Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 2078 (RAJ)

Vishal Maheshwari v. State of Haryana

2005-08-05

K.S.RATHORE

body2005
Honble RATHORE, J.–Brief facts of the case are that the petitioner Vishal Maheshwari married the daughter of respondent No. 3 on 31.1.2004 at Jaipur. After marriage, the bride and the bridegroom were sent by the parents of the bridegroom to Europe for honeymoon and thereafter, the girl started residing at Malviya Nagar, Jaipur at her marital house. After some time of the marriage, misunderstanding cropped up between the husband and wife and as the situation become worse, the father of the girl thought it proper to bring his daughter to Karnal and the girl went to her parental house of Karnal on 15.7.2004. (2). The controversy arise when a criminal complaint (a regular FIR) bearing No. 423/2004 came to be registered at Police Station Gharaunda, Karnal, for the offences punishable under Sections 498-A, 406 and 506 IPC against the petitioners and this present petition has been filed invoking jurisdiction of Article 226 read with 227 of the Constitution of India for getting the FIR quashed. (3). The respondent raised preliminary objection regarding maintainability of this writ petition on the ground that the aforesaid FIR was lodged on the basis of compliant filed by respondent No. 3 in the court of Ilaqua Magistrate at Karnal who vide his order dated 5.11.2004 forwarded the same to the SHO PS Gharaunda (Karnal) for investigation. (4). During the course of investigation when the accused were sought to be interrogated by the Haryana Police, all the six accused persons namely; Vishal son of Anil Maheshwari, Anil son of late Shri RK Maheshwari, Smt. Mona wife of Anil Maheshwari, Rohit son of Anil Maheshwari, Gopal son of late Shri RK Maheshwari and Amit son of Gopal applied for grant of anticipatory bail to this Honble Court and this Court granted them only transitory bail for a period of four weeks by its order dated 8.12.2004 to enable all the accused to approach the court of competent jurisdiction in this State of Haryana within the period of four weeks and it was directed that this order of transitory bail would remain in force only upto 6.1.2005. (5). (5). All the aforesaid six accused persons applied for anticipatory bail in the court of Sessions Judge Karnal who vide his order dated 28.12.2004 accepted the anticipatory bail petition of accused Gopal, Amit and Rohit for a limited period of 40 days with a direction to approach the court of Ilaqua Magistrate for regular bail. Subsequently, these three accused filed bail petition in the court of Ilaqua Magistrate who vide his order dated 18.1.2005 granted regular bail to these three accused. However, anticipatory bail for remaining three accused namely; Vishal, Anil and Smt. Mona was rejected. Out of these three, two accused persons namely; Anil and Smt. Mona Maheshwari approached the Honble Punjab and Haryana High Court at Chandigarh for anticipatory bail. During pendency of the aforesaid anticipatory bail before the Punjab and Haryana High Court, the petitioners filed present writ petition for quashing and setting aside the FIR No. 423/04 lodged at Police Station Gharaunda, District Karnal and this court has passed an ex parte interim order dated 10.1.2005 to the effect that in the meantime the petitioners may not be arrested pursuant to FIR No. 423/2004 dated 10.11.2004. (6). The bail application pending before the Punjab & Haryana High Court was withdrawn by the petitioners on 27.1.2005. (7). By placing the aforesaid facts, learned counsel for the respondents tried to make out the case that the petitioners are guilty of playing hide and seek game and concealing material facts from this court. It is given out that the petitioners also moved a petition under section 407 read with section 482 Cr.P.C. for transferring the trial of the case bearing FIR No. 423/04 dated 10.11.2004 under sections 498-A/406/506 IPC registered at Police Station Gharaunda, Tehsil & District Karnal (Haryana), pending in the court of Judicial Magistrate Ist Class, Karnal to any other court of competent jurisdiction at Rohtak, Gurgaon or any other court outside the Karnal Sessions Division and this petition is registered as criminal misc. No. 30612/05 ``Vishal Maheshwari & Others vs. State of Haryana & Another and same is pending with Punjab & Haryana High Court. (8). Learned counsel appearing for the petitioners Mr. No. 30612/05 ``Vishal Maheshwari & Others vs. State of Haryana & Another and same is pending with Punjab & Haryana High Court. (8). Learned counsel appearing for the petitioners Mr. Bajwa has raised several question of law to make out his case that this court has jurisdiction to quash and set aside the FIR lodged in the State of Haryana and referred several provisions of Cr.P.C. and more particularly sections 156, 157, 173, 178, 167, 170, 169 and 179 and he also referred sections 11, 12, 14, 15, 18, 81 and placed reliance on the judgment in the case Navinchandra N. Majithia vs. State of Maharashtra & Others reported in 2002(2) Supreme Court 136 wherein the Bombay High Court has held as under:– ``FIR registered at Shillong-Major portion of facts leading registration of FIR took place at Mumbai-Major portion of investigation of case under FIR has to be conducted at Mumbai itself-Mumbai High Court has jurisdiction to exercise power under Article 226 read with section 482 Cr.P.C.