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Allahabad High Court · body

2010 DIGILAW 380 (ALL)

Gauri Shankar Gupta and others v. State of U. P. and others

2010-01-29

RAM AUTAR SINGH

body2010
Ram Autar Singh, J. - I have heard Sri Dharmendra Singhal, learned Counsel for the applicants, Sri Ashish Agrawal and Sri V.K. Rai, learned Counsel for opposite party No. 2 as well as learned A.G.A. for opposite party No. 1 at length and perused the record. This application has been moved under section 482 Cr.P.C. with prayer to quash the impugned charge sheet submitted in criminal case No. 3329/9 of 2008 arising out of case crime No. 93 of 2008, under sec­tions 498-A, 323, 313 I.P.C. and section 3/4 Dowry Prohibition Act, P.S. Manila Thana Moradabad, District Moradabad pending in the Court of Additional Chief Judicial Magistrate, Court No. 9, Moradabad. The learned Counsel for the applicants has contended that an F.I.R. was lodged by opposite party No. 2 on 12.6.2008 alleging therein that she was married with applicant No. 3 Vipul Gupta on 2.12.2007 and there­after she went to Banglore with her hus­band where she came to know about the mean mentality of her husband and he started to make demand of dowry and deal her with cruelty in pursuance of demand of dowry. The opposite party No. 2 had also moved an application to S.H.O. of Police Micro Layout Police Station Bangalore City. The learned Counsel for the applicants has contended that a bare perusal of Annexure No. 2 to the affidavit completely belies the allegations contained in the F.I.R. and exis­tence of injuries as mentioned in fake medi­cal report was manufactured at Moradabad on 31.5.2008. She also made allegations about forcible abortion but the medical re­port did not corroborate these allegations. The opposite party No. 2 was examined thrice by the Investigating Officer on 14.6.2008, 18.6.2008 and 19.10.2008 respec­tively and he submitted charge sheet in a mechanical manner and cognizance thereon was also taken in arbitrary manner. 2. The learned Counsel for the appli­cants has further contended that a Criminal Misc. Writ Petition No. 12032 of 2008 was also moved by applicants No. 1 and 2 with prayer to stay the arrest which was allowed and their arrest was stayed. The statement of the victim recorded under section 161 Cr.P.C. and the application moved at Ban­glore as well as F.I.R. lodged at Moradabad have been found full of contradictions and they do not support each other. 3. The statement of the victim recorded under section 161 Cr.P.C. and the application moved at Ban­glore as well as F.I.R. lodged at Moradabad have been found full of contradictions and they do not support each other. 3. The learned Counsel for the appli­cants has further contended that assuming the allegations contained in the F.I.R. to be true, even then neither the Courts at Moradabad has territorial jurisdiction to take cognizance over the charge sheet nor the police of Mahila Thana, Moradabad was empowered to investigate the case and submit a charge-sheet and thus investiga­tion was conducted without jurisdiction and cognizance over the charge sheet was also taken without jurisdiction, because the Hon'ble Apex Court has laid down the law observing in various decisions that offence under section 498-A is not a continuing offence and thus it would be tried by the Court having jurisdiction where it is committed. The learned Counsel for the applicants has further contended that this fact is not disputed that applicants No. 1 and 2 have been residing at Delhi and applicant No. 3 resides at Bangalore and in view of the in­jury report the victim was not having these injuries at the time when she left her hus­band's house at Banglore on 30.5.2008 and when she came to Moradabad on 31.5.2008, the injury report was got manufactured with a view to give colour to her version narrated in the F.I.R. after legal advice with ulterior motive. The medical examination was conducted on 31.5.2008 at Moradabad and the delay of 12 days in lodging F.I.R. could not be explained either in the F.I.R. or elsewhere. The prosecution story is a bundle of lies which does not stand cor­roborated by any evidence and charge-sheet was submitted without proper inves­tigation at Bangalore i.e. place of the al­leged incident and thus the Court below failed to exercise the discretion judicially while the said Court did not have territorial jurisdiction over the matter. 