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Rajasthan High Court · body

1998 DIGILAW 1303 (RAJ)

Gyan Singh v. State of Rajasthan

1998-12-02

G.L.GUPTA

body1998
Honble GUPTA, J.–The subject-matter of the above two miscellaneous petitions is FIR No.250/97 of Police Station, Raisingh Nagar registered u/SS. 498-A & 406 IPC. Petition No. 671/96 has been preferred for quashing the FIR and petition No. 911/97 has been filed seeking the modification of the bail order dated 9.7.1997 whereby the learned Addl. Sessions Judge imposed the condition that petitioner - Gyan Singhs passport shall remain deposited in the trial Court. (2). Mr. Kharlia, learned counsel for the petitioner, contended that the contents of the FIR clearly shows that the alleged cruelty had taken place on foreign land and not within the territorial jurisdiction of the concerned police station. He pointed out that the petitioner is foreign national and Ranjandeep alias Ranju Bala who is said to have been subjected to cruelty, is also a foreign citizen and contended that the Indian courts cannot take cognizance and the police has got no power to investigate the matter. He canvassed that the FIR does not disclose that Ranju Bala ever demanded her property from the petitioner and, therefore, the offence u/S. 406 IPC is not made out and the FIR should be quashed on that ground also. Mr. Kharlia further pointed out that before the FIR was lodged, divorce petition was filed in a Court in England on 3.6.1997 and preliminary decree was passed on 22.7.1997 and the marriage of Ranju Bala and Bakhtawar Singh stands dissolved by the final decree dt. 11.9.1997 and Ranju Bala has been handed over her entire property on 23.5.1998. Referring to the copies of the certain documents, he conten- ded that the dispute between the parties does to survive and the investigation as also proceedings before the Court, if launched, will be abuse of the process of the Court. He placed reliance on the cases of Central Bank of India Ltd. vs. Ram Narain (1), Bijoyanand Patnaik vs. Mrs. K.A.A. Brinnand (2), Samarudeen vs. Assistant Director of Enforecment (3) and Madhu Sharma vs. Dr. M.L. Sharma (4). (3). Mr. Garg, on the other hand, contended that the FIR can be quashed only on the grounds enumerated in the case of State of Haryana vs. Bhajan Lal (5) and as the case does not fall in any of the grounds, the petition should be dismissed. M.L. Sharma (4). (3). Mr. Garg, on the other hand, contended that the FIR can be quashed only on the grounds enumerated in the case of State of Haryana vs. Bhajan Lal (5) and as the case does not fall in any of the grounds, the petition should be dismissed. He emphasised that the offence of cruelty is a continuing offence and even if some part of the cause of action arose in the territorial jurisdiction of the Court of Raisingh Nagar the police is well within its power to investigate the matter. He submitted that in the FIR it has been stated that the property given in the marriage of Ranju Bala was demanded by her father and this should be considered as demand by the father on behalf of his daughter. His further contention was that even on assuming that after the registration of the case, the marriage has been dissolved the proceed- ings should not be quashed as the offence was committed before the decree of divorce was passed. His submission was that even if the petitioner and Ranju Bala are foreign nationals, the Court of Raisingh Nagar has got jurisdiction to take cognizance and the police has jurisdiction to investigate the matter by virtue of Sec. 2 of the IPC. He placed reliance on the cases of Mabarik Ali Ahmed vs. State of Bom- bay (6), Neeraj Garg vs. State of Raj. (7), Smt. Sujata Mukherjee vs. P.Kumar (8), Jahangeer Jova vs. State of Raj. (9), State of Haryana vs. Bhajan Lal (10) and Rupan Deol vs. K.P.S.Gill (11). (4). I have given the matter my anxious consideration. First, it is to be seen whether on the ground that the petitioner is a foreign national, the F.I.R. can be quashed. (5). Section 2 of the IPC reads as follows :- ``2, Punishment of offences committed within India-Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India. This section makes it clear that every `person, may be Indian citizen or a foreign national, is liable to punishment under the IPC if the offence is committed in India. Sec.4 of the IPC, relied on by Mr. Kharlia is also reproduced hereunder :- ``4. This section makes it clear that every `person, may be Indian citizen or a foreign national, is liable to punishment under the IPC if the offence is committed in India. Sec.4 of the IPC, relied on by Mr. Kharlia is also reproduced hereunder :- ``4. Extension of Code to extra-territorial offences-The provisions of this Code apply also to any offence committed- (1) any citizen of India in any place without and beyond India; (2) any person on any ship or aircraft registered in India wherever it may be. Explanation - In this section the word ``offence includes every act committed outside India which, if committed in India, would be punishable under this Code. Mr. Kharlias contention was that this section permits the punishment under the Code only for the citizens of India. True it is, this section says that if a citizen of India in any place even beyond India commits offence, he can be punished under the IPC but the section cannot be interpreted to mean that if a foreign national, commits offence in India, cannot be tried and punished under the IPC. For a person, may be a foreign national, who commits offence in India, it is Sec.2 which is relevant and not Sec.4 IPC. Section 4 applies when Indian Nationals commit