaint against the husband, the in-laws, husband’s brother and sister, who were all the petitioners before the High Court and the appellants herein. After registration of the F.I.R. and investigation, the charge-sheet was filed by the Inspector of Police, All Women Police Station, Trichy on 28.12.2001 in the Court of the Judicial Magistrate-III, Trichy. Thereupon, the learned Magistrate took cognizance of the offence and issued warrants against the appellants on 13.2.2002. It appears that four of the appellants were arrested and released on bail by the Magistrate at Mumbai. The appellants then filed Criminal Writ Petition No. 593/2002 in the Bombay High Court for quashing the F.I.R. or in the alternative to transfer the F.I.R. to Mumbai. The proceedings were stayed by the High Court. On 2.6.2003, the writ petition was dismissed as withdrawn while giving liberty to approach the High Court of Madras at chennai for appropriate relief. Thereafter, the appellants filed the petition under Section 482 Cr.P.C. before the Madras High Court for quashing the proceedings in C.C. No. 72/2002 on the file of the Judicial Magisrate-III, Trichy.

The High Court by the impugned order dismissed the petition with the following observations : “But the grounds raised by the Petitioners are all subject matters to be heard by the trial court for better appreciation after conducting full trial and hence this Court is of the view that it is only desirable to dismiss the above Criminal Original Petition and the same is dismissed as such.”

However the High Court directed the Magistrate to dispense with the personal attendance of the appellants. Aggrieved by the order of the Madras High Court dismissing the petitions under Section 482 Cr.P.C., the special leave petitions giving rise to these appeals were filed by the accused.

In the petition under Section 482, three contetions were raised-

(i) That the allegations are frivolous and without any basis;

(ii) Even according to the F.I.R., no incriminating acts were done within the jurisdiction of Trichy Police Station and the Court at Trichy and, therefore, the learned Magistrate lacked territorial jurisdiction to take cognizance of the offence;

(ii) Taking cognizance of the alleged offences at this stage is barred under Section 468(1) Cr.P.C. as it was beyond the period of limitation prescribed under Section 468(2).

 

The last two contentions are stressed before us. As far as the 1st appellant in the appeal arising out, of S.L.P.(Crl.) No. 290/2004 (Gowri Ramaswamy) is concerned, it is contended that the allegations in the F.I.R. do not make out any offence of which cognizance could be taken. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Before we proceed to deal with the two contentions relating to limitation and territorial jurisdiction, we would like to consider first the contention advanced on behalf of the appellant-Gowri Ramaswamy. Looking at the allegations in the F.I.R. and the contents of charge-sheet, we hold that none of the alleged offence, viz., Sections 498-A, 406 of the I.P.C. and Section 4 of the Dowry Prohibition Act are made out against her. She is the married sister of the informant’s husband who is undisputedly living in Delhi with her family. Assuming that during the relevant time, i.e., between March and October, 1997, when the 6th respondent (informant) lived in Mumbai in her marital home, the said lady stayed with them for some days, there is nothing in the complaint which connects her with an offence under Section 498-A or any other offence of which cognizance was taken. Certain acts of taunting and ill-treatment of informant by her sister-in- law (appellant) were alleged but they do not pertain to dowry demand or entrustment and misappropriation of property belonging to the informant. What was said against her in the F.I.R. is that on some occasions, she directed the complainant to wash W.C. and she used to abuse her and used to pass remarks such as “even if you have got much jewellery, you are our slave.” It is further stated in the report that Gowri would make wrong imputations to provoke her husband and would warn her that nobody could do anything to her family. These allegations, even if true, do not amount to harassment with a view to coercing the informant or her relation to meet an unlawful demand for any property or valuable security. At the most, the allegations reveal that her sister-in-law Gowri was insulting and making derogatory remarks against her and behaving rudely against her. Even acts of abetment in connection with unlawful demand for property/dowry are not alleged against her. The bald allegations made against her sister-in-law seem to suggest the anxiety of the informant to rope in as many of the husband’s relations as possible. Neither the F.I.R. nor the charge-sheet furnished the legal basis to the Magistrate to take cognizance of the offences alleged against the appellant Gowri Ramaswamy. The High Court ought not to have relegated her to the ordeal of trial. Accordingly, the proceedings against the appellant Gowri Ramaswamy are hereby quashed and her appeal stands allowed.

Now we have to deal with the case of other four appellants who, as already stated, have raised the questions of limitation and territorial jurisdiction.