4. The prosecution story is a bundle of lies which does not stand cor­roborated by any evidence and charge-sheet was submitted without proper inves­tigation at Bangalore i.e. place of the al­leged incident and thus the Court below failed to exercise the discretion judicially while the said Court did not have territorial jurisdiction over the matter. 4. The applicant No. 1, Gauri Shanker Gupta has filed his affidavit alongwith an-nexures in support of application under section 482 Cr.P.C. The opposite party No. 2, Smt. Riya Gupta alias Richa Agrawal has also filed counter affidavit controverting the allegations made in the affidavit of Sri Gauri Shanker Gupta alleging that the Court at Moradabad has territorial juris­diction to take cognizance on the charge sheet, because her engagement with appli­cant No. 3 was solemnized on 25.8.2007 in Hotel Paradise at Moradabad and on that occasion on the basis of demand made by the applicants, a sum of Rs. 2,51,000/- in cash alongwith gold ornaments and valu­able gifts were given to them at Moradabad. On 11.6.2008 the applicants arrived at her father's fitness center situ­ated at Harpal Nagar, Moradabad and made demand of additional dowry of Rs. 8 lacs. On 15.6.2008 the applicants further came to Moradabad, threatened opposite party No. 2 and asked her to withdraw the case against them. On 15.7.2008 the appli­cants again came to Moradabad for exert­ing pressure on her through some local politicians and ultimately they were ar­rested in Circuit House, Moradabad on 16.7.2008. Shri Pabhat Kumar Agrawal, father of opposite party No. 2 in his state­ment under section 161 Cr.P.C. categori­cally narrated the entire incident which took place at Moradabad and therefore the Courts at Moradabad got full territorial jurisdiction to take cognizance on the charge sheet submitted by the police of Manila Thana. Moradabad. 5. The opposite party No. 2 in para 12 of her affidavit categorically stated that on 25.8.2007, 31.5.2008, 11.6.2008, 15.6.2008 and 15/16.7.2008 the cause of action arose within the territorial jurisdiction of Moradabad Court. The demand of dowry was also made at Moradabad and most of the part of dowry was given to the appli­cants at Moradabad and the applicants also threatened her for dowry at Moradabad and in view of the provisions of sections 177,178 and 181(4) Cr.P.C. This case could be investigated and tried at Moradabad where part of the crime was committed. 6. 6. Learned Counsel for opposite party No. 2 has contended that the appli­cants are fully involved in making demand of dowry and the Court below has rightly taken cognizance against them. All the in­juries have been sustained by opposite party No. 2 in the evening of 30.5.2008 at Bangalore and when the local police at Bangalore failed to register the case against applicants No. 3, then opposite party No. 2 came to Delhi by Air and thereafter came to Moradabad on 31.5.2008 and got her medi­cally examined by the doctors of District Hospital, Moradabad on 31.5.2008. The opposite party No. 2 moved an application to S.S.P., Moradabad, on 2.6.2008 with re­quest to register her case against the appli­cants, the endorsement was made by the office of S.S.P., Moradabad on 2.6.2008 but the same was registered after delay of ten days and thus there was no delay on the part of opposite party No. 2 in lodging F.I.R. Learned Counsel for opposite party No. 2 has further contended that she lost her confidence after having suffered mental and physical cruelty caused by the appli­cants. The investigation was conducted by Investigating Officer properly as she went to Bangalore and recorded the statements of her landlord, namely, Sri Ranganathan and her neighbours, namely, Sri Purshottam Sainay and she also inquired about the alleged incident from the police of Banga­lore as described in case diary. Learned Counsel for opposite party No. 2 has further contended that this case was sent to Mediation Center for settlement of dispute between the parties and opposite party No. 2 appeared before the Mediation Center, Allahabad on 17.2.2009 and 1.3.2009 but the applicants did not turn up and ultimately mediation could not suc­ceed due to non appearance of the appli­cants. Learned Counsel for the applicants also informed the Mediation Center that the applicants were not interested in Me­diation and applicant No. 3 intended to get divorce from opposite party No. 2. 