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2010 DIGILAW 757 (UTT)

kunal tyagi v. STATE OF UTTARAKHAND

2010-10-08

SUDHANSHU DHULIA

body2010
JUDGMENT Hon’ble Sudhanshu Dhulia, J. : Heard learned counsel for the petitioners as well as learned counsels for the respondents. 2. This application under Section 482 of Cr.P.C. was dismissed in default on 16.6.2010. Now a restoration application (MCRC No. 768 of 2010) has been filed by the applicant along with an application for condoning the delay in filing the restoration application. The reasons assigned for delay in filing the restoration application appear to be just and bonafide. Delay is condoned. Delay condonation application (CRMA No. 1018 of 2010) is allowed. The reasons assigned for recalling the order dated 16.6.2010 appear to be just and bonafide. In view of the judgment of the Apex Court in Madhumilan Syntex Ltd. & Ors. Vs. Union of India and another reported in 2007 AIR SCW 1971 and in order to secure the ends of justice, present restoration application is allowed. The order dated 16.6.2010 is recalled and the case is restored to its original number. 3. This petition arises out of an FIR dated 19.1.2009 lodged by the wife i.e. respondent no. 2 (Ishita Tyagi), in which the petitioners have been named as an accused. Petitioner no. 1 is the husband and petitioner no. 2 is the brother in law of respondent no. 2. At the root of the matter is a matrimonial discord between petitioner no. 1 and respondent no. 2. According to the FIR, although the marriage was solemnized on 15.2.2008 according to Hindu Rites and Ceremonies at Roorkee at the house of respondent no. 2, petitioner no. 1 and respondent no. 2 stayed together as husband and wife at Meerut. Respondent no. 2 thereafter states that since there was a demand of dowry and torture, etc., on 21.6.2008, she left the house of the husband and came to her maternal place at Roorkee, district Haridwar. 4. The learned counsel for the petitioners has challenged the charge sheet dated 28.1.2009 and the subsequent summoning order dated 6.4.2009 based on the FIR dated 19.1.2009 for the reasons that firstly not only the averments are false but even if these averments are taken on their face value, no case is made out for the demand of dowry or the alleged torture or beating of respondent no. 2 at the hands of the accused in the territorial jurisdiction of the District Court or even in the State of Uttarakhand as after marriage, respondent no. 2 at the hands of the accused in the territorial jurisdiction of the District Court or even in the State of Uttarakhand as after marriage, respondent no. 2 and petitioner no. 1 both were living at Meerut, State of U.P. 5. The complainant is represented by Sri Ajay Veer Pundir, Advocate who states that the cause of action arises in Haridwar as there was a demand of dowry and consequently threat to the complainant and her parents by telephone, which they received at Roorkee, district Haridwar. Hence cause of action at Hardwar. 6. Merely on the averments which is only in the nature of an allegation that the complainant and her parents had received a phone call from place “A” at place “B”, jurisdiction will accrue at place “B” is not acceptable. Therefore, the cause of action to initiate criminal proceedings does not arise in the territorial jurisdiction of the Court, which has issued summons to the petitioners. Moreover, the second argument of the counsel for respondent no. 2 is that cause of action does arise at Roorkee, district Haridwar as the petitioners had come at Roorkee and did “Maar Peet” with the complainant/respondent no. 2 and there is also an injury report to this effect. Even if this is accepted, it cannot be a ground of jurisdiction at Roorkee, district Haridwar inasmuch this alleged incident of “Maar Peet” took place on 20.1.2009 i.e. subsequent to the lodging of the FIR, which was lodged on 19.1.2009, therefore, on 19.1.2009 there was no cause of action at Roorkee. The entire criminal proceeding is totally without jurisdiction and is nothing but an abuse of the process of Court. Therefore, in the interest of justice, the entire proceedings initiated against the petitioners in Case No. 1350 of 2009 State Vs. Kunal and others under Section 498A of I.P.C. and 3/4 of the Dowry Prohibition Act are hereby set aside. The summoning order dated 6.4.2009 passed by the Judicial Magistrate, Roorkee in Case No. 1350 of 2009 State Vs. Kunal and others under Section 498A of I.P.C. and 3/4 of Dowry Prohibition Act at Police Station Gang Naher, District Haridwar is also set aside. 7. The instant C-482 petition is accordingly allowed. No order as to costs. 8. The Registry is directed to send a copy of this order to the Court concerned for necessary compliance.