C482/68/2009 of DHARAMPAL Vs STATE AND ANR

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

CRIMINAL MISCELLANEOUS APPLICATION No. 51/2009

(Under Section 482 of the CrPC)

Jai Ram Singh & Others

…….Applicants

Versus

State of Uttarakhand & Another

……Respondents

With

CRIMINAL MISCELLANEOUS APPLICATION No. 68/2009

(Under Section 482 of the CrPC)

Dharampal

…….Applicant

Versus

State of Uttarakhand & Another

……Respondents

Ms. Lalit Sharma, Advocate, for the applicants. Mr. P.S. Bohara, Brief Holder, for the State. Mr. I.S. Mehra, Advocate, for the private respondent no. 2.

18thNovember, 2011

Hon’ble Servesh Kumar Gupta, J.

Since the challenge made in both the aforetitled petitions is to the same order of cognizance dated 24.6.2008, passed by the Additional Chief Judicial Magistrate, Haldwani, District Nainital in Criminal Case No. 52/2008 (Old No. 2993/2008 in the Court of Additional Chief Judicial Magistrate), State v. Dharampal & Others, hence, both these petitions are being decided by this common judgment and order. By the said order of cognizance, which was passed upon submission of the chargesheet by the police station Kathgodam, the learned Magistrate has summoned the applicants, namely, Jai Ram Singh (father-in-law), Smt. Shyamo Devi (mother-in-law), Vinay Prakash (brother-in-law/younger brother of the groom) and Dharampal (husband) to stand trial for the offences punishable under Section 498A, 323, 506 IPC read with Section 3/4 of the Dowry Prohibition Act.

2. Having heard the learned Counsel for the parties, the facts emerging out of the petitions are that Smt. Preeti was wedded with Dharampal on 15.2.2006 and having been so espoused with the groom, she began to reside in her matrimonial house at Moradabad. After couple of months of their marriage, the differences cropped up between them on the question of dowry. It is alleged that all the accused persons began to maltreat her on sundry scores with intention to extract as much money as they could at the eve of superannuation of the father of Smt. Preeti from the services of Indian Railways because he was likely to get handsome amount of money as his retiral benefits. So, all the accused persons were keeping sharp evil eye on the wherewithal which Mr. Ram Kumar Kashyap was going to receