01. The instant application under section 482 of the Code of Criminal Procedure has been filed for quashing of the criminal proceedings of Criminal Case No. 1307 of 2013, pending in the court of Special Additional Chief Judicial Magistrate, CBI (A.P.), Lucknow, arising out of Case Crime No.101 of 2012, under sections 498-A, 323, 504, 506, 406 IPC and 3/4 Dowry Prohibition Act, P.S. Mahila Thana, District Lucknow and other consequential proceedings initiated against the petitioner on the basis of chargesheet dated 27.6.2013 including the cognizance taken by the Magistrate and summoning the petitioner in the aforesaid case including warrant of arrest issued against the petitioner on 22.8.2013.
02. Brief facts of the case are as under:
(i) The petitioner has degree of B.S. and M.S. in Electrical and Computer Engineering from Carnegie Mellon University and MBA from IIM, Bangalore. The petitioner was previously working with Oracle and Merrill Lynch and presently working as Vice President in D.V.B. Bank in Rotterdam (Holland). The father of petitioner is a Marine Engineer from D.M.E.T. and the mother Mrs. Renu Mathur is M. Sc. Maths from Hindu College, Delhi University. The mother and father of petitioner together have started a business of Ship Manning in 1989 and are running the same since then.
(ii) After wedding petitioner moved to Mumbai along with opposite party no.2, where a wedding reception was held, following which, couple went on a two week honeymoon to Italy and Dubai. After their return, couple resided in Mumbai for five months with the parents of petitioner. At that time petitioner was employed with Merrill Lynch in Mumbai Office. On 03.09.2008, petitioner took opposite party no.2 (Lavangika Mathur) on a month long work relating trip to New York. On 09.10.2008, couple moved to Hong Kong, due to petitioner's work returned back on 06.04.2009.
(iii) In the time between April, 2009 to September, 2010 petitioner and opposite party no.2 resided in Mumbai and during this period petitioner was working with his father in Shipping business. During this period opposite party no.2 made several trips to Dubai to meet her parents.
(iv) On 15.09.2010 petitioner moved to Netherlands along with opposite party no.2 as petitioner got a job with D.V.B. Bank SE. The petitioner and opposite party no.2 visited several European Cities and countries over the weekends. On 04.01.2012, a son Aarash was born in Dubai and petitioner and opposite party no.2 were present in Dubai on this joyous occasion.
(v) Opposite party no.2 came back to Netherlands on 14.03.2012 with her son and her parents. Parents of petitioner also visited Netherlands and stayed there for a few weeks. In July, 2012, when petitioner was on vacation in Switzerland with opposite party no.2, some misunderstanding took place between them. Opposite party no.2 left for Dubai on 22.7.2012 with son Aarash.
(vi) A complaint was lodged against the petitioner including his mother, father and other relatives mentioning therein that the petitioner has tortured the opposite party no.2 for want of dowry and is also not handing over his Streedhan to opposite party no.2. On the basis of the said allegations made in the complaint, an FIR was lodged on 22.09.2012 as case crime no. 101 of 2012, under sections 498-A, 323, 504, 506, 406 IPC and 3/4 Dowry Prohibition Act, P.S. Mahila Thana, District Lucknow.
(vii) After completion of investigation, Investigating Officer has submitted the chargesheet against the petitioner , his mother, namely Smt. Renu Mathur and father Anil Mohan Mathur. The final report was submitted against co-accused Umesh Mathur (cousin father-in-law), Atish Mathur (brother-in-law) and Tarun Mathur (brother-in-law). In the FIR, six persons were named but the police has submitted the chargesheet only against three persons as mentioned above.
(viii) The opposite party no.2 apart from aforesaid FIR has also filed another criminal complaint case no. 1122 of 2013 (Smt. Lavingka Mathur Vs. Adeep Mathur and others) on 07.02.2013 before the Chief Judicial Magistrate, Lucknow against petitioner and two other co-accused (mother and father of the petitioner),under sections 498-A, 323, 504, 506, 406 IPC and 3/4 D.P. Act.
(ix) The petitioner has filed Writ Petition No.10458 of 2012 (M/B) (Adeep Anil Mathur and others Vs. State of U.P. and others) for quashing the first information report before this Court. The Division Bench of this Court vide order dated 28.12.2012 stayed the arrest of the petitioner in case crime no.101 of 2012, under sections 498-A, 323, 504, 506, 406 IPC and 3/4 D.P. Act, P.S. Mahila Thana, District Lucknow and directed the petitioners to deposit a sum of Rs.1,00,000/- in the registry of this Court. Vide order dated 28.01.2013, the matter was referred to mediation centre of this Court. As per report of mediation centre of this Court dated 12.02.2013, mediation between the parties has been failed and thereafter the writ petition filed by the petitioners was dismissed vide order dated 22.02.2013 passed by the Division Bench of this Court.
