Tag Archives: smart NRI doesn’t return to India after 498a

498a on A2,A3 quashed as wife taken Dvrc&never examied,no CG sanction.Smart husband still @USA.Madras HC

Good recent MADRAS HC case for 498a hit NRIs

Husband continues abroad while rest get 498a quashed. Husband has also fought and taken divorce abroad, NOT even attended divorce case in India !! However USE with a LOT of caution !!

  • Marriage solemnized at USA
  • all alleged cruelty seems to have happened at USA
  • Still, Wife’s father files 498a in India against husband and others
  • Finally husband and wife fight out divorce in California, USA & US court grants them divorce
  • Now A 2 and A 3 get the 498a case quashed against them
  • they argue that central govt permission was NOT taken before taking cognizance (for offenses abroad) and the wife was never examined etc !!
  • Madras HC grants them quash
  • Looks like the smart husband just let the 498a case die it’s natural death and never contested it in India !!

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:05.03.2015

CORAM

THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN

CRL.O.P.No.172 of 2012
and
M.P.Nos.1 and 4 of 2012

1. Deepak Chandrasekar
2. Mrs. Savithri Chandrasekar …Petitioners

Vs.

1.State Rep. By Inspector of Police,
W-22, All Women Police Station,
Mylapore, Chennai 600 004.

2.S. Raghuram

3.Gayathri Raghuram ...Respondents

PRAYER: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure to call for the entire records pending in C.C.No.251 of 2008 from the learned XVIII Metropolitan Magistrate, Saidapet, hear the counsel for the petitioners and quash the Charge Sheet (Final Report) filed by the first respondent in Cr.No.8 of 2007 of W-22, All Woman Police Station, Mylapore, Chennai.

For petitioners : M/s. A.L.Somasundaram for M/s. Lakshmipriya Associates

For RR1 : Mr.M. Maharaja

For RR2 : No appearance

O R D E R

Heard the learned counsel for the petitioners and there is no representation for the respondents.

  1. It is submitted by the learned counsel for the petitioners that the petitioners are A2 and A3 and chargesheet was filed in C.C.No.251/2008 on the file of learned XVIII Metropolitan Magistrate, Saidapet, against the petitioner and one another for offences under Sections 498(A), 406 IPC and 506(i) and 4 of the DP Act.
  2. It is submitted by the learned counsel for the petitioners that the case was registered on the complaint of Mr.S.Raghuram whose daughter was given in marriage to the first petitioner and due to misunderstanding between the husband and wife, the complaint was given by Mr.S.Raghuram and on that basis, after investigation, chargesheet was filed against the petitioners and also against one another person. He further submitted that during the pendency of the investigation, the first petitioner filed divorce petition before the Hon’ble Supreme Court of California in case # 107FL 140863 and the third respondent, wife of the first petitioner entered appearance through counsel before the Hon’ble Supreme Court of California and an order was passed on 22.01.2008 dissolving the marriage between the first petitioner and third respondent. The third respondent also received through her counsel all personal effects on 23.10.2007 and 24.10.2007 as stated in the typed set of papers in pg-26 to 28. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

  3. It is submitted that the third respondent also filed FCOP.No. 3677 of 2009 for dissolution of marriage between her and first petitioner and the first respondent remained absent and divorce was granted by order dated 24.01.2012. He further submitted that the first petitioner also filed application for divorce before the Hon’ble Supreme Court of California on the ground of cruelty and hearing both parties, the marriage was dissolved by the Hon’ble Supreme Court of California. After dissolution of marriage took place, by the said order the third respondent filed FCOP.No.3677 of 2009 on the ground of cruelty and as marriage was already dissolved by the Hon’ble Supreme Court of California, the first petitioner did not enter appearance in FCOP.No.3677 of 2009 as it amounted to futile exercise. He therefore submitted that divorce granted on the ground of cruelty by the Principal Family Court, Chennai in FCOP.3677 of 2009 cannot be considered as a case for cruelty committed by the petitioners.

  4. The learned counsel for the petitioners further submitted that even according to the prosecution, the marriage was registered at USA and the alleged cruelty took place in USA and no part of the cause of action arose at India and without previous sanction from Central Government, the prosecution itself is also not maintainable. He therefore, submitted that having regard to the dissolution of marriage and settlement of alimony as per the order of the Hon’ble Supreme Court of California, nothing survives and the charge sheet may be quashed.