offence in foreign country or on any ship or aircraft registered in India, wherever it may be. (6). The case of Central Bank of India (supra), cited by Mr. Kharlia, was decided on the basis of the provisions of Sec. 188 Cr.P.C. and Sec.4 of the IPC. That case was the case of a person who was not the citizen of India at the time of com- mitting the offence and the offence was committed on foreign land but after the commission of offence he had acquired the Indian citizenship. The question for consideration was whether he could be punished under the Indian law. The Apex Court held that it was not possible because the subsequent acquisition of Indian domicile cannot affect the question of jurisdiction of Courts for trying him for cri- mes committed by him while he did not possess an Indian domicile. The proposition laid down in that case is not of any assistance to the petitioner. The other cases relied on by Mr. Kharlia do not render any assistance to the petitioner in the facts and circumstances of the case. The proposition laid down in that case is not of any assistance to the petitioner. The other cases relied on by Mr. Kharlia do not render any assistance to the petitioner in the facts and circumstances of the case. The case of Mabarik Ali Ahmed (supra), cited by Mr. Garg, deals Sec. 2 and Sec.3 of the IPC. It has been held by their lordships that the use of the phrase ``every person in Sec.2 as contrast with the use of the phrase ``any person in Sec.3 as well as Sec.4(2) of the Code is indicative of the idea that to the extent that the guilt for an offence, committed within India, can be attributed to a person, every such person, without exception is liable for punishment under the Code and the plain meaning of the phrase ``every person is that it comprehends all persons without limitation and irrespective of nationality allegiance, rank, status, caste, colour or creed. The clearly means that if foreign national commits offence within India he is liable to be punished under the IPC. This being the legal position, on the ground that the petitioner is a foreign national, the FIR cannot be quashed. (7). It is next to be seen whether on the ground that in the FIR it is not stated that the property given in the marriage of Ranju Bala was demanded by her, the FIR should be quashed. The two essential ingredients of Sec. 406 IPC are the there should be entrustment of the property and then there should be dishonest misappropriation of the same. It has been stated in the FIR that in the marriage of Ranju Bala with Bakhtavar Singh, valuables and money shown in the list appended to the FIR were given to the petitioner and others. It is further averred that when the first informant was insulted by the petitioner, he demanded the property of his daughter to which the petitioner replied that he would not return the same. Thus, there are allegations in the complaint that the petitioner had refused to give back the property of Ranju Bala. (8). It is not proper to express any opinion on the point that the demand by the father, of the property given in dowry in the marriage of his daughter, would amount to the demand on behalf of his daughter or not. (8). It is not proper to express any opinion on the point that the demand by the father, of the property given in dowry in the marriage of his daughter, would amount to the demand on behalf of his daughter or not. At this stage, only it is relevant that in the FIR it has been stated that the petitioner refused to give back the property of Ranju Bala. It may be that the demand and denial are said to have taken place in Punjab but that would not oust the jurisdiction of the Raisingh Nagar police u/S. 181(4) Cr.P.C. an offence of misappropriation or criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject to the offence was received or retained, or was required to be returned or accounted for by the accused person. It is obvious that the Court in whose local jurisdiction the property was received also has got jurisdiction to try the offence. It was not disputed at the time of arguments that the marriage of Ranju Bala with Bakhtawar Singh had taken place at Raisingh Nagar. At para No.3 of the FIR it is stated that the property which was given in the dowry at the time of marriage is shown in the appended list. Thus, the allegations are that the property was given to the petitioner at Raisingh Nagar. (9). The powers of the police to investigate the cognizable offence are contained in Sec.156 Cr.P.C. wherein it has been provided that if the Court has got jurisdiction to enquire or try the offence the police station has got jurisdiction to investigation the cognizable offence. As the part of the property is said to have been received by the petitioner in the territorial jurisdiction of Raisingh Nagar Court, the Raisingh Nagar Police Station has clearly got the jurisdiction to investigate the matter. (10). As the part of the property is said to have been received by the petitioner in the territorial jurisdiction of Raisingh Nagar Court, the Raisingh Nagar Police Station has clearly got the jurisdiction to investigate the matter. (10). As to the cruelty, the allegations contained at para No.6 of the petition/complaint are as follows :- ^^;g fd izkFkhZ dk uoEcj] 1995 dks thi ls ,DlhMsUV gks x;k Fkk rks izkFkhZ dh iq=h dks eqyfteku ua- 2 o 3 tks lkl llqj gS tuojh] 1996 esa ysdj esjs ikl feyus dk cgkuk djds vk;s vkSj esjh iq=h dks ;gka jk;flag uxj ;g dg dj NksM+ x;s fd izkFkhZ dh iq=h mldk ifr tks isks ls MkDVj gS ugha j[kuk pkgrk D;ksafd izkFkhZ dh iq=h dk mlds lkFk dksbZ eqdkcyk ugha gS o mls vU; txgksa ls vPNs fjrs fey jgs gSa o cgqr T;knk /ku ns