(x) The petitioner has filed divorce petition at Netherlands (Holland). A divorce degree has been granted in favour of petitioner.
03. Sri R.P. Mishra, learned counsel for the petitioner contended that opposite party no.2 herself is not the resident of Lucknow, she is residing with her parents in Dubai and is a permanent resident of Dubai. He further contended that no cause of action arose in Lucknow as such cognizance taken by the Magistrate is in clear violation of provisions contained in sections 177 to 188 of the Code of Criminal Procedure. Counsel for the petitioner further contended that section 178 of the Code of Criminal Procedure (hereinafter referred to as 'Code') provides the place of enquiry or tiral. He stated that there is no allegation against the petitioner that he was ever visited Lucknow in connection with demand of dowry or have physically and mentally tortured the opposite party no.2 at Lucknow, as such, no cause of action arises within the jurisdiction at district Lucknow.
04. Learned counsel appearing for the petitioner contended that most of the offences alleged to have been committed outside India and section 188 of the Code provides for trial of those offences which have been committed outside India.
05. Sri Mishra, learned counsel appearing for the petitioner has placed reliance on the decision:
(a). Prabhat Chaturvedi Vs. State of U.P. and others (Criminal Misc. Case No. 3061 of 2009).
(b). Judgment of Apex Court in Thota Vennkateshwarlu Vs. State of Andhra Pradesh [(2011) 9 SCC 527].
(c). Judgment of Apex Court in the case of Y. Abraham Ajith and others Vs. Inspector of Police, Chennai and another [2004 (5) ACC 2101].
(d). Judgment of Apex Court in the case of Bhura Ram and others Vs. State of Rajasthan [2008 (61) ACC 668].
06. In the case of Prabhat Chaturvedi Vs. State of U.P. and others (Supra) this Hon'ble Court in paras 22 and 23 has held as under:
22. In view of factual matrix in case in hand the offence committed at Riyad is complete offence and has no nexus with other offence alleged to have been committed in India. This offence under Section 326 IPC would not be triable without permission granted by the Central Government in view of proviso of Section 188 Cr.P.C. However the other offence which has been committed in India as alleged in the FIR and found to be committed in India during investigation would be tried and decided by the Magistrate. Hence proceeding in respect thereof may continue irrespective of the fact that no permission of the Central Government has been given in this case to prosecute the petitioner for the offence alleged to have been committed at Riyad in Saudi Arab.
23. Now question comes that on the basis of other offence said to have been committed in India whether the court at Lucknow has jurisdiction to try and decide the same. From the perusal of the allegation made in the first information report the dowry was given in Lucknow according to the prosecution version in the FIR. The opposite party No.2 and her mother was ill treated in Lucknow. Hence, it cannot be said that this court at Lucknow has no jurisdiction to try and decide the case.
07. In the case of Thota Vennkateshwarlu Vs. State of Andhra Pradesh (supra), the Hon'ble Apex Court held as under:
14. The language of Section 188 Cr.P.C. is quite clear that when an offence is committed outside India by a citizen of India, he may be dealt with in respect of such offences as if they had been committed in India. The proviso, however, indicates that such offences could be inquired into or tried only after having obtained the previous sanction of the Central Government. As mentioned hereinbefore, in Ajay Aggarwal's case (supra), it was held that sanction under Section 188 Cr.P.C. is not a condition precedent for taking cognizance of an offence and, if need be, it could be obtained before the trial begins. Even in his concurring judgment, R.M. Sahai, J., observed as follows :-
"29. Language of the section is plain and simple. It operates where an offence is committed by a citizen of India outside the country. Requirements are, therefore, one -- commission of an offence; second -- by an Indian citizen; and third -- that it should have been committed outside the country."
15. Although the decision in Ajay Aggarwal's case (supra) was rendered in the background of a conspiracy alleged to have been hatched by the accused, the ratio of the decision is confined to what has been observed hereinabove in the interpretation of Section 188 Cr.P.C. The proviso to Section 188, which has been extracted hereinbefore, is a fetter on the powers of the investigating authority to inquire into or try any offence mentioned in the earlier part of the Section, except with the previous sanction of the Central Government. The fetters, however, are imposed only when the stage of trial is reached, which clearly indicates that no sanction in terms of Section 188 is required till commencement of the trial. It is only after the decision to try the offender in India was felt necessary that the previous sanction of the Central Government would be required before the trial could commence.
