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Madhya Pradesh High Court · body

2010 DIGILAW 643 (MP)

Ajay Jagdish Sharma v. State of M. P.

2010-07-01

INDRANI DATTA

body2010
JUDGMENT Indrani Datta, J. 1. With the consent of parties, matter is finally heard. 2. Invoking the extraordinary jurisdiction of this Court conferred under Section 482 CrPC this petition has been filed by the petitioner for quashing the FIR concerning Crime No. 121/09 registered at Mahila Police Station Padav District Gwalior against him for offence punishable under Sections 498A and 506 IPC. 3. Facts in narrow compass are that the petitioner's marriage was solemnized with respondent No. 2 on 20.02.1997. At that time the petitioner was posted in USA where it is alleged that he is having illicit relationship with one Sunila Sharma. The petitioner does not want to keep the respondent No. 2 and he tortured her physically and mentally and asked for divorce. When the respondent No. 2 refused to give divorce, the petitioner beats, abuses and threatens her to kill her. He never gave her money to meet- out the routine expenses. One case of adultery is also pending against the petitioner on a report of Sunila Sharma's husband. Before Deepawali the petitioner came to Gwalior and had beaten and abused respondent No. 2 and thereafter returned back. The respondent No. 2 wanted a counselling with petitioner but the petitioner did not turn up. On this report Crime No. 121/09 has been registered against the petitioner for the aforesaid offences, giving rise to present petition. 4. It is contended on behalf of the petitioner that allegations levelled against him that he is having illicit relationship with Sunila is nothing but a mere suspicion and the petitioner never subjected respondent No. 2 to cruelty. It is further submitted that as per the FIR of the incidents of alleged cruelty have happened at Vadodara (Gujarat) when petitioner and respondent No. 2 were residing at Vadodara and second incident of beating which is alleged to be happened at Gwalior is a solitary act and that second act will not be taken as continuing offence and cannot be linked with incidents of cruelty alleged to be happened at Vadodara. It is urged that cause of action does not arise at Gwalior and case falls within the territorial jurisdiction of Vadodara Court. 5. Learned Counsel for the petitioner placed reliance on Krishan Lal and Ors. v. Union of India and Ors. 1994 Cri.L.J. 3472 and in 2009 (2) SCALE 70. In these cases ambit/scope of Section 498A is explained. 6. It is urged that cause of action does not arise at Gwalior and case falls within the territorial jurisdiction of Vadodara Court. 5. Learned Counsel for the petitioner placed reliance on Krishan Lal and Ors. v. Union of India and Ors. 1994 Cri.L.J. 3472 and in 2009 (2) SCALE 70. In these cases ambit/scope of Section 498A is explained. 6. Learned Counsel for petitioner further placed reliance on Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr. (2008) 2 SCC 561 . In that case it is held that while dealing with Section 498A it should be observed that provisions should not be used as device to achieve oblique motive. 7. Relying on the aforesaid citations, it is urged on behalf of the petitioner that willful conduct of such a nature as is likely to drive a woman to commit suicide or cause a danger whether mental or physical of woman is required to be established in order to bring home offence under 498A IPC and in the present matter on the face of FIR it is apparent that ingredients of cruelty are not attracted and only a vague general statement is levelled against petitioner, hence no case under Section 498A is made out and this is also a ground for quashment of FIR. 8. Learned Counsel for the petitioner placed reliance on Y. Abraham Ajith and Ors. v. Inspector of Police, Chennai and Anr. 2004 (3) Crimes 227 (SC). In that case a complaint was filed before the concerned Magistrate against accused persons under Section 498A, 406 IPC and Section 4 of Dowry Prohibition Act. Magistrate directed the police to investigate and after investigation charge-sheet was filed by police. Appellant/accused filed one petition under Section 482 CrPC before High Court alleging that concerned Magistrate has no jurisdiction to entertain complaint even if allegations contained in complaint are accepted, as no part of cause of action arose within the jurisdiction of concerned Court, complaint itself disclosed that after 15.4.1997 respondent left Nagercoil and came Chennai and was staying there and all the alleged act of cruelty took place at Nagercoil, hence Court at Chennai has no jurisdiction to deal with the matter. In reply, learned Counsel submitted that appellant/accused initiated proceedings for judicial separation, the notice for which was received by complainant at Chennai therefore cause of action existed at Chennai. In reply, learned Counsel submitted that appellant/accused initiated proceedings for judicial separation, the notice for which was