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2023 DIGILAW 397 (UTT)

Gauri Shankar Pal v. State of Uttarakhand

2023-07-10

SHARAD KUMAR SHARMA

body2023
JUDGMENT : SHARAD KUMAR SHARMA, J. 1. Though the matter is listed today for the purposes of making an effort for mediation, the parties to the proceedings are participating in the proceedings through video conferencing, and upon being interacted with the applicant no. 1, the applicant no. 1, has made a categorical statement that owing to the given complexities of relationship, which the applicants have with the respondent no. 2, he is not open for mediation any more. He further submits that, since the earlier mediation efforts made on 29th March, 2023, has already failed, there is no possibility for mediation, which could be at all gone into by this Court. 2. The instant C482 application, which emanates from the FIR No. 15 of 2021, dated 16.10.2021, registered at Police Station Didihat, District Pithoragarh, by naming the accused person, which included the present applicants for their involvement in the commission of the offences under sections 498A, 354, 312, 323, 504 and 506 of IPC, and under sections ¾ of the Dowry Prohibition Act. 3. Upon the said set of allegations, the investigation was carried, and consequently the charge-sheet was submitted by the Investigation Officer being Chargesheet No. 15 of 2022, dated 09.05.2022, where the alleged offence levelled against the present applicants were apparently found to be correct and as a consequence, thereto, it ultimately resulted into the registration of the Criminal Case No. 377 of 2022, State vs. Gauri Shankar Pal and Others, whereby the applicants have been summoned by an order dated 19.12.2022. 4. Upon a failure for making an effort for mediation and as stated also by the applicants, who has participated in the proceedings, the learned counsel for the applicants has ventured upon to address this C482 application on its own merits, and he has pressed upon the following issues: “1. That the respondent no. 2, is carrying a criminal history because there already happens to be a proceeding drawn by one Smt. Janabdulari, as against the respondent no. 2, for the offence under section 420 of IPC, which stood registered as a consequence of the FIR dated 20.07.2016. That the respondent no. 2, is carrying a criminal history because there already happens to be a proceeding drawn by one Smt. Janabdulari, as against the respondent no. 2, for the offence under section 420 of IPC, which stood registered as a consequence of the FIR dated 20.07.2016. In reference to which, the learned counsel for the applicants has drawn the attention of this Court to the pleadings raised by him to the said effect, as well as to that of the action taken of submission of the charge-sheet and the process of the issuance of the bailable warrant which was issued against the respondent. 2. At this stage itself, this Court feels it apt to observe that so far as the involvement of the respondent no. 2, in the alleged commission of the offence under section 420 of IPC as against Smt. Janabdulari, is concerned, for which the criminal proceedings are alleged to have been drawn, for which the charge-sheet has been submitted against the respondent no. 2, would be exclusively an issue which if at all would have got any bearing it would be qua the complainant of said proceedings under 420 of IPC i.e. Janabdulari, and no capital gain could be drawn by the applicants for the purposes of putting a challenge to the matrimonial discord, which stood registered as a consequence of the present FIR No. 15 of 2021, dated 16.10.2021. 3. There is another reason why this Court is not inclined to accept the arguments with regards to the impact of the proceedings under section 420 of IPC, because if that is taken into consideration, the set of allegations levelled, therein, would be entirely the dispute which relates to the act of duping which has been referred to in the FIR, as registered by the complainant Smt. Janabdulari, against the respondent no. 2, and which will not be having even a slightest bearing so far as the private matrimonial discord is concerned, which is absolutely a private dispute, emanating from the matrimonial misunderstanding between the married couples. 4. Learned counsel for the applicants submits that, respondent no. 2, was earlier married with one Shri Aman, and later on the said marriage of the respondent no. 2, was got dissolved under section 13B of the Hindu Marriage Act (in short “Act”) by the decree rendered on 23.03.2021. 4. Learned counsel for the applicants submits that, respondent no. 2, was earlier married with one Shri Aman, and later on the said marriage of the respondent no. 2, was got dissolved under section 13B of the Hindu Marriage Act (in short “Act”) by the decree rendered on 23.03.2021. The said decree has already attained finality, which has been rendered under section 13B of the Act, on 23.03.2021, being a judicial dictum, a presumption would be that it was very well in the knowledge of the present applicants, at the stage, when he has solemnized the marriage with the respondent no. 2, on 02.07.2021. Even if it is presumed for the time being that, the applicant no. 1, was not having any knowledge with regards to the proceedings under section 13B of the Act as drawn by the first husband of the applicant no. 2, which stood decided on 23.02.2021, and if at all there was any concealment on part of the respondent no. 2, in solemnization of the marriage with the present applicant on 02.07.2021. So far as the contention pertaining to the effect of the decree dated 23.03.2021, is concerned, if at all it has got any bearing in relation to the subsequent solemnization of the marriage on 02.07.2021, that would be an aspect which is still to be decided in the proceedings drawn by the present applicants under section 12 of the Hindu Marriage Act, which still stands pending consideration by way of the Matrimonial Case No. 46 of 2021, before the court of Civil Judge (Senior Division), Devanahalli, Bangaluru. 5. In that eventuality, this Court is refraining itself to make any observations with regards to the effect of the marriage of 02.07.2021, because it may have a direct bearing and influencing the proceedings, which has been instituted by the applicant no. 1, by way of a Matrimonial Case No. 46 of 2021, which is yet to be decided on its own merit. 6. 1, by way of a Matrimonial Case No. 46 of 2021, which is yet to be decided on its own merit. 6. So far as the last argument, which has been raised by the learned counsel for the applicants pertaining to the jurisdiction of the courts at Didihat, Pithoragarh, the cognizance of which has been taken by the Judicial Magistrate, Didihat, District Pithoragarh, by an order dated 19.12.2022, in fact the question of the jurisdiction has been debated by the learned counsel for the applicants based on the pleadings as raised in paragraph 20 and 27 of the C482 application, contending thereof, that since no act or the action, which has been complained of in the FIR, is said to have taken place, within the territorial jurisdiction of the competent courts at Didihat, District Pithoragarh, the entire proceedings drawn by the respondent no. 2, would be bad in the eyes of law. The aforesaid pleadings raised by the learned counsel for the applicants pertaining to the jurisdiction of the court to take cognizance of the matter, has been denied by the respondent no. 2, in the counter affidavit in paragraph no. 24 and 18, as well as that in paragraph 23 of the counter affidavit filed by the Government Advocate. 7. In further elaboration to the pleading of counter affidavit filed by the respondent, and particularly, the aspect pertaining to the sustainability of the proceedings is concerned, the learned counsel for the respondent has referred to that in an event if on account of the matrimonial discord, if the wife is constrained to leave the matrimonial home and has to reside at a place of her abode, or with parents, he argues that, in that eventuality, the FIR registered by the respondent no. 2, at Didihat, Pithoragarh, would be very well maintainable, and in support of his contentions, he has primarily placed a reliance on the judgment as reported in Rupali Devi vs. State of U.P. and Others, 2019 (5) SCC 384 wherein, particularly, he has made a reference to paragraph 16 of the said judgment, where the Hon’ble Apex Court has observed that where there is an adverse circumstances forcing for leaving the matrimonial home and taking refuge to at other place or the parental home, it would be the place where the deserted wife takes the shelter, that would have a cause of action to register an FIR, and in that eventuality, if the FIR is registered at the place where ultimately the wife is settled, after the separation, has taken place between the parties may be even orally or by conduct, the courts at a place of the residence of the wife would be a place where the jurisdiction would lie.” 5. The said aspect has been dealt with by the Hon’ble Apex Court in paragraph 15 and 16, of the said judgment as to in such an eventuality where the FIR is registered at the place of the present abode of the wife, and there the FIR was registered under section 498A of IPC, whether at all could be put to challenge on the grounds that the courts was not having a jurisdiction while issuing the summoning orders or taking the cognizance for the offences, for which the FIR has been registered. Paragraph nos.15 and 16 of the judgment is extracted hereunder: “15. The Protection of Women from Domestic Violence Act, as the object behind its enactment would indicate, is to provide a civil remedy to victims of domestic violence as against the remedy in criminal law which is what is provided Under Section 498A of the Indian Penal Code. The definition of the Domestic Violence in the Protection of Women from Domestic Violence Act, 2005 contemplates harm or injuries that endanger the health, safety, life, limb or well-being, whether mental or physical, as well as emotional abuse. The said definition would certainly, for reasons stated above, have a close connection with Explanation A & B to Section 498A, Indian Penal Code which defines cruelty. The provisions contained in Section 498A of the Indian Penal Code, undoubtedly, encompasses both mental as well as the physical well-being of the wife. The said definition would certainly, for reasons stated above, have a close connection with Explanation A & B to Section 498A, Indian Penal Code which defines cruelty. The provisions contained in Section 498A of the Indian Penal Code, undoubtedly, encompasses both mental as well as the physical well-being of the