16. Accordingly, upto the stage of taking cognizance, no previous sanction would be required from the Central Government in terms of the proviso to Section 188 Cr.P.C. However, the trial cannot proceed beyond the cognizance stage without the previous sanction of the Central Government. The Magistrate is, therefore, free to proceed against the accused in respect of offences having been committed in India and to complete the trial and pass judgment therein, without being inhibited by the other alleged offences for which sanction would be required.
17. It may also be indicated that the provisions of the Indian Penal Code have been extended to offences committed by any citizen of India in any place within and beyond India by virtue of Section 4 thereof. Accordingly, offences committed in Botswana by an Indian citizen would also be amenable to the provisions of the Indian Penal Code, subject to the limitation imposed under the proviso to Section 188 Cr.P.C.
08. On the other hand, Sri Nadeem Murtaza, and Sri Ved Prakash Yadav, Advocates, appearing for opposite party no.2 vehemently opposed the contentions raised on behalf of the petitioner. Counsel for opposite party no.2 submits that the petitioner did not disclose in the instant application that earlier writ petition filed him under Article 226 of the Constitution of India bearing Writ Petition No. 10458 (M/B) of 2012 was dismissed being misconceived vide order dated 22.02.2013 passed by a Division Bench of this Court. It is submitted that vide order dated 22.02.2013, the Division Bench of this Court dismissed the aforesaid writ petition with clear finding that the first information report discloses commission of cognizable offence. The grounds taken in the instant petition under section 482 Cr.P.C., were already taken in the aforesaid writ petition, which has already been dismissed and as such the prayer made in the instant petition under section 482 Cr.P.C. amounts to praying for review of the order dated 22.2.2013 passed by the Division Bench of this Hon'ble Court, the review of final order is specifically barred by virtue of the provisions of section 320 Cr.P.C. He contended that petitioner has not only concealed the material facts but has also tried to mislead this Hon'ble Court by deliberately mentioning the wrong year of the case crime in the heading of the petition. He further contended that the petitioner has deliberately mentioned the case crime no. as 1307 of 2013 although the actual case crime no. is 1307 of 2012. He contended that the instant petition has been filed after a very long unexplained delay. The petitioner has been absconding right from the year 2013. Numerous times, non bailable warrants were issued, however, the petitioner kept absconding which resulted in huge delay and there has been no progress in trial.
09. Learned counsel for opposite party no.2 contended that the cruelty against woman for demand of dowry and criminal breach of trust of Stridhan is a continuing offence. Lucknow was one of the place where the cruelty took place, when the complainant was living in Lucknow from August, 2012 to March, 2013. It is further contended on behalf of opposite party no.2 that the petitioner Adeep Mathur had hacked the email of the complainant and her mother and father, during the same time and thereby he was fully aware about the presence of complainant in Lucknow. The complainant lodged a complaint to the police in respect of hacking of her Email.
10. Counsel for opposite party no.2 also contended that the petitioner has not stated anywhere that despite of dismissal of his earlier writ petition no. 10458 of 2012 on 22.02.2013, he has not appeared before the Court even once. The petitioner who had shown his address as 51, 2B, Windermere, New Link Road, Andheri West, Mumbai-400053. The petitioner refused to accept the process of trial on several occasions. In the criminal case no. 716 of 2012, registered under Protection of Women from Domestic Violence Act, 2005, the court below passed the order for interim maintenance under section 13 of the said Act for 800 Euros per months towards the maintenance of wife and son but till today petitioner has not paid any amount in compliance of the said order.
11. It is contended that the complainant was living in Lucknow since 06.08.2012 onwards and had all the intentions to settle down in Lucknow in her parental home but she was tortured there. On 05.09.2012, Smt. Renu Mathur and her relative met complainant's mother and relatives in Cafe Coffee Day at Hazratganj, Lucknow around 6.00 pm and created such humiliation that the mother of the complainant fainted and was taken to the hospital where she was admitted into ICU of Dr. Shyama Prasad Mukherjee Civil Hospital, Lucknow.
12. The law is well settled that Indian Courts do not recognize the divorce decree obtained from a Foreign Court when both husband and wife are Hindus, both are born and brought up in India, marriage takes place in India as per Hindu Marriage customs and the divorce is not by mutual consent.