received by complainant at Chennai therefore cause of action existed at Chennai. High Court directed that legal parameters were to be considered after a through trial. Apex Court then held that complainant has left the house herself on account of alleged dowry demands made at Nagercoil 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 Code relating to continuance of offence cannot be applied and concerned Magistrate had no jurisdiction to deal with the matter and proceedings are quashed. Reliance is further placed on Harmanpreet Singh Ahuwalia and Ors. v. State of Punjab and Ors. (2009) 7 SCC 712 . In that case it was observed that criminal proceedings were launched to harass the husband and in-laws due to matrimonial differences. Matrimonial dispute arose in Canada and FIR was lodged in India. After conducting investigation Superintendent of Police concluded that husband and in-laws have not committed any offence, yet charge-sheet was filed against the appellants. It was held by the Apex Court that High Court ought to have exercised its discretion under Section 482 in favour of appellants and proceedings were quashed. 9. Relying on aforesaid citations learned Counsel for petitioner urged that no cause of action accrued at Gwalior Court, hence Gwalior Court has no jurisdiction to try the case. 10. Furthermore, learned Counsel relied upon a citation in Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors. (2007) 12 SCC 1 it has been highlighted by Apex Court that quashing of proceedings and exercising of inherent powers under Section 482, when justified and duty and approach of High Court while exercising said power, it is held that inherent jurisdiction though wide has to be exercised sparingly, carefully and with great caution. May be exercised (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise substantial justice for the administration of which alone the courts exist. While exercising the said power court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. While exercising the said power court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. But said power should not be exercised to stifle a legitimate prosecution. Court should refrain from giving a prima facie decision in a case where entire facts are incomplete and hazy. More so, when the evidence has not been collected and produced before the court and the issues involved are of such magnitude that they cannot be seen in their true perspective without sufficient material. Yet no hard-and-fast rule can be laid down for exercise of extraordinary jurisdiction under Section 482 CrPC. Relying on above citation, it is contended by learned Counsel for petitioner that present is a fit case to exercise jurisdiction under Section 482 CrPC. 11. Thus, in all three contentions have been raised by learned Counsel for petitioner for invoking extraordinary jurisdiction of this Court. (i) Prima facie case is not covered under Explanation (a) or (b) of Section 498A IPC. (ii) All the alleged incidents of cruelty happened at Vadodara and solitary act that petitioner reached at complainant's house at Gwalior beaten her, is not a continuous offence hence no cause of action arises at Gwalior and Gwalior Court has no jurisdiction to try the case. (iii) This is a fit case to quash FIR concerning Crime No. 121/09 registered at Mahila Police Station Padav District Gwalior. On the anvil of aforesaid, prayed for quashing the FIR. 12. Learned Counsel for the respondent No. 2 vehemently opposed the petition and submitted that case is covered under Section 498A IPC. It is further submitted that due to mental torture by petitioner, complainant left her matrimonial home and came to reside in her parental house, hence that mental agony is continuous state and the act of present petitioner of committing Marpeet at Gwalior is a continuous offence related with original act of cruelty committed at Vadodara as mental agony is still persistent. Case is within jurisdiction of Gwalior, therefore, case will be covered under Section 178(c) CrPC. Learned Counsel has placed reliance on State of Andhra Pradesh v. Vangaveeti Nagaiah (2009) 12 SCC 466 . In that case High Court by impugned judgment quashed the FIR registered under Section 7-A r/w Section 8(e) of Andhra Pradesh Prohibition Act, 1955, r/w Section 109 IPC. Learned Counsel has placed reliance on State of Andhra Pradesh v. Vangaveeti Nagaiah (2009) 12 SCC 466 . In that case High Court by impugned judgment quashed the FIR registered under Section 7-A r/w Section 8(e) of Andhra Pradesh Prohibition Act, 1955, r/w Section 109 IPC. It was held by Apex Court that interference at the threshold with the FIR is to be made in very exceptional circumstances. Whether the material already in existence or to be collected during investigation would be sufficient for holding the accused persons concerned guilty has to be considered at the time of trial. Charge can be framed if there are materials showing possibility about the commission of the crime as against certainty. At this stage also evidence cannot be gone into meticulously and it is immaterial whether case is based on direct or circumstantial evidence. It has been further held that in the instant case, it could not be said that the FIR did not disclose commission of an offence. Therefore, High Court was not justified in quashing the FIR. On the basis of above canon, learned Counsel prayed that no interference is warranted at this stage and the petition is liable to be dismissed. 