wife. Even the silence of the wife may have an underlying element of an emotional distress and mental agony. Her sufferings at the parental home though may be directly attributable to commission of acts of cruelty by the husband at the matrimonial home would, undoubtedly, be the consequences of the acts committed at the matrimonial home. Such consequences, by itself, would amount to distinct offences committed at the parental home where she has taken shelter. The adverse effects on the mental health in the parental home though on account of the acts committed in the matrimonial home would, in our considered view, amount to commission of cruelty within the meaning of Section 498A at the parental home. The consequences of the cruelty committed at the matrimonial home results in repeated offences being committed at the parental home. This is the kind of offences contemplated Under Section 179 Code of Criminal Procedure which would squarely be applicable to the present case as an answer to the question raised. 16. We, therefore, hold that the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences Under Section 498A of the Indian Penal Code.” 6. The Hon’ble Apex Court in its clear terms as observed in paragraph 16 of the judgment, has observed that the courts will hold the jurisdiction where the wife takes a shelter after leaving or after being driven away from the matrimonial home on account of the act of cruelty, committed by the husband or by his relatives, and in that eventuality, the jurisdiction would be to the place where the wife resides. 7. 7. Following the said principles, the Hon’ble Apex Court has laid down almost an identical principles in the judgment rendered in Criminal Appeal No. 1387 of 2019, Priti Kumari vs. State of Bihar and Others and relying upon the basic principles dealt with by the judgment of Rupali Devi (Supra), as observed in paragraph 10 and 11 too, therein, the Court has reiterated the observations made by Rupali Devi (Supra) that the place of suing for the deserted wife or the wife where she has taken shelter after the desertion from the matrimonial home, would be the place where she resides. 8. A similar view was taken by the Orissa High Court in Crl. MC No. 2596 of 2015, Smt. Geeta Tiwari and Another vs. State of Orissa and Another. In this judgment too, the coordinate Bench of the Orissa High Court has once again referred to the judgment of Rupali Devi, in its paragraph 6, has almost reiterating the same principles laid down by Rupali Devi judgment, as to which would be the competent place of jurisdiction for the complainant to register an FIR under section 498A of IPC, or as such for other offences, which has been commissioned as against the complainant/respondent no. 2, the wife of the applicant no. 1, held would be the place where wife actually resides after desertion or separation. 9. In that eventuality, so far as the question of the jurisdiction, which has been raised by the learned counsel for the applicants qua the registration of the FIR at Police Station Didihat, District Pithoragarh, it is being ruled out in view of the principles laid down by the Hon’ble Apex Court, that in such type of inevitable eventuality, where the wife is constrained to reside at a different place, and when it is practically impossible for her to register an FIR at a place where the offence has been committed, it may be in any part of the country. Hence, it is the convenience of the wife, which has been taken into consideration by the Hon’ble Apex Court in the judgment of Rupali Devi looking to the bare reality, as it has been observed in paragraph 15 and 16, as extracted above. Hence, it is the convenience of the wife, which has been taken into consideration by the Hon’ble Apex Court in the judgment of Rupali Devi looking to the bare reality, as it has been observed in paragraph 15 and 16, as extracted above. Later on, which stood reiterated by the Hon’ble Apex Court, as well as by the coordinate Bench of the Orissa High Court, thus the argument extended by the learned counsel for the applicants pertaining to the question of jurisdiction is not acceptable by this Court. 10. In view of the aforesaid, since respondent no. 2, has made a categorical statement in the pleadings and before this Court, that there is no possibility of the settlement and she doesn’t intends to venture out the possibility of the settlement, this Court has got no other option except to decide the matter on its own merit. 11. In that context, and looking to the nature of the offence, for which the cognizance have been taken upon the submission of the chargesheet for the offences under sections 498A, 354, 504, 506 and 324 of IPC, and ¾ of the Dowry Prohibition Act, since all the offences carry a sentence of less than seven years as argued, they would be amenable within a jurisdiction, and the principles which has been laid down by the Hon’ble Apex Court in the matters of Satender Kumar Antil vs. Central Bureau of Investigation and Another, 2022 (10) SCC 51 . Hence while dismissing this C482 application, it would be without prejudice to the applicants right to resort to his remedies as available in the light of the guidelines framed by the Hon’ble Apex Court for dealing with the offences which carry a sentence of less than seven years. 12. Subject to the aforesaid, the C482 application stands dismissed.