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Gauhati High Court · body

2014 DIGILAW 887 (GAU)

Manraj Nahata and Anr. v. State of Assam and Anr.

2014-09-18

K.SREEDHAR RAO

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1. Heard Ms. M. Dev, learned counsel, for the petitioners. Heard also Mr. Z. Kamar, learned Public Prosecutor, Assam, and Mr. D.K. Mishra, learned senior counsel, for the respondent No.2. 2. The petitioners are named as accused in a criminal complaint filed by one Ranjit Malu. A report was lodged in All Women Police Station. The case was registered as All Women Police Station Case No.17/2010 under section 498(A)/406/506 read with section 34 IPC against all the petitioners. The petitioners are in-laws of the victim and the complainant is the father of the victim. The victim is married to one Saurav Nahata in the year 2008. The petitioners and their sons all are residents of Hongkong. It is the allegation that the petitioners and the husband of the victim started harassing and perpetrating mental and physical cruelty on the victim to bring dowry and more money for business purpose. The victim unable to bear the torture and cruelty, complained the matter to the complainant and her mother and other relatives. The victim unable to bear the torture, came over to India. The father of the victim lodged the complaint before the police marking the allegations of torture and cruelty. Police have registered the case and taken up investigation. 3. It appears that the petitioners have approached this court on earlier occasions for bail and for release of passport, etc. The present petition is filed by the petitioners for quashing of the proceedings on the ground that the police of Guwahati have no jurisdiction to investigate the case since all the acts constituting the offence committed at Hongkong and no part of the cause of action arises at Guwahati for registration of the case and investigation. Secondly, it is contended that the contents of the complaint does not prima facie establish the ingredients of the offences alleged. 4. The provisions of section 4 of the Indian Penal Code are extracted hereinbelow for convenient reference : "4 Extension of Code to extra-territorial offences. - The provisions of this Code apply also to any offence committed by (1) any citizen of India in any place within and beyond India; (2) any person on any ship or aircraft registered in India wherever it may be; (3) any person in any place within and beyond India committing offence targeting a computer resource located in India. Explanation. - The provisions of this Code apply also to any offence committed by (1) any citizen of India in any place within and beyond India; (2) any person on any ship or aircraft registered in India wherever it may be; (3) any person in any place within and beyond India committing offence targeting a computer resource located in India. Explanation. - In this section - (a) The word 'offence' includes every act committed outside India which, if committed in India, would be punishable under this Code; (b) The expression 'computer resource' shall have the meaning assigned to it in clause (k) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000)." 5. Counsel for the petitioners relied upon the decisions of the Supreme Court in Ajay Aggarwal v. Union of India, (1993) 3 SCC 609 , and Gautam Sarma and Another v. Sanyukta Baruah, 2009 (3) GLT 1. Relying on the said decisions, it is argued that registration of the case and investigation by police is not permitted unless necessary sanction under section 188, Cr.PC is obtained from the Central Government. 6. The definition of inquiry and investigation under section 2(g) and 2(h) of the Code of Criminal Procedure and the provisions of section 188 are extracted hereinbelow for convenient reference : 2(g) "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court: 2(h) "investigation" includes all the proceedings under this Code for the. collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. 188. Offence committed outside India. When an offence is committed outside India- (a) by a citizen of India, whether on the high seas or elsewhere; or (b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found : Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government." 7. In Ajay Aggarwal's case, the facts reveal that part of the cause of action constituting the offence had taken place in India and the consequences and effect of such offending acts had ensued outside India. In the context of such facts, it was held that sanction under section 188, Cr.PC is not necessary. 8. In Gautam Sarma's case, the facts reveal that a private complaint was filed before the Magistrate and also one more report was registered as FIR by All Women Police Station. The facts also reveal that part of the cause of action arisen in India and a part arisen outside the territory of India. In the context of the said facts, it is held that for taking cognizance, sanction under section 188, Cr.PC is not necessary, but before holding trial, such sanction is needed. 9. Upon thorough consideration of the provisions extracted above, it becomes explicit that the word enquiry connotes enquiry other than trial conducted under the code by a Magistrate or a Court. In other words, enquiry would relate to only the proceedings before the court. In contra-distinction, the definition of investigation relates only to investigation conducted by police. The Code by its definition clearly excludes the authority of enquiry from the purview of the police. Police can only investigate. It is only the court or the Magistrate, who can conduct enquiry. 10. In the said context, if the provisions of section 188, Cr.PC are read carefully, the injunction in the provisions makes it explicit that "no such offence shall be enquired into or tried in India except with the previous sanction of the Central Government", which means that any enquiry or trial by the court has to be preceded by the previous sanction from the Central Government. With regard to investigation, there is no bar or impediment under section 188, Cr.PC for the police to register the case and to investigate. However, the police, while filing Final Report, have to take necessary sanction for holding the trial. In the absence of necessary sanction, holding of trial would be void and nullity in law. 11. Upon consideration of the decisions cited above, I find that none of the decisions are of any use to the petitioners to seek for quashing. The contention that the allegations in the FIR does not make out prima facie case also appears to be untenable. 11. Upon consideration of the decisions cited above, I find that none of the decisions are of any use to the petitioners to seek for quashing. The contention that the allegations in the FIR does not make out prima facie case also appears to be untenable. There are sufficient allegations imbibing necessary ingredients to constitute an offence under section 498(A), IPC. Therefore, I do not find any good reason to quash the proceedings. 12. It is stated by Mr. Z. Kamar, learned Public Prosecutor, that the investigation is not yet complete. Notices were issued to the accused persons for appearance before the Investigating Officer for interrogation and necessary letters are addressed to the Central Government. But for want of presence of the said accused persons, investigation is not complete. I fail to understand why Investigating Officer insists summoning of the accused for interrogation. It is not a case where there is a need and scope of recovery under section 27 of the Evidence Act, no statement of the accused can be recorded. For an untenable reason, it appears that the Investigating Officer has not completed the investigation. The Investigating Officer is stonewalling and not completing investigation, which amounts to harassment to the accused. It is, therefore, directed that the Investigating Officer without insisting summoning of the accused for interrogation, record statements of other material witnesses, if any, complete the investigation and file Final Report within two months. Accordingly, the petition is disposed of.