7. Learned Counsel for the appli­cants has relied on principle laid down by HonTile Apex Court in Y. Abraham Ajith and others v. Inspector of Police, Chennai and another, 2004 (50) ACC 210 (SC) wherein cognizance was taken by Magistrate in complaint case under sections 498-A and 406 I.P.C. and the writ petition was lodged to quash complaint and pro­ceedings on the ground that the concerned Magistrate had no territorial jurisdiction to entertain complaint. The Hon'ble Apex Court has observed that ordinary venue for trial of crime is the area in which, on the evidence, facts occur which alleged to constitute. Continuing offence is distin­guishable to one which is committed once and for all. In the said case the complainant left house of the accused husband on ac­count of alleged dowry demands. No alle­gation of any demand or commission of any act constituting offence at Chennai was made, logic of section 178(c) Cr.P.C. relat­ing to continuance offence could not be applied. No cause of action arose within the jurisdiction of Court where complaint was filed and concerned Magistrate at Chennai had no jurisdiction to deal with the matter and thus proceeding was liable to be quashed and complaint to be returned to be filed in a appropriate Court. 8. The learned Counsel for opposite party No. 2 has relied on the decision of Hon'ble Apex Court passed in the case of Asit Bhattacharjee v. Hanuman Prasad Ojha and others, 2007 (58) ACC 555 (SC) = 2007 (54) AIC 34 wherein following observation were made: "19.Chapter XIII provides for jurisdic­tion of the Criminal Court in in­quiries and trials. Section 177 pro­vides that every offence shall ordi­narily be inquired into and tried by a Court within whose local juris­diction it was committed. Section 178 provides for place of inquiry or trial. It provides: (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) when an offence is a 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, that it may be inquired into or tried by a Court having jurisdiction over any of such local areas. 20. Section 181 provides for place of trial in case of certain offences. 20. Section 181 provides for place of trial in case of certain offences. Sub-section (4) of section 181 was introduced in the Code of Criminal Procedure in 1973 as there existed conflict in the decisions of various High Courts as regards commis­sion of offence of criminal misap­propriation and criminal breach of trust and with that end in view, it was provided that such an offence may be inquired into or tried by the Court within whose jurisdiction the accused was bound by law or by contract to render accounts or return the entrusted property, but failed to discharge that obligation." 9. Learned Counsel for opposite party No. 2 has relied the decision passed in the case of Piyush Ramsinghani v. State of Raiasthan and another, 2009 (1) Criminal Court Cases 144 (Raj.) wherein the Ra-jasthan High Court has observed that in case of demand of dowry the Court at place where demand of dowry was made and threatenings were given by telephone would have jurisdiction to try the offence under sections 498-A and 406 I.P.C. In the said case the demand of dowry was made at Ajmer as well as Jaipur. It was found by the Revisional Court that on perusal of complaint it was apparent that threatening was given to the non-petitioner on tele­phone at Jaipur. The marriage between the parties took place at Ajmer and soon after the marriage, the non-petitioner was har­assed and she was not permitted to enter into the kitchen for the reason that she was suffering from some disease (acute sinusi­tis). It was also apparent from the allega­tions that initially a demand of Rs. 10 lacs was made and in marriage dowry of Rs. 4 lacs was paid. On 23.3.2006, the husband of the non-petitioner left her at her parental house and on the same day a sum of Rs. 1,10.000/- was paid and on 10.4.2006 when the husband came at Jaipur, a sum of Rs. 65,000/- was paid. In detail the description regarding harassment has been stated in the complaint. It is not necessary to exam­ine minutely each and every detail of the allegations. It is suffice to say that the learned trial Court has completely ignored the contents of the F.I.R./complaint and the learned revisional Court rightly found that the case could be tried at Jaipur also for the alleged commission of offence made in the complaint. 