On the point of limitation, we are of the view that the prosecution cannot be nullified at the very threshold on the ground that the prescribed period of limitation had expired. According to the learned counsel for the appellants, the alleged acts of cruelty giving rise to the offence under Section 498-A ceased on the exit of the informant from the matrimonial home on 2.10.1997 and no further acts of cruelty continued thereafter. The outer limit of time for taking cognizance would therefore be 3.10.2000, it is contended. However, at this juncture, we may clarify that there is an allegation in the F.I.R. that on 13th/14th of October, 1998, when the informant’s close relations met her in-laws at the hotel in Chennai, they made it clear that she will not be allowed to live with her husband in Mumbai unless she brought the demanded money and jewellery. Even going by this statement, the taking of cognizance on 13.2.2002 pursuant to the charge-sheet filed on 28.12.2001 would be beyond the period of limitation. The commencement of limitation could be taken as 2.10.1997 or at most 14.10.1998. As pointed out by this Court in Arun Vyas v. Anita Vyas, [1999] 4 SCC 690, the last act of cruelty would be the starting point of limitation. The three year period as per Section 468(2)(c) would expire by 14.10.2001 even if the latter date is taken into account. But that is not the end of the matter. We have to still consider whether the benefit of extended period of limitation could be given to the informant. True, the learned Magistrate should have paused to consider the question of limitation before taking congnizance and he should have addressed himself to the question whether there were grounds to extend the period of limitation. On account of failure to do so, we would have, in the normal course, quashed the order of the Magistrate taking cognizance and directed him to consider the question of applicability of Section 473. However, having regard to the facts and circumstances of the case, we are not inclined to exercise our jurisdiction under Article 136 of the Constitution to remit the matter to the trial court for taking a decision on this aspect. The fact remains that the complaint was lodged on 23.6.1999, that is to say, much before the expiry of the period of limitation and the F.I.R. was registered by the All Women Police Station, Tiruchirapalli on that day. A copy of the F.I.R. was sent to the Magistrate’s Court on the next day, i.e., on 24.6.1999. However, the process of investigation and filling of charge-sheet took its own time. The process of taking cognizance was consequentially delayed. There is also the further fact that the appellants filed Writ Petition (Crl.) No. 1719/2000 in the Bombay High Court for quashing the F.I.R. or in the alternative to direct its transfer to Mumbai. We are told that the High Court granted an ex-parte interim stay. On 20.8.2001, the writ petition was permitted to be withdrawn with liberty to file a fresh petition. The charge-sheet was filed four months thereafter. It is in this background that the delay has to be viewed. The approach the Court has to adopt in considering the question of limitation in regard to the matrimonial offences was highlighted by this Court in the case of Arun Vyas (supra). While pointing out in effect that the two limbs of the enabling provision under Section 473 are independent, this Court observed thus :

“14. …..The first limb confers power on every competent court to take cognizance of an offence after the period of limitation if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained and the second limb empowers such a court to take cognizance of an offence if it is satisfied on the facts and in the circumstances of the case that is is necessary so to do in the interests of justice. It is true that the expression “in the interest of justice” in Section 473 cannot be interpreted to mean in the interest of prosecution. What the court has to see is “interest of justice”. The interest of justice demands that the court should protect the oppressed and punish the oppressor/offender. In complaints under Section 498-A the wife will invariably be oppressed, having been subjected to cruelty by the husband and the in-laws. It is, therefore, appropriate for the courts, in case of delayed complaints, to construe liberally Section 473 CrPc in favour of a wife who is subjected to cruelty if on the facts and in the circumstances of the case it is necessary so to do in the interests of justice. When the conduct of the accused is such that applying the rule of limitation will give an unfair advantage to him or result in miscarriage of justice, the court may take cognizance of an offence after the expiry of the period of limitation in the interests of justice. This is only illustrative, not exhaustive. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

No doubt, the Court directed the Magistrate to consider the question of limitation taking note of Section 473 Cr.P.C. in the light of the observations made in the judgment. In the instant case, however, the same course need not be adopted. That was a case in which the complaint alleging ofence under Section 498-A itself was filed nearly 7 years after the aggrieved spouse was kept out of the matrimonial home without any explanation for delay. That is why the matter was remanded to the Magistrate for reconsideration. In the present case, such a course is unnecessary and inexpedient. Adopting the liberal approach that has been stressed by this Court in the afore-mentioned decision and considering the facts apparent from the record as discussed supra, we feel that it is a fit case where the benefit of Section 473 Cr.P.C. should be extended to the informant-lady and there is no need to prolong the controversy on the point of limitation.

