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2013 DIGILAW 417 (JK)

Chandan Mahajan v. State Of J&K

2013-07-24

ALI MOHAMMAD MAGREY

body2013
1. This petition under Section 561-A Cr.P.C. has been filed by the petitioners seeking quashing of FIR no. 129/2010 registered against them at Police Station, Trikuta Nagar, Jammu, for offences punishable under Sections 498-A, 315, 109, 323 RPC at the instance of respondent no. 3 herein. 2. Petitioner no. 1 is said to be husband of respondent no.3-the complainant - whereas petitioner no. 2 is her brother-in-law, petitioner no. 3 mother-in-law and petitioner no. 4 her sister-in-law. The marriage between petitioner no. l and respondent no. 3 was solemnized at Jammu on 13.11.2009 and, immediately after marriage, the parties settled in Mumbai where petitioner no. l is doing his business and owns his residential accommodation. It is stated that marriage between petitioner and respondent no. 3 failed to take off peacefully because of erratic and irrational behavior of respondent no. 3 on account of which petitioner no. 1 had to file a petition for divorce in Mumbai. The case of the petitioners is that respondent no. 3, in order to mount pressure upon petitioner no. l and to blackmail him, aborted her child and, thereafter, lodged the instant FIR against petitioner no. 1 and roped therein his brother, mother and sister. It is stated that the offences are alleged to have taken place in Mumbai and no offence is alleged to have taken place at Jammu within the jurisdiction of Police Station, Trikuta Nagar, or at any other place within the territory of the State of Jammu and Kashmir; therefore, the registration of the FIR and investigation started thereon by the Police concerned is share abuse of the process of law. It is further stated that respondent no. 3 in the FIR itself has stated that she has already filed an FIR with Police Station, Kharghar Mumbai for one and the same incidents; therefore, the filing of the second FIR regarding the self same incidents is legally barred. It is also stated that in case Police Station Kharghar had failed to take any proceedings on the FIR so filed by respondent no. 3, it was open for her to approach the Magistrate concerned for seeking appropriate directions in this behalf, but in no case, she could file a second FIR, that too, at Jammu. It is also stated that in case Police Station Kharghar had failed to take any proceedings on the FIR so filed by respondent no. 3, it was open for her to approach the Magistrate concerned for seeking appropriate directions in this behalf, but in no case, she could file a second FIR, that too, at Jammu. It is also stated that the FIR on the face of it is unbelievable and the same has been lodged with mala fide intention to harass and intimidate the petitioners. The FIR is also challenged on the ground of being motivated and tainted with personal grudge which respondent no. 3 is having against the petitioners. 3. On notice, respondent no. 3 has Filed her written reply wherein it is stated that after the marriage the petitioners started inflicting physical and mental cruelty on the answering respondent, persistently insisting for dowry; that the answering respondent was subjected to beating several times; that she was not allowed to talk to her parents and relatives; that she succeeded in calling her father who came to Mumbai and implored the petitioners to treat the answering respondent softly; that after his (father's) return to Jammu, the answering respondent was subjected to the same treatment as before; that the father of the answering respondent asked the petitioners' permission to take the answering respondent to Jammu, but they refused; that the answering respondent was ultimately sent to Jammu on 06.04.2010 after many requests were made by the parents of the answering respondent; that when her parents saw the marks of violence on the body of answering respondent, they telephonically tried to talk to petitioner nos. 1 and 2, but they abused them and said that they will very soon send her the divorce notice; that the answering respondent and her father visited the house of petitioners on 13.05.2010 and then again on 15.05.2010 where she was told that they have decided to get rid of the answering respondent and her child; that the answering respondent was beaten up by the petitioners and kicked in the abdomen which caused immense pain to her; that ultimately, the answering respondent was thrown out of the house and threatened that in case she went to the Police Station for filing a complaint, she will be killed; that the answering respondent was taken to a Doctor at Mumbai; that she sent a complaint to Police Station by registered post; that she was brought to Delhi by air and then to Jammu by taxi; that at Jammu, she was taken to hospital where the Doctor told her that the child in the womb had been damaged and miscarriage had occurred; that the miscarriage took place at Jammu; that petitioner no. 1 has filed a divorce petition within five months of marriage though the statute provides that no petition for dissolution of marriage can be filed within one year; that since the consequence of the commission of offence committed by petitioners at Mumbai ensued at Jammu when the miscarriage took place on account of injury caused to the child at Mumbai by petitioners, the Police at Trikuta Nagar, Jammu has got the jurisdiction to register the case and investigate the same. 4. Objections have also been filed on behalf of respondents 1 and 2 wherein it is stated that from the statements of witnesses and police investigation it has appeared that accused were involved in the commission of offences under Sections 498-A, 315, 323 and 325 RPC. It is also stated therein that the Investigating Officer obtained the medical report of the complainant in which the doctor has opined that in view of finding that the injury is grievous in nature and caused by blunt object. On the basis of medical report offence under Section 325 RPC was added. It is vehemently denied that the complainant has voluntarily gone for abortion. 5. I have heard learned counsel for the parties, perused the records and considered the matter. 6. On the basis of medical report offence under Section 325 RPC was added. It is vehemently denied that the complainant has voluntarily gone for abortion. 5. I have heard learned counsel for the parties, perused the records and considered the matter. 6. It may be mentioned here that the contents of the FIR lodged by the complainant-respondent no. 3 before the Police Station, Trikuta Nagar, are no different than what is stated in the aforesaid objections. Therefore, one of the important questions on the determination of which hinges the outcome of this petition is as to the place of commission of the alleged offences. The allegations leveled by the complainant-respondent no. 3 are that when on 15.05.2010 she went to her matrimonial home alongwith her father, she was beaten up by the petitioners and kicked in the abdomen which caused immense pain to her. It is also alleged that petitioner no. 4 was screaming, `make sure that the child in the womb does not survive'. It is the case of the complainant that she was thrown out of the house. She was taken to a Doctor at Mumbai. Photocopy of the prescription has been placed on record of this petition. It is dated 15.05.2010 and depicts the name of the clinic as Shri Tulja Clinic. It reads "c/o bleeding P/V dt. Injury. Adv./ USA". It is stated by the complainant that she was brought to Delhi by air where from they hired a taxi and returned to Jammu. She was admitted in Government Hospital, Gandhi Nagar, Jammu on 17.05.2010 where, it is alleged, the Doctor told her that the child in the womb had been damaged and miscarriage had occurred. It is also stated that the Doctor told them that life of both, the complainant and the child, was in danger and ultimately the child was aborted. The said allegation is supported by medical evidence. 7. Section 179 of the Code of Criminal Procedure is clear on the subject. It reads as under: "179. Accused triable in district where act is done or where consequence ensues. The said allegation is supported by medical evidence. 7. Section 179 of the Code of Criminal Procedure is clear on the subject. It reads as under: "179. Accused triable in district where act is done or where consequence ensues. When a person is accused of the commission of any offence by reason of anything which has been done, and of any consequence which has ensued, such offence may be inquired into or tried by a court within the local limits of whose jurisdiction any such thing has been done, or any such consequence has ensued." The aforesaid provision thus makes it clear that an offence can be inquired into or tried by a court within the local limits of whose jurisdiction any act has been done or any consequence of such an act has ensued. In the instant case, it is specifically alleged that on 15.05.2010 the complainant was beaten up and hit / kicked at abdomen at Mumbai with an object of terminating her pregnancy. She felt immense pain and was taken to the Doctor on the same date who opined bleeding and injury and advised ultrasound of abdomen. The consequences of the alleged act of beating / hitting and injury committed at Mumbai ensued at Jammu. The illustrations (a) to (d) mentioned under Section 179 Cr. P. C., particularly illustration (d) thereof states that if `A' is wounded in the State of Surashtra and dies of his wounds in Srinagar, the offence of causing A's death may be inquired into and tried in Srinagar. Going by the plain language of the aforesaid provision of law and illustration (d) thereunder, the abortion having taken place at Jammu in consequence of alleged beating and kicking at Mumbai, it cannot be said that the Police at Trikuta Nagar, Jammu, does not have the jurisdiction to register the case or to inquire into it. The aforesaid provision of law is unambiguously clear that in such cases the offence can be inquired into and/or tried by a court either within the local limits of whose jurisdiction any such thing / act has been done, or any such consequence has ensued. 