10. It is not necessary to exam­ine minutely each and every detail of the allegations. It is suffice to say that the learned trial Court has completely ignored the contents of the F.I.R./complaint and the learned revisional Court rightly found that the case could be tried at Jaipur also for the alleged commission of offence made in the complaint. 10. Sri V.K. Rai and Sri Ashish Agrawal, learned Counsel for opposite party No. 2 has relied on a judgment deliv­ered by this Court in the case of Deepak Joshi @ Dippou and others v. State of U.P. on 30.7.2008, wherein this Court has observed with regard to question of territorial juris­diction that offence under section 498-A I.P.C. is a continuing offence. Cruelty in­cludes the mental as well physical torture. It would be immaterial whether opposite party No. 2 living at her matrimonial house or at her parental house. It would be a con­tinuing offence. Refusal to return the arti­cles or stridhan would also constitute the mental cruelty, aggrieved party would be entitled to file F.I.R./complaint either at a place where demand of dowry was made and thereafter cruelty for non fulfilment of demand of dowry was caused and also at a place where wife was forced to live i.e. to say the consequence, that ensued as a result of cruelty. This Court also observed that by plain reading of section 177 Cr.P.C. to sec­tion 179 Cr.P.C. it would be clear that where an offence is continuing offence or where the consequence ensuing of an act is also an offence, the Court where such con­sequence has ensued, would also have territorial jurisdiction to try the offence. 11. In the present case the F.I.R. lodged by the informant disclosed that en­gagement about marriage of informant Riya Gupta @ Richa Agrawal r/o A02/1 Mansarovar. Colony, Moradabad with Vipul Gupta took place on 25.8.2007 in Hotel Paradise Moradabad. The informant Riya Gupta after having passed Engineer Course used to serve in Infosys Company, Chandigarh and her husband Vipul Gupta was working as engineer in Godul Com­pany, Bangalore. Their marriage took place on 2.12.2007 in which her father paid Rs. 10 lacs in cash as dowry to his father Gauri Shanker Gupta and mother Madhu Gupta. The informant Riya Gupta after having passed Engineer Course used to serve in Infosys Company, Chandigarh and her husband Vipul Gupta was working as engineer in Godul Com­pany, Bangalore. Their marriage took place on 2.12.2007 in which her father paid Rs. 10 lacs in cash as dowry to his father Gauri Shanker Gupta and mother Madhu Gupta. After their marriage the informant was also transferred to Bangalore where she started to live with her husband, came to know about his bad habits, dirty mentality, greedy nature and immoral character, due to which he had always been short of money. Her husband Vipul Gupta also got her signatures on blank cheques of her ac­count being maintained in I.C.I.C.I. Bank. Vipul Gupta also got Rs. 2 lacs from her father through the informant by beating her. The parents of Vipul Gupta continued to torture the informant by making further demand of dowry. Accused persons also caused her pregnancy to mis-carriage without her consent by administering medicines on her after getting the sex of the child tested by doctor and caused mental agony to her. Vipul Gupta prepared her objectionable photographs against her will and loaded the same in his Laptop with intention to blackmail her for bringing additional dowry from her parents. On 30.5.2008 the accused persons belaboured her, obtained her signatures on blank pa­pers, kept her ornaments, NSC, PAN Card and driving licence in their custody. 12. On careful perusal of the record it would show that engagement ceremony took place on 25.8.2007 at Moradabad where the applicants received cash and valuable articles as dowry from the parents of opposite party No. 2. The applicants again made demand of Rs. 8 lacs as dowry on 11.6.2008 at Moradabad and further made demand of dowry on 15.6.2008. The applicants also threatened opposite party No. 2 to withdraw the case registered against them at Moradabad and they fur­ther exerted pressure on opposite party No. 2 and her parents on 15.6.2008 for with­drawal of the case and ultimately the appli­cants were arrested at Circuit House, Moradabad on 16.7.2008. Thus the Magis­trate of Moradabad would have territorial jurisdiction to entertain the complaint or take cognizance on the charge-sheet filed by police of P.S. Mahila Thana, Moradabad because cause of action arose with in the territory of Moradabad on 25.8.2007, 31.5.2008, 11.6.2008, 