  5. It is submitted by the second respondent that the Defacto complainant was dead and third respondent, the former wife of the first petitioner was also served and she was also represented by the counsel and there was no representation for the third respondent on 23.02.2015 and even today, there is no representation for the third respondent.

  6. The learned Additional Public Prosecutor submitted that having regard to the divorce granted by the Hon’ble Supreme Court of California and by the Principal Family Court, Chennai, suitable orders may be passed in the quash petition.

  7. The learned counsel for the petitioners relied upon the judgments reported in (1993) 3 SCC 609; (Ajay Aggarwal Vs. Union of India and Others) (2008) 6 SCC 789 (Fatma Bibi Ahmed Patel Vs. State of Gujarat and Another) 1966 Crl.L.J. 366 (Vol.72,C.N.117) (The State, Appellant Vs. Om Parkash Salig Ram, Respondent) and AIR (32) 1945 Oudh 231 (Mohammad Zaman Accused Vs. Emperor) in support of his contention, that when the allegation of cruelty took place in a foreign country without sanction from the Central Government, case cannot be filed in India. He also further relied upon the judgment reported in (2012) 1 MLJ (Crl) 341 (SC) ( Thota Venkateswarlu Vs. State of A.P. Tr. Princl. Section and Another) to the same effect.

  8. It is seen from the judgment reported in (2012) 1 MLJ (Crl) 341 (SC) ( Thota Venkateswarlu Vs. State of A.P. Tr. Princl. Section and Another) that in respect of offences committed outside India, the enquiry cannot be proceeded with nor the accused be tried without sanction from Central Government as per Proviso 188 of Cr.P.C. As per judgment reported in (1993) 3 SCC 609; (Ajay Aggarwal Vs. Union of India and Others) sanction can be obtained before the commencement of trial. He further submitted that the respondent / first respondent police did not examine the third respondent while filing charge sheet and the statement of other witnesses also disclosed that they heard from the third respondent about the alleged dowry demand and cruelty meted out to her and in the absence of any examination of the third respondent, who has stated that she was treated cruelly and dowry was demanded from her, the police should not have filed chargesheet against the petitioners without examining her. He also submitted that this Court in CRL.O.P.No.5887 of 2008 quashed the charges as against the first accused, D.V. Chandrasekaran, who was arrayed as first accused in this case. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

  9. As rightly submitted by the learned counsel for the petitioners, the proper person to speak about the cruelty, dowry demand is the third respondent who was the wife of the first petitioner herein and admittedly she was not examined and she was not cited as witnesses in the chargesheet.

  10. The statements of other witnessess are also to the effect that they heard Gayathri Raghuram about the treatment meted out to her. Therefore, without examining the third respondent, the police should not have filed the charge sheet against the petitioners. Further having regard to the statements of witnessess that the occurrence took place outside India, the prosecution without obtaining sanction from Central Government as per Proviso 188 is also not proper. Further, the marriage between the first petitioner and the third respondent was already dissolved and in the proceedings before the Hon’ble Supreme Court of California on the petition filed by the first respondent, the marriage was dissolved on the ground of cruelty committed by the third respondent and the third respondent appeared and contested the said proceedings and thereafter only, the third respondent filed FCOP.No.3377 of 2009 before the Family Court, Chennai for divorce on the ground of cruelty and that was also ordered ex parte.

  11. Considering all these aspects, taking cognizance of the offence without sanction from the Central Government is prohibited and the first respondent police also should not have filed chargesheet without examining the third respondent who was the primary witness to cruelty and dowry demand. Hence, the petition is allowed and the case in C.C.No.251/2008 on the file of the learned XVIII Metropolitan Magistrate, Saidapet at Chennai is quashed. Consequently, connected miscellaneous petitions are closed.

05.03.2015
Index :Yes/No
Internet :Yes/No

gv

To

1.The learned XVIII Metropolitan Magistrate, Saidapet.

  1. The State Rep. By Inspector of Police,
    W-22, All Women Police Station,
    Mylapore, Chennai 600 004.

R.S.RAMANATHAN,J.