8. Learned counsel for the petitioners, referring to the provision of Section 1(2)(a) of the Code of Criminal Procedure, Svt. 8. Learned counsel for the petitioners, referring to the provision of Section 1(2)(a) of the Code of Criminal Procedure, Svt. 1989, applicable in the State of Jammu and Kashmir, argued that the extent of jurisdiction under the Code extends only to the State of Jammu and Kashmir and that its provisions, including the power to conduct inquest would not extend beyond the territorial jurisdiction of the State of Jammu and Kashmir, especially so when the alleged offences are covered by the Indian Penal Code; whereas in the State of Jammu and Kashmir it is the Ranbir Penal Code which is applicable. The argument is negated by the provision of Section 179 Cr. P. C. quoted hereinabove. That apart, except the difference in Section numbers, there is no change in the two Codes, inasmuch the language and ingredients of the offences are pari materia with each other. 9. Learned counsel for the petitioners has next argued that since the complainant, respondent no. 3, had admittedly filed an FIR at Mumbai on 15.05.2010, the second FIR relating to the self same incident would not lie at Jammu. Reliance in this connection is placed on the decision of the Supreme Court in T.T. Antony etc. etc. v. State of Kerala, 2001(5) Supreme 131 . 10. The first question that arises for consideration is whether the complaint addressed by respondent no. 3 by post to the SHO Police Station concerned constitutes an FIR within the meaning of Section 154 Cr. P. C. It would be advantageous to quote hereunder in extensive the said complaint. It reads thus: "To Respected S. H. O., My father has come to leave me at my in-laws home at 402 Shree Ganesh CHS Sector-11 Plot 13, Kharghar, Navi Mumbai, Maharashtra 410210. My in-laws namely- Chandan Mahajan, Tarun Mahajan and Veena Mahajan assaulted me. They knew that I am pregnant and shouted to hit to terminate my pregnancy. Thereafter all of them gave me blows and kicks in my abdomen and they have thrown me out of my matrimonial house and I am going to Jammu empty handed with my father." Section 154 of the Cr. P. C. speaks of information in cognizable cases. In other words, only such information would constitute an FIR as relates to the commission of a cognizable offence. P. C. speaks of information in cognizable cases. In other words, only such information would constitute an FIR as relates to the commission of a cognizable offence. It was contended by the learned counsel for the respondents that the contents of the aforesaid communication sent by post by respondent no. 3 to the SHO do not disclose the commission of any cognizable offence, insofar as the complaint at best speaks of the commission of assault. 11. In T.T. Antony etc. etc. v. State of Kerala (supra) cited and relied upon by the learned counsel for the petitioners, the Supreme Court had the occasion to lay down the meaning of the word "FIR". In paragraphs 18 and 19 of the judgment the Apex Court held as under: "18. Sub-section (1) of Section 154 of Cr. P. C. contains four mandates to an officer in charge of a police station. The first enjoins that every information relating to commission of a cognizable offence if given orally shall be reduced to writing and the second directs that it be read over to the informant; the third requires that every such information whether given in writing or reduced to writing shall be signed by the informant and the fourth is that the substance of such information shall be entered in the station house diary. It will be apt to note here a further directive contained in sub-section (1) of Section 157 of Cr. P. C. which provides that immediately on receipt of the information the officer in charge of the police station shall send a report of every cognizable offence to a Magistrate empowered to take cognizance of the offence and then proceed to investigate or depute his subordinate officer to investigate the facts and circumstances of the case. Sub-section (2) entitles the informant to receive a copy of the information, as recorded under sub-section (1) free of cost. Sub-section (3) says that in the event of an officer in charge of a police station refusing to record the information as postulated under sub-section (1), a person aggrieved thereby may send the substance of such information in writing and by post to the Superintendent of Police concerned who is given an option either to investigate the case himself or direct the investigation to be made by a police officer subordinate to him, in the manner provided by Cr. P. C., if he is satisfied that the information discloses the commission of a cognizable offence. The police officer to whom investigation is entrusted by the Superintendent of Police has all the powers of an officer in charge of the police station in relation to that offence. 19. As information given under sub-section (1) of Section 154 of Cr. P. C. is commonly known as First Information Report (F. I. R.) though this term is not used in the Code. It is a very important document. And as its nick name suggests, it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a Police Station. It sets the criminal law into motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 of 170 of Cr. P. C., as the case may be, and forwarding of a police report under Section 173 of Cr. P. C. It is quite possible and it happens not infrequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 Cr. P. C. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police office in charge of a police station is the First Information Report- FIR postulated by Section 154 Cr. P. C. All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the First Information Report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 Cr. P. C. No such information / statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Cr. P. C. ..." (Underlining supplied) 12. P. C. No such information / statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Cr. P. C. ..." (Underlining supplied) 12. Following the above, it was held that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of Cr. P. C. only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr. P. C. Thus there can be no second FIR. However, from a perusal of paragraph 19 of the judgment, it becomes evident that in that case the first information report had duly been entered into the Police Station diary, investigation had been started and report thereabout had been sent to the Magistrate, and the second report was made to the same Police officer in charge of the police station relating to the same incident after a gap of about three years in-between and the said report, too, was entered into the diary of the Police Station. The Apex Court in that context held that the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 Cr. P. C. and thus there can be no second FIR and, consequently, there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Cr. P. C. 13. As seen from the above quoted passages of the judgment of the Supreme Court, the First Information Report is the information that is entered into the diary of a police station which sets the criminal law in motion and on which investigation is started. P. C. 13. As seen from the above quoted passages of the judgment of the Supreme Court, the First Information Report is the information that is entered into the diary of a police station which sets the criminal law in motion and on which investigation is started. There is nothing on record of this petition to show that the complaint sent through post by respondent no. 3 to the SHO at Mumbai had, in fact, reached the concerned police station and/or that it had been entered into the diary of the police station and that the law was set in motion, inasmuch as any investigation was started. It is not the case of the petitioners that, in fact, an FIR was registered and investigation thereon was commenced at Police Station Kharghar Mumbai. That being the factual position, there is nothing before this Court to assume that the communication dated 15.05.2010 sent by respondent no. 3 to the SHO at Mumbai through post had actually culminated into an FIR as envisaged by Section 154 Cr. P. C. and defined by the Apex Court in T.T. Antony etc. etc. v. State of Kerala (supra). Consequently, it cannot be said that legally the FIR lodged at Jammu was the second FIR and, therefore, could not have been filed or entertained. 14. It is true that in the event the FIR had not been registered at Police Station Kharghar, Mumbai, the complainant had an option to approach the Superintendent of Police concerned or to the learned Magistrate of competent jurisdiction. But availability of that option by itself would not debar her from lodging the FIR at Jammu where the consequence of the act, allegedly committed by the petitioners at Mumbai, had ensued. 15. I find that the facts of the case in T. T. Antony etc. etc. v. State of Kerala (supra) are totally distinguishable from the facts of the present case. In that case, the first information report had, in fact, been entered into the diary of the police station, investigation had been started and copy of the report had been submitted to the concerned Magistrate. Nothing of that sort is stated to have taken place in the present case on the postal communication in question of the complainant-respondent no. 3. 16. It is stated on behalf of the petitioners that the complainant, respondent no. Nothing of that sort is stated to have taken place in the present case on the postal communication in question of the complainant-respondent no. 3. 16. It is stated on behalf of the petitioners that the complainant, respondent no. 3 had voluntarily and deliberately undergone abortion at Jammu with a view to maligning the petitioners. It is also sought to be argued that on her own showing, the doctor at Jammu had told respondent no. 3 that miscarriage had taken place, meaning thereby that the alleged consequence of the alleged act had also occurred at Mumbai; therefore, the police at Jammu had no jurisdiction to register the case. It is also stated that the instant FIR was lodged only in consequence of the divorce deed filed by petitioner no. 1 at Mumbai and, therefore, is motivated. This Court in these proceedings would not hold an enquiry into the allegations and counter allegations. These are things to be gone into by the Trial court during the course of trial. 17. In light of the above, this petition is dismissed alongwith the connected Cr.M.P. Interim direction, if any subsisting, shall stand vacated. The trial court record called for pursuant to Court order dated 09.04.2012 shall be returned to the court concerned forthwith.