-Investigation transferred to Mumbai Police for further investigation. (9). And after placing reliance on this judgment Shri Bajwa submits that the marriage solemnized here at Jaipur and the husband and wife reside for some time in Malviya Nagar. Major portion of cause of action and the facts leading to registration of FIR took place at Jaipur and this court is having jurisdiction to hear the writ petition for quashing and setting aside the FIR. (10). He also placed reliance on the judgment of Honble Supreme Court in the case ``Ramesh & Others vs. State of Tamilnadu reported in 2005 Indlaw SC 173 wherein Honble the Supreme Court has held that ``prima facie there is nothing in entire complaint which goes to show that any acts constituting alleged offence were at all committed at Trichi-proceedings against appellant Gowri Ramaswamy quashed and her appeal stands allowed. (11). Placing reliance on this judgment Mr. Bajwa submits that at Gharaunda an industry belongs to respondent whereas the parents of the girl reside in Karnal. (11). Placing reliance on this judgment Mr. Bajwa submits that at Gharaunda an industry belongs to respondent whereas the parents of the girl reside in Karnal. Thus Gauranda police station has no right to investigate into the matter and the court of Karnal also not having jurisdiction to issue direction to the Police to investigate into the matter under section 156(3) Cr.P.C. And same view has been taken by Honble the Supreme Court in the case ``Y. Abraham Ajith & Others vs. Inspector of Police, Chennai & Another reported in 2004 Indlaw SC 625 wherein Honble the Supreme Court has held that ``in factual scenario disclosed by complainant in complaint petition, inevitable conclusion is that no part of cause action arose in Chennair and, therefore, concerned magistrate had no jurisdiction to deal with matter. (12). Similarly, Honble the Supreme Court in the case Union of India vs. Prakash P. Hinduja and Another reported in 2003(6) Supreme Court Cases 195 Honble the Supreme Court has observed as under:– ``If cognizance is in fact taken on a police report initiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial, which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice and that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial. (13). Learned Additional Advocate General Mr. Mohd. Rafiq in support of his arguments placed reliance on the judgment of Honble Supreme Court in the case Satvinder Kaur vs. State and Another reported in 1999(8) Supreme Court Cases 728 wherein Honble the Supreme Court has held that ``the FIR cannot be quashed on the ground that the Police Station did not have territorial jurisdiction to investigate the offence. (14). (14). He also placed reliance on the judgment of Honble Supreme Court in the case Kusum Ingots & Alloys Ltd. vs. Union of India and Another reported in 2004(6) SCC 254 wherein Honble the Supreme Court has observed as under:– ``cause of action in respect of a legislation will arise only when the provisions thereof or some of them which were implemented, give rise to civil consequences to the petitioner and further held that cause of action meaning the material facts which are imperative for the petitioner to allege and prove to obtain a decree in its favour constitute the cause of action, as what is necessary to be proved before the petitioner can obtain a writ, are the material/integral facts alone. It was further observed as under:– ``In order to confer jurisdiction on a High Court to entertain a writ petition it must disclose that the integral facts pleaded in support of the cause of action do constitute a cause so as to empower the Court to decide the dispute and that the entire or a part of it arose within its jurisdiction. The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court. (15). Heard rival submissions of the respective parties and carefully perused the provisions of Cr.P.C. referred by Mr. Bajwa and the judgments referred by the respective parties. (16). Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court. (15). Heard rival submissions of the respective parties and carefully perused the provisions of Cr.P.C. referred by Mr. Bajwa and the judgments referred by the respective parties. (16). It is no doubt that after a rift between husband and wife, the respondent wife started leaving with her parents and this fact is not disputed that the father took her to Karnal on 15.7.2004 and a private complaint was filed by the respondents against the petitioners before the Judicial Magistrate Karnal and after taking cognizance the Judicial Magistrate directed the Police Station Gauranda for registration and investigation of the case in view of section 156(3) Cr.P.C. It is also not disputed that transitory bail is granted by this court on 8.12.2004 for a period of four weeks and to file anticipatory bail before the appropriate court in the State of Haryana and same was filed before the Sessions Judge Karnal and out of six three were granted anticipatory bail as stated herein above and remaining three filed an application under section 438 for anticipatory bail before the Punjab & Haryana High Court. This court while issuing notice on 10.1.2005 directed the police not to arrest the petitioners pursuant to the FIR No. 423/2004 dated 10.11.2004 and after passing this order it is also not disputed that the petitioner withdraw the anticipatory bail which was pending before the Punjab & Haryana High Court. It is also not disputed that the petition under section 407 read with section 482 Cr.P.C. is still pending before the Punjab & Haryana High Court. In such circumstances, the petitioner conveniently choose to file this present petition for quashing the FIR No. 423/04 registered at Police Station Gauranda. (17). Upon careful perusal of the judgment of Satvinder Kaur and Kusum (supra), which is only on the ground of territorial jurisdiction the FIR lodged in the Haryana cannot be said to be a false at the face value. As admittedly part cause of action is available to the complainant at Haryana since the girl is residing with the parents and simply on the ground that the police station did not have the territorial jurisdiction to investigate the offence, the FIR cannot be quashed. As admittedly part cause of action is available to the complainant at Haryana since the girl is residing with the parents and simply on the ground that the police station did not have the territorial jurisdiction to investigate the offence, the FIR cannot be quashed. Further more, in the private complaint filed by the complainant in the court of Judicial Magistrate and who had taken the cognizance and directed the PS Gharaunda to register the FIR against the petitioners and the PS Gharaunda conducted the investigation. In such circumstances, I am fully convinced with the submission made on behalf of the respondent that this court has no jurisdiction to quash and set aside the FIR which has been lodged at PS Gharaunda (Karnal) and it is for the petitioners to file a petition before the Punjab & Haryana High Court seeking relief for quashing and setting aside the FIR if the petitioners chooses so. In any case this court do not want to interfere in the present matter and the writ petition fails being devoid of merit and is hereby dismissed.