CRL.O.P.No.172 of 2012

and

M.P.Nos.1 and 4 of 2012

05.03.2015

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


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Smart NRI does NOT return 2 India aftr 498a. Gets case quashed aftr divorce &wife’s remarriage! GujHC

“…It appears that although charge-sheet was filed, yet the applicant could not be tried as he is still in U.K. On the other hand, the other co-accused came to be tried by the Court below and were acquitted of all the charges. I am told that against such order of acquittal the State preferred an acquittal appeal, which also came to be dismissed. Mr. Ansari has brought to my notice that the respondent No.2 had filed a petition for divorce in the Court of the learned Additional Senior Civil Judge, Rajkot and the Court has passed a decree to dissolve the marriage. ….”

Finally the court quashes this 498A also !!

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 14056 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE J.B.PARDIWALA
**********************************************************
VIMALKUMAR RAJNIKANT THAKKAR….Applicant(s)
Versus
STATE OF GUJARAT & 1….Respondent(s)
**********************************************************
Appearance:
MR AFTABHUSEN ANSARI, ADVOCATE for the Applicant(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
**********************************************************

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 30/10/2015

ORAL JUDGMENT

1. By this application under section 482 of the Code of Criminal Procedure, 1973, the applicant-original accused seeks to invoke the inherent powers of this Court praying for quashing of the first information report registered as C.R. No.I- 306 of 2008 with the City Police Station, Vadodara for the offence punishable under sections 498A, 406, 420, 504, 506(2) read with 114 of the Indian Penal Code and sections 3 and 4 of the Dowry Prohibition Act.

2. The respondent No.2, original first informant, although served with the notice of rule issued by this Court, has chosen not to appear and oppose this petition either in person or through an advocate.

3. On 5th November, 2014, the following order was passed by this Court;

“Mr. Ansari, the learned advocate appearing on behalf of the petitioner – original accused, submits that the marriage of the applicant was solemnized on 14.12.2007 with the respondent No.2 at Rajkot. Thereafter, on 31.12.2007, the applicant left for U.K. In the year 2008, the respondent No.2 joined the applicant herein at U.K. Thereafter, the respondent No.2 came back to India and lodged the first information report against the applicant herein and his parents.

It appears that although charge-sheet was filed, yet the applicant could not be tried as he is still in U.K. On the other hand, the other co-accused came to be tried by the Court below and were acquitted of all the charges. I am told that against such order of acquittal the State preferred an acquittal appeal, which also came to be dismissed. Mr. Ansari has brought to my notice that the respondent No.2 had filed a petition for divorce in the Court of the learned Additional Senior Civil Judge, Rajkot and the Court has passed a decree to dissolve the marriage. According to Mr. Ansari, in wake of all these developments, probably the respondent No.2 may not be interested to pursue further with the complaint so far as the applicant is concerned.

Issue notice to the respondents, returnable on 27.11.2014. Mr. Shah, the learned APP waives service of notice for and on behalf of the State of Gujarat. The respondent No.2 be served directly through the Investigating Officer of the concerned Police Station. Direct service permitted.”

4. It appears that all other family members of the husband were tried and acquitted by the trial court. The State of Gujarat preferred an acquittal appeal which was also ordered to be dismissed by this Court. I am told that the marriage has also been dissolved by a decree passed by the Civil Court. I am told that the respondent No.2 has got married with another person. This is probably the reason why she is now not interested in the matter. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

5. Even otherwise, none of the ingredients to constitute the offence of cruelty punishable under section 498A of the Indian Penal Code are spelt out. The marriage was solemnized on 14th December, 2007. On 31st December, 2007, the applicant left for U.K. In the year 2008, the respondent No.2 joined the applicant at U.K. and on 24th December, 2008, the first information report was lodged. There is hardly any period which they spent as husband and wife. The case seems to be one of marital maladjustment.

6. In the result, this application is allowed. The further proceedings of the first information report registered as C.R. No.I-306 of 2008 with the City Police Station, Vadodara are hereby ordered to be quashed. Rule is made absolute accordingly.

Direct service is permitted.

(J.B.PARDIWALA, J.)

Vahid

*****************************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 with necessary Emphasis, Re formatting
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