13. I have heard the learned Counsel for the parties and considered the rival submissions. 14. In State of Haryana and Ors. v. Bhajan Lal and Ors. 1992 Supp (1) S.C.C. 335, following categories of cases are stated by Hon'ble Apex Court by way of illustration, wherein the extraordinary power under Article 226 or the inherent powers under Section 482 Cr.P.C. can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure ends of justice, (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. (2) Where in allegations in the first information report and other materials, if any, accompanying the FIR do not disclose cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (2) Where in allegations in the first information report and other materials, if any, accompanying the FIR do not disclose cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where in the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. In the light of above legal position, it is to be observed that whether case of petitioner falls under any of the above categories to entitle him to invoke the extraordinary jurisdiction of this Court enshrined under Section 482 CrPC. 15. So far as the contention of the learned Counsel for the petitioner that all the alleged acts of cruelty happened at Vadodara and act of alleged beating complainant at Gwalior is a solitary act and it may constitute a different offence and this act is not a continuous offence hence no cause of action will arise at Gwalior and Gwalior Court has no jurisdiction to try the case is concerned, this argument is unacceptable. For that purpose, It would be apposite to go through the provisions of Section 177 and 178 of CrPC, which deal with ordinary place of inquiry and trial and reads as under: 177. Ordinary place of inquiry and trial- Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. 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 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, it may be inquired into or tried by a Court having jurisdiction over any of such local areas. In case of Sujata Mukherjee (SMT) v. Prashant Kumar Mukherjee (1997) 5 SCC 30 . In that case, complaint was filed under Section 498A, 506 and 323 IPC by wife against her husband, parents-in-law and two sisters-in-law levelling allegation of dowry demand, maltreatment and humiliation at the house of her in-laws. Thereafter it was further alleged that husband had come to the house of complainant's parents and had assaulted complainant then it was held that Clause (c) of Section 178 is attracted and the Magistrate at her parents' place also has jurisdiction to entertain the complaint. As complaint reveals a continuous offence of maltreatment and humiliation melted out to complainant, it is continuing offence and Clause (c) of Section 178 is attracted. Case at hand is akin to the aforesaid case. In the present case also, when complainant left matrimonial home at Vadodara and started living in parental house at Gwalior, there is specific allegation that petitioner had come to her parental house and assaulted her. Hence Clause (c) of Section 178 is very well attracted and Gwalior Court has absolute jurisdiction to deal with the case. Hence Y. Abraham Ajith and Harmanpreet Singh Ahuwalia (supra) relied upon by learned Counsel for petitioner are not applicable. 16. As far as the arguments of learned Counsel for petitioner that case is not covered under the Explanation (a) or (b) of Section 498A IPC and it is fit case to quash FIR is concerned, this argument is not reasonable. Hence Y. Abraham Ajith and Harmanpreet Singh Ahuwalia (supra) relied upon by learned Counsel for petitioner are not applicable. 16. As far as the arguments of learned Counsel for petitioner that case is not covered under the Explanation (a) or (b) of Section 498A IPC and it is fit case to quash FIR is concerned, this argument is not reasonable. On the report of complainant FIR is registered and investigation is going-on and material evidence is to be collected during investigation, at this stage, it cannot be said that the respondent/complainant has maliciously implicated the present petitioner and prima facie no case is made out against petitioner. The case prima facie does not fall under any of the categories enumerated in Bhajan Lal (supra). Accordingly, no ground is made out for quashing the FIR at this stage while exercising the power conferred under Section 482 of CrPC. Accordingly, the petition is dismissed. 17. Law laid down by the judgment/order: 18. Significant paragraph numbers: 14, 15, 16