13. The counsel for opposite party no.2 has contended that the investigation was carried out by the police of P.S. Mahila Thana, Lucknow, who after investigation, submitted the chargesheet dated 27.06.2013 against the petitioner, Anil Mohan Mathur, and Renu Mathur. It is also submitted that upon receipt of the charge-sheet, the Special Chief Judicial Magistrate, CBI (AP), Lucknow took cognizance of the case and summoned the petitioner vide order dated 25.07.2013. The petitioner, who was fully aware of the proceedings before the Magistrate, deliberately avoided the service of summons and the Magistrate was constraint to issue bailable warrant followed by non-bailable warrant against the petitioner. However, the petitioner did not pay any heed to any of the order passed by the Magistrate, concerned. It is further submitted that while dismissing the writ petition filed by the petitioner before this Court, the Division Bench of this Court provided that in case the petitioner surrenders and moves application for bail, the bail application shall be considered by the court below expeditiously. However, the petitioner has showed disrespect of the order passed by this Court and did not surrender before the court of Magistrate yet. He has placed reliance on the decision of Apex Court in the case of Sujata Mukherjee (Smt.) Vs. Prashant Kumar Mukherjee [1997 (5) SCC 30] wherein the Court has held that the offences under sections 498-A IPC is covered from the provisions of section 178 of the Code and is maintainable in any local area, if any part of the offence has taken place in that local area. He further contended that in the case of Sunita Kumari Kashyap Vs. State of Bihar and another [(2011) 11 SCC 301], the Apex Court has held that "where relatives of the husband raised objection that they never went to Gaya (Bihar) where the complaint was filed, the Apex Court after discussing number of judicial precedent on the issue and also considering the provisions of section 179 of the Code opined that incident committed at Gaya was the consequence of the previous act and as such the case will be maintainable at Gaya against other accused persons, who did not visit Gaya."
14. I have considered the rival submissions of the parties and perused the material available on record.
15. Before I proceed to examine the impugned orders of court below and the facts of the case, it may be desirable to refer to settle legal proposition which has to be appeared in the instant case.
16. The main contention of the learned counsel for the petitioner is that no part of alleged offence was committed within the jurisdiction of Lucknow, as such, even if, all the allegations made in the FIR are accepted on its face value, the Lucknow police had no jurisdiction to register and investigate the matter. No ground had been made out therein to continue with the proceedings in India, having regard to the provisions of section 188 Cr.P.C.
"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."
17. Learned counsel for the applicant urged that Section 188 Cr.P.C. recognizes that when an offence is committed outside India by a citizen of India, he would have to be dealt with as if such offence had been committed in any place within India at which he may be found. The learned counsel, however, laid stress on the proviso which indicates that no such offence could be inquired into or tried in India except with the previous sanction of the Central Government. Learned counsel submitted that in respect of an offence committed outside India, the same could not be proceeded without previous sanction of the Central Government and that, accordingly, even if any of the offences was allegedly committed inside India, trial in respect of the same could continue, but the trial in respect of the offences committed outside India could not be continued, without the previous sanction of the Central Government.
18. Chapter XIII of the Cr.P.C. deals with jurisdiction of the criminal courts in inquiries and trials. Sections 177-179 Cr.P.C. are relevant which are as follow:
"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 is 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.
179. Offence triable where act is done or consequence ensues- When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued."
19. From the above provisions, it is clear that normal rule is that the offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction, it was committed. However, when it is uncertain in which of several local areas, an offence was committed or where an offence is committed partly in one local area and partly in another, or where an offence is a continuing one, and continues to be committed in more than one local areas and takes place in different local areas as per Section 178, the Court having jurisdiction over any of such local area is competent to inquire into and try the offence. Section 179 of the Cr.P.C. makes it clear that if, anything happened as a consequence of the offence, the same may be inquired into or tried by court within whose local jurisdiction such thing has been done or such consequence has ensued.
20. On behalf of opposite party no.2, it was urged that a part of the alleged offences relating to the Dowry Prohibition Act did not appear to have arisen in India/Lucknow, even at the initial stage, when various articles, including large sums of cash and jewelery were given in dowry by the father of the opposite party no.2. It submitted that since a part of the cause of action had arisen in Lucknow on account of the alleged offences under sections as alleged, the learned Magistrate trying the said complaint could also try the other offences alleged to have been committed out side India along with the said offences. Reliance was placed on the decision of the Hon'ble Apex Court in Ajay Aggarwal Vs. Union of India (1993) 3 SCC 609, wherein it had been held that obtaining the previous sanction of the Central Government was not a condition precedent for taking cognizance of offences, since sanction could be obtained before the trial begun.
21. The question which I have been called upon to consider in this case is, whether in respect of a series of offences arising out of the same transaction, some of which were committed within India/Lucknow and some outside India, such offences could be tried together, without the previous sanction of the Central Government, as envisaged in the proviso to section 188 Cr.P.C. The other crucial question is whether any part of cause of action arose within the jurisdiction of the courts at Lucknow. In terms of Section 177 of the Cr.P.C., it is the place where the offence was committed. In essence, it is the cause of action for initiation of the proceedings against the accused.