15.6.2008 and 15/16.7.2008. Thus the Magis­trate of Moradabad would have territorial jurisdiction to entertain the complaint or take cognizance on the charge-sheet filed by police of P.S. Mahila Thana, Moradabad because cause of action arose with in the territory of Moradabad on 25.8.2007, 31.5.2008, 11.6.2008, 15.6.2008 and 15/16.7.2008. Most of the part of dowry was given to the applicants at Moradabad and demand of dowry was also made at Moradabad. This case should be tried and investigated at Moradabad where part of crime was committed in view of proposi­tion of law laid down by Rajasthan High Court in Piyush Ramsinghani v. State of Ra­jasthan and another, 2009 (1) Criminal Court Cases 144 (Raj.) In that case the demand of dowry was made at Ajmer as well as at Jaipur the question of jurisdiction was re­quired to be considered in such case in view of the fact that if one part of an of­fence was committed at any place other than the place where the part of offence was committed, the Courts situated there shall have jurisdiction. 13. In view of above proposition of law laid down by Hon'ble Apex Court in Asit Bhattarcharya's case and other High Courts the cause of action is required to be determined taking into consideration the entire facts of the case and not in isolation of fact technically. A perusal of sections 177, 178 and 181(4) Cr.P.C. reveals that the cases can also be tried and, investigated at a place where part of crime has been committed, ordinarily a case is to be tried by a Court within whose local jurisdiction crime is committed. In a case where offence is partly committed in a local area of the Court and partly in the local area of any other Courts, then both Courts will have jurisdiction to try the case. In view of the provisions of Cr.P.C. in a case where the acts are committed at different local areas then the Courts having jurisdiction in different areas shall also have jurisdiction to try the case. 14. No doubt, the applicants have been residing at New Delhi and Bangalore but the offence has allegedly been commit­ted by them as well as cause of action for registration of the case have arisen out within the territorial jurisdiction at Moradabad and Bangalore both. 14. No doubt, the applicants have been residing at New Delhi and Bangalore but the offence has allegedly been commit­ted by them as well as cause of action for registration of the case have arisen out within the territorial jurisdiction at Moradabad and Bangalore both. The inju­ries are alleged to have been inflicted to the victim by her husband in the evening of 30.5.2008 at Bangalore and when the local police at Bangalore did not register her case against applicant No. 3, then the victim came to Delhi by air and thereafter she came to Moradabad on 31.5.2008 and got her injuries medically examined by the doctor at District Hospital, Moradabad on the same day. The victim then moved an application to S.S.P., Moradabad for regis­tration of a case against the applicants on 2.6.2009 but the same was registered after delay of 10 days and thus there was no negligence on the part of the victim in lodging of the F.I.R. 15. The opposite party No. 2 now started to live at Moradabad with her par­ents and she had been caused continuous mental and physical cruelty. She also made allegations against the applicants that they kept her belongings and valuable docu­ments in their custody causing continuous cruelty and harassment to her at Moradabad thus the Courts of Moradabad would have full jurisdiction for taking cognizance on the charge-sheet and the police of P.S. Mahila Thana, Moradabad would have jurisdiction to investigate the case, the Investigating Officer also recorded the statements of the landlord of the victim at Bangalore as well as neighbouring per­sons and on the basis of the evidence the Investigating Officer came to conclusion that prima facie offences were made out against the applicants and then charge-sheet was submitted against them. In view of the above discussions and proposition of law laid down by HonT)le Apex Court as well as this Court there is no sufficient ground to quash the impugned charge-sheet submitted under sections 498-A, 323, 313 I.P.C. and section 3/4 Dowry Prohibition Act in the Court below. There is no illegality or irregularity committed by the Court below in passing the impugned order. Consequently this application is de­void of merit and is dismissed. Application Dismissed.