The next controversy arising in the case is about the territorial jurisdiction of the Magistrate’s Court at Tiruchirapally to try the cases. As already noted, the High Court was of the view that the questions raised in the petition cannot be decided before trial. It is contended by the learned counsel for the appellants tht the issue relating to the place of trial can be decided even at this stage without going beyond the averments in the complaint filed by the respondents and the High Court should have, therefore, decided this point of jurisdiction, when it is raised before the trial has commenced. Our attention has been drawn to a recent decision of this Court in Y. Abraham Ajit and Ors. v. Inspector of Police Chennai and Anr., [2004] 8 SCC 100. In that case, the Madras High Court refused to interfere under Section 482 Cr.P.C. when the issue of territorial jurisdiction of the concerned Magistrate to take cognizance of the offence was raised. This Court did not endorse the approach of the High Court for not recording the finding on the question of jurisdiction. On reading the allegations in the complaint, the court came to the conclusion that no part of the cause of action arose in Chennai and therefore the Metropolitan Magistrate at Chennai could not have taken cognizance and issued summons. On this ground, the criminal proceedings were quashed and the complaint was directed to be returned to respondent who was given liberty to file the same in an appropriate court. That was also a case of complaint for an offence under Section 498-A and Cr.P.C. filed by the wife against the appellant therein.

In the view we are taking, it is not necessary for us to delve into the question of territorial jurisdiction of the Court at Trichy in detail. Suffice it to say that on looking at the complaint at its face value, the offences alleged cannot be said to have been committed wholly or parlty within the local jurisdiction of the Magistrate’s Court at Tricht. Prima facie, none of the ingredients constituting the offence can be said to have occurred within the local jurisdiction of that Court. Almost all the allegations pertain to acts of cruelty for the purpose of extracting additional property as dowry while she was in the matrimonial home at Mumbai and the alleged acts of misappropriation of her movable property at Mumbai, However, there is one allegation relevant to Section 498-A from which it could be inferred that one of the acts giving rise to the offence under the said Section had taken place in Chennai. It is alleged that when the relations of the informant met her in-laws at a hotel in Chennai where they were staying on 13.10.1998, there was again a demand for dowry and a threat to torture her in case she was sent back to Mumbai without the money and articles demanded.

Thus the alleged acts which according to the petitioner constitute the offences under Section 498-A and 406 were done by the accused mostly in Mumbai and partly in Chennai. Prima facie, there is nothing in the entire complaint which goes to show that any acts constituting the alleged offences were at all committed at Trichy.

One more relevant aspect to be noticed is that the informant-wife filed Transfer Petition No. 603/2003 seeking transfer of MJ Petition No. A416/2003 on the file of Family Court at Bandra, Mumbai filed by the husband for dissolution of the marriage to the Family Court at chennai to be heard along with OP No. 2071 of 1999 on the file of II Additional Family Court at Chennai (since disposed of). It appears that on an earlier occasion, the petition filed by the wife for restitution of conjugal right in the sub-Court at Trichy was transferred to the Family Court at Chennai at the instance of the wife by an order of this Court dated 29.10.1999. That petition was ultimately allowed by the Family Court and the Execution Petition was transmitted to the Mumbai Court. A Civil Miscellaneous Appeal (unnumbered so far) against the decree of the Family Court, Chennai is said to be pending in the Madras High Court.

Having regard to the above facts viz., background and history of litigation, the prima facie, view taken by us on the point of territorial jurisdiction and taking an overall view of the convenience of both the parties, we are of the view that the criminal case arising out of CC No. 72/2002 on the file of the Judicial Magistrate III, Tiruchirapally and the Matrimonial Case filed by the husband (first petitioner in the Appeal No. 372/2005, corresponding to SLP 5735 of 2003) at Mumbai should both be tried in Chennai. The criminal case shall be transferred from the Court of Judicial Magistrate Tiruchirapally to the Chief Judicial Magistrate at Chennai who may either decide it himself or assign it to one of the Judicial Magistrates in Chennai. The MJ Petition No. A416/2003 pending in the Family Court at Bandra, Mumbai shall be transferred to the Principal Family Court at chennai. Both these cases shall be decided expeditiously without avoidable delay. Accordingly, the appeal filed by Ramesh and three others and the Transfer Petition are disposed of. The appeal arising out of SLP(Crl.) No. 290/2004 filed by Gauri Ramaswamy and another is partly allowed by quasing the proceedings insofar as Gauri Ramaswamy is concerned. No Costs.

 

Before closing, we may record the fact that the case was adjourned for considerable time in the hope that the parties will reach the settlement but it could not take place as the counsel appearing for the complainant- lady stated that she was keen on going back to resume marital ties while pursuing the criminal case against the hunband and others.

*****************************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.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE

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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…” !!

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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

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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

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