22. While in civil cases, normally the expression "cause of action" is used, in criminal cases, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression `cause of action‟ is, therefore, not a stranger to criminal cases. 'Cause of action' it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his/her rights to a judgment of the court. In other words, a bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit.
23. In a generic and wide sense 'cause of action' means every fact which it is necessary to establish to support a right to obtain a judgment. As held in M/s Sough East Asia Shipping Co. v. Nav. Bharat Enterprises (P) Ltd. (1996) 3 SCC 443, 'cause of action' consists of a bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts which taken with law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or would arise.
24. Applying aforesaid legal principles,to the factual scenario as disclosed by the complainant in the complaint, it is to be seen whether no part of cause of action arose in Lucknow, so as to oust the jurisdiction of the concerned Magistrate to deal with the matter.
25. The averments made in the complaint by the complainant which led to the registration of FIR against the petitioners reflects that she had leveled allegations of ill treatment and cruelty at the hands of the petitioners. As such, part of cause of action arose at Lucknow. Moreover, in view of section 178 and 179 of the Code the offence in this case was continuing one, having been committed in more local areas and one of the local area being Lucknow, the FIR was registered at Lucknow.
26. The learned counsel for opposite party no.2 has mainly contended that since the offences registered under sections 498-A, 323, 504, 506, 406 IPC and 3/4 of Dowry Prohibition Act are continuing offences, the court can hear the continuing offences and there is no illegality or infirmity in registering the FIR against the petitioner in Mahila Thana, district Lucknow, as abatement and cruelty at the hands of the husband continues at the matrimonial house. The offences of harassment or ill treatment meted out to complainant are still continuing.
27. The learned counsel for the opposite party no. 2 relied upon the following decisions in (2011) 9 SCC 527 [Thota Venkateswarlu Vs. State of Andhra Pradesh and another] as follows:-
(i) 14. The language of Section 188 CrPC is quite clear that when an offence is committed outside India by a citizen of India, he may be death with in respect of such offences as if they had been committed in India. The proviso, however, indicates that such offences could in inquired into or tried only after having obtained the previous sanction of the Central Government. As mentioned hereinbefore, in Ajay Aggarwal Case, it was held that sanction under Section 188 CrPC is not a condition precedent for taking cognizance of an offence and, if need be, it could be obtained before the trial begins. Even in his concurring judgment, R.M.Sahai, J., observed as follows:
(SCC p.628, para29) "29. Language of the section is plain and simple. It operates where an offence is committed by a citizen of India outside the country. Requirements are, therefore, one-commission of an offence; second - by an Indian citizen; and third-that it should have been committed outside the country".
15. Although the decision in Ajay Aggarwal case was rendered in the background of a conspiracy alleged to have been hatched by the accused, the ratio of the decision is confined to what has been observed hereinabove in the interpretation of Section 188 CrPC. The proviso to Section 188, which has been extracted hereinbefore, is a fetter on the powers of the investigating authority to inquire into or try any offence mentioned in the earlier part of the section, except with the previous sanction of the Central Government. The fetters, however, are imposed only when the stage of trial is reached, which clearly indicates that no sanction in terms of Section 188 is required till the commencement of the trial. It is only after the decision to try the offender in India was felt necessary that the previous sanction of the Central Government would be required before the trial could commence.
16.Accordingly, up to the stage of taking cognizance, no previous sanction would be required from the Central Government in terms of the proviso to Section 188 CrPC. However, the trial cannot proceed beyond the cognizance stage without the previous sanction of the Central Government. The Magistrate is, therefore, free to proceed against the accused in respect of offences having been committed in India and to complete the trial and pass judgment therein, without being inhibited by the other alleged offences for which sanction would be required.
28. In the case of Sunita Kumari Kashyap Vs. State of Bihar and another [(2011)11 SCC 301] the Hon'ble Supreme Court has held as follows:-
8. Chapter XIII of the Code of Criminal Procedure, 1973 (in short "the Code") deals with jurisdiction of the criminal courts in inquiries and trials. Sections 177-179 are relevant which are as follows:
"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 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.
179. Offence triable where act is done or consequence ensues- When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued".