jgs gSaA** It is thus alleged that the petitioner left Ranju Bala at the house of first informant telling that her husband did not want to keep her as his wife as he was a doctor and was getting better spouse and more wealth. (11). The contention of Mr. Garg was that telling the father of Ranju Bala that her husband was a doctor and she was not of his status and he did not want to keep her as his wife, coupled with the facts that he was in touch of other lady for marriage had caused mental cruelty to Ranju Bala which was likely to driver her to commit suicide or to cause grave injury or danger to her health. It is not proper to express definite opinion on the question at this stage as it may adversely affect the investi- gation and trial of the case. But it is obvious that there are allegations in the FIR that Ranju Bala was subjected to cruelty at Raisingh Nagar. (12). In this connection, the contention of Mr. Kharlia was that one line, written in FIR, does not give jurisdiction to the Court as cruelty is said to have taken place in England and the first informant had come to know about the said cruelty by tele- phonic message. (12). In this connection, the contention of Mr. Kharlia was that one line, written in FIR, does not give jurisdiction to the Court as cruelty is said to have taken place in England and the first informant had come to know about the said cruelty by tele- phonic message. This contention cannot be upheld in view of the express provision in Sec.178(b) Cr.P.C. Even if small part of occurrence had taken place in the territorial jurisdiction of the Court at Raisingh Nagar, the police of Raisingh Nagar can investigate the case. (13). Mr. Kharlias further contention was that the allegations contained in para No.6 of the report are totally false. The falsity or the correctness of the allegations cannot be gone into at this stage of the case. In the case of State of Haryana vs. Bhajanlal (supra), it has been clearly held by their lordships that the High Court will not be justified in embarking as to the reliability or defence or otherwise of the allegations made in the FIR or the complaint and that the extra or- dinary or inherent power did not confer an arbitrary jurisdiction to act according to its whim and caprices. It has been clearly laid down that the FIR can be quashed only when the allegations in the first information report do not disclose cognizable offence justifying the investigation by the police officers. It is certainly not the case where the allegations made in the FIR do not disclose the commission of a cogni- zable offence. Also, it cannot be said that the allegations made in the FIR are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. At this stage, this also cannot be said that the criminal proceedings are manifestly attended with mala fide. The Apex Court in the case of Bhajanlal (supra) has appen- ded a note of caution by observing that the power of quashing the FIR should be exercised very sparingly and that too in the rarest of the rare case. At this stage, this also cannot be said that the criminal proceedings are manifestly attended with mala fide. The Apex Court in the case of Bhajanlal (supra) has appen- ded a note of caution by observing that the power of quashing the FIR should be exercised very sparingly and that too in the rarest of the rare case. The instant case does not fall in such category for the reasons that for the purpose of Sec. 406 IPC entrustment of property was in the territorial jurisdiction of the Court and the petitioner has refused to return the property and for the offence u/S. 498-A IPC, the allegations are that Ranju Bala had been subjected to cruelty by the petitioner in Raisingh Nagar. (14). It is not necessary to go into the correctness or otherwise of the state- ment made by Mr. Kharlia that the marriage of Ranju Bala with Bakhtawar Singh stands dissolved and that she has received all her property in England. Even if, for arguments sake, all these facts are accepted to be correct, the proceedings cannot be quashed as the subsequent conduct of the parties would be absolve the petitioner. (15). For the reasons stated above, the FIR cannot be quashed. (16). The second petition has been filed for getting the order of bail modified. Mr. Kharlia, pointing out, that the Addl. Sessions Judge has directed the deposit of the passport of the petitioner in the trial Court, contended that the petitioner being a foreign national, has got no place to live in India and it is causing a lot of incove- nience to him. He submitted that the passport be ordered to be delivered to him. It has to be accepted that the petitioner cannot be detailed in India for very long period. At the same time, the contention of Mr. Garg and the Public Prosecutor, that once the petitioner leaves India he may not appear to stand trial, is not without substance. Taking all the circumstances into consideration, it is thought proper to give some directions. (17). Consequently, the petition No. 671/97 is dismissed. In petition No. 911/96 it is directed that the police would complete the investigation and submit report u/S. 173 Cr.P.C. within eight weeks. Taking all the circumstances into consideration, it is thought proper to give some directions. (17). Consequently, the petition No. 671/97 is dismissed. In petition No. 911/96 it is directed that the police would complete the investigation and submit report u/S. 173 Cr.P.C. within eight weeks. In case, a charge-sheet is filed, or the Magistrate takes cognizance in the event of filing final report, the trial Court is directed to hold the trial expeditiously and decide the case within six months.