9.Keeping the above provisions in mind, let us consider the allegations made in the complaint. On 17.10.2007, Sunita Kumari Kashyap, the appellant herein made a complaint to the Inspector-in-Charge, Magadh Medical College Police Station, Gaya. In the complaint, the appellant, after narrating her marriage with Sanjay Kumar Saini, Respondent 2 herein on 16.4.2000 stated what had happened immediately after the marriage at the instance of her husband and his family members' ill-treatment, torture and finally complained that she was taken out of the matrimonial home at Ranchi and sent to her parental home at Gaya with the threat that unless she gets her father's house in the name of her husband, she has to stay at her parental house forever. In the said complaint, she also asserted that her husband pressurized her to get her father's house in his name and when she denied she was beaten by her husband. It was asserted that after keeping her entire jewellery and articles, on 24.12.2006, her husband brought her at Gaya and left her there warning that till his demands are met, she has to stay at Gaya and if she tries to come back without meeting those demands she will be killed. It was also stated that from that date till the date of complaint, her in-laws never enquired about her. Even then she called them but they never talked to her.
10. A perusal of the entire complaint, which was registered as an FIR, clearly shows that there was illtreatment and cruelty at the hands of her husband and his family members at the matrimonial home at Ranchi and because of their actions and threat she was forcibly taken to her parental home at Gaya where she initiated the criminal proceedings against them for the offences punishable under Sections 498-A and 406/34 IPC and Sections 3 and 4 of the DP Act. Among the offences, the offence under Section 498-A IPC is the main offence relating to cruelty by husband and his relatives. It is useful to extract the same which is as under:
"498A. Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation: For the purpose of this section, "cruelty" means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
11. Similar allegations as found in the complaint in the case on hand with reference to the offences punishable under Sections 498A, 406/34 IPC were considered by this Court in the following decisions:
12. In Sujata Mukherjee (Smt) vs. Prashant Kumar Mukherjee, (1997) 5 SCC 30, similar issue was considered by this Court and found that clause (c) of Section 178 of the Code is attracted and the Magistrate at wife's parents' place has also jurisdiction to entertain the complaint. In the said decision, wife was the appellant before this Court and the respondents were the husband, parents-in-law and two sisters-in-law of the appellant Sujata Mukherjee. The gist of the allegation of the appellant, Sujata Mukherjee was that on account of dowry demands, she had been maltreated and humiliated not only in the house of her in-laws at Raigarh but as a consequence of such events, the husband of the appellant had also come to the house of her parents at Raipur and assaulted her. On behalf of the respondents therein, it was contended before the learned Chief Judicial Magistrate, Raipur that the criminal case was not maintainable before the said learned Chief Judicial Magistrate because the cause of action took place only at Raigarh which was outside the territorial jurisdiction of the learned Magistrate at Raipur. A prayer was also made to quash the summons issued by the learned Chief Judicial Magistrate by entertaining the said complaint of Smt Mukherjee. As the Chief Judicial Magistrate was not inclined either to quash the summons or to transfer the criminal case to the competent court at Raigarh, the criminal revision petitions were filed before the High Court, one by all the five respondents and another by four of the respondents excluding the husband presumably because there was specific allegation against the husband that the husband had also gone to Raipur and had assaulted the appellant and as such the husband could not plead want of territorial jurisdiction. Both the said criminal revision cases were disposed of by a common order dated 31.08.1989 by the High Court holding that the case against the husband of the appellant alone is maintainable and in respect of other respondents related to the incidents taking place at Raigarh, hence, the criminal case on the basis of complaint made by the appellant is not maintainable at Raipur. The said order of the High Court was challenged by the appellant-Sujata Mukherjee in this Court. It was submitted that it will be evident from the complaint that the appellant has alleged that she had been subjected to cruel treatment persistently at Raigarh and also at Raipur and incident taking place at Raipur is not an isolated event, but consequential to the series of incidents taking place at Raigarh. Therefore, it was contended that the High Court was wrong in appreciating the scope of the complaint and proceeding on the footing that several isolated events had taken place at Raigarh and one isolated incident had taken place at Raipur. This Court basing reliance on Section 178 of the Code, in particular clauses (b) and (c), found that in view of allegations in the complaint that the offence was a continuing one having been committed in more local areas and one of the local areas being Raipur, the learned Magistrate at Raipur had jurisdiction to proceed with the criminal case instituted in such court.
13. Ultimately, accepting the stand of the appellant, this Court held as under:
"We have taken into consideration the complaint filed by the appellant and it appears to us that the complaint reveals a continuing offence of maltreatment and humiliation meted out to the appellant in the hands of all the accused respondents and in such continuing offence, on some occasions all the respondents had taken part and on other occasion, one of the respondents had taken part. Therefore, clause (c) of Section 178 of the Code of Criminal Procedure is clearly attracted."
14. In State of M.P. vs. Suresh Kaushal and Another, (2003) 11 SCC 126, again in a similar circumstance, considering the provisions of Section 179 with reference to the complaint relating to the offences under Section 498A read with Section 34 IPC, this Court held as under:
"6. The above Section contemplates two courts having jurisdiction and the trial is permitted to take place in any one of those two courts. One is the court within whose local jurisdiction the act has been done and the other is the court within whose local jurisdiction the consequence has ensued. When the allegation is that the miscarriage took place at Jabalpur it cannot be contended that the court at Jabalpur could not have acquired jurisdiction as the acts alleged against the accused took place at Indore."
18. We have already adverted to the details made by the appellant in the complaint. In view of the specific assertion by the appellant wife about the ill-treatment and cruelty at the hands of the husband and his relatives at Ranchi and of the fact that because of their action, she was taken to her parental home at Gaya by her husband with a threat of dire consequences for not fulfilling their demand of dowry, we hold that in view of Section 178 and 179 of the Code, the offence in this case was a continuing one having been committed in more local areas and one of the local areas being Gaya, the learned Magistrate at Gaya has jurisdiction to proceed with the criminal case instituted therein. In other words, as the offence was a continuing one and the episode at Gaya was only a consequence of continuing offence of harassment and ill-treatment meted out to the complainant, clause (c) of Section 178 is attracted. Further, from the allegations in the complaint, it appears to us that it is a continuing offence of ill-treatment and humiliation meted out to the appellant at the hands of all the accused persons and in such continuing offence, on some occasions all had taken part and on other occasions one of the accused, namely, the husband had taken part, therefore, undoubtedly clause (c) of Section 178 of the Code is clearly attracted.
19. In view of the above discussion and conclusion, the impugned order of the High Court holding that the proceedings at Gaya are not maintainable due to lack of jurisdiction cannot be sustained. The impugned order of the High Court dated 19.03.2010 in Criminal Miscellaneous Case No.45153 of 2009 are set aside. In view of the same, the SDJM, Gaya is permitted to proceed with the criminal proceedings in Trials Nos.1551 of 2008 and 1224 of 2009 and decide the same in accordance with law.
29. This Court perused the materials available on record. Even according to the petitioner, occurrence has not occurred within the jurisdiction of the court below at Lucknow. Hence, the Mahila Thana at Lucknow has no territorial jurisdiction to take cognizance against the petitioner and the same is liable to be quashed. The case law relied on by the learned counsel for the petitioner are not applicable to the facts of the present case. The offence of dowry, ill-treatment/cruelty at the hands of the husband and other relatives at the matrimonial home is continuing offence of harassment and ill-treatment to the complainant, therefore, it is clear that the police of Mahila Thana at Lucknow has jurisdiction to investigate the matter and the Magistrate has jurisdiction to take cognizance in the matter.
30. In the case of Sujata Mukherjee (Smt.) Vs. Prashant Kumar Mukherjee [(1997) 5 SCC 30], the Apex Court has held that the offence of section 498-A IPC is covered from the provisions of section 178 Cr.P.C. and is maintainable in any local area, if any part of the offence has taken place in that local area. Relevant para nos. 6 and 7 are reproduced as under:
"6. Mr. Anoop Choudhary, learned senior counsel appearing for the State has submitted that clause [b] of Section 178 is not attracted but if this Court is inclined to accept the submission of Mr. Gambhir that the offence was continuing on and the episode at Raipur was onlya sequence of the continuing offence of harassment and ill treatment meted out to the complainant, clause [c] of the Section 178 may be attracted. Mr. Choudhary has submitted that from the complaint it cannot be reasonably held that all the accused had committed the offence partly in one area and partly in another local area. Therefore, it will not be appropriate to apply; clause [b] of Section 178 of the Code of Criminal procedure. In our view,there is force in such submission of Mr. Choudhary."
7. Despite service being effected on the private respondents, no one has appeared for any of of the accused respondents. We have taken into consideration the complaint filed by the appellant and it appears to us that the complaint reveals a continuing offence of mal treatment and humiliation meted out to the appellant in the hands of all the accused respondents and in such continuing offence, on some occasions all the respondents had taken part and on other occasion, one of the respondents had taken part. Therefore, clause [c] of Section 178 of the code of Criminal Procedure is clearly attracted. We, therefore, set aside the impugned order of the High Court and direct the learned Chief Judicial Magistrate, Raipur to proceed with the criminal case. Since the matter is pending for long, steps should be taken to expedite the hearing. The appeals are accordingly allowed."
31. Inherent power under section 482 of the Code of Criminal Procedure can 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 secure the ends of justice.
The Courts have consistently taken the view that they must use this extraordinary power to prevent injustice and to secure the ends of justice. The English Courts have also used inherent power to achieve the same objective. It is generally agreed that Crown Court has inherent power to protect its process from abuse. In Connelly Vs. Director of Public Prosecution (1964) AC 1254, Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the Court is empowered to refuse to allow the indictment to proceed to trial.
32. In Director of Public prosecution Vs. Humphrys (1977) AC 1, Lord Salmon stressed the importance of the inherent power when he observed that it is only, if the prosecution amounts to an abuse of the process of the Court and is oppressive and vexatious that the Judge has a power to intervene. He further mentioned that the Court's power to prevent such abuse is of great constitutional importance and should be jealously preserved.
33. The law regarding proceedings under Section 482 Cr.P.C. was considered by the Hon'ble Supreme Court of India in Padal Venkata Rama Reddy alias Ramu vs. Kovvuri Satnarayana Reddy and Others, (2011) 12 SCC 437 and it was held that :-
"11. Though the High Court has inherent power and its scope is very wide, it is a rule of practice that it will only be exercised in exceptional cases. Section 482 is a sort of reminder to the High Courts that they are not merely courts of law, but also courts of justice and possess inherent powers to remove injustice. The inherent power of the High Court is an inalienable attribute of the position it holds with respect to the courts subordinate to it. These powers are partly administrative and partly judicial. They are necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice. The jurisdiction under Section 482 is discretionary, therefore the High Court may refuse to exercise the discretion if a party has not approached it with clean hands.
12. In a proceeding under Section 482, the High Court will not enter into any finding of facts, particularly, when the matter has been concluded by concurrent finding of facts of the two courts below. Inherent powers under Section 482 include powers to quash FIR, investigation or any criminal proceedings pending before the High Court or any court subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. The court can always take note of any miscarriage of justice and prevent the same by exercising its powers under Section 482 of the Code. These powers are neither limited nor curtailed by any other provisions of the Code. However, such inherent powers are to be exercised sparingly, carefully and with caution.
13. It is well settled that the inherent powers under Section 482 can be exercised only when no other remedy is available to the litigant and not in a situation where a specific remedy is provided by the statute. It cannot be used if it is inconsistent with specific provisions provided under the Code (vide Kavita v. State and B.S. Joshi v. State of Haryana). If an effective alternative remedy is available, the High Court will not exercise its powers under this section, specially when the petitioner may not have availed of that remedy."
34. In the instant case, the FIR clearly spells out the fact that the accused persons hands in gloves with each other, the petitioner assaulted and subjected the opposite party no.2 to cruelty. The visit at Lucknow by other accused persons is not an incident in isolation but is a part of harassment and cruelty of the opposite party no.2 in respect of the demand of dowry, to which,the opposite party no.2 was subjected right from her marriage at different places. The petitioner, who was fully aware ofthe proceedings before the Magistrate, deliberately avoided the service of summons and the Magistrate was constraint to issue bailable warrant followed by non-bailable warrant against the petitioner. However, the petitioner has never appeared before the court below in spite of the non bailable warrant. While dismissing the writ petition filed by the petitioner before this Court, the Division Bench of this Court vide order dated 22.02.2013 provided that in case the petitioner surrenders and move application for bail, the bail application shall be considered by the court below expeditiously. But petitioner has chosen not to surrender before the court below. The instant petition has been filed by the petitioner after five years for the purpose of delaying the trial of the case crime no. 101 of 2012. Therefore, the instant petition filed by the petitioner is gross misuse of the process of law.
35. In view of the above said facts and circumstances, the proceedings cannot be thrown out on the basis of section 188 of the Code of Criminal Procedure. The authorities relied upon by the learned counsel for the petitioner has no application to the facts of the case in hand, inasmuch as in those cases, on peculiar facts and circumstances of those cases.
36. It may be noted that the petitioner was not the beneficiary of the dowry given or demanded. Yet all these facts have to be gone into by the trial court at the time of framing of the charges. The appreciation of evidence cannot be done by the High Court in proceeding under Section 482 of the Cr.P.C. Similarly the probability of the allegations made in the FIR and the defence raised by the persons accused of the offence cannot be gone into in the proceedings under Section 482 of the Code.
37. The offence of dowry ill-treatment/cruelty at the hands of the husband and the relatives at the matrimonial home, is a continuing offence of harassment or ill-treatment made over by the complaints and it is, therefore, clear that the police Mahila Thana, Lucknow has jurisdiction to investigate the case and the court below is competent to take the cognizance.
38. In view of above discussions, since part of cause of action arose at Lucknow and the offence is continuing one, as such, the court below at Lucknow has jurisdiction to deal with the matter. That being so, the application under section 482 Cr.P.C. is accordingly dismissed. It is made clear that nothing has been expressed on merits of the case.
39. Accordingly, application u/s 482 Cr.P.C. is dismissed.
[Chandra Dhari Singh, J] Order Date :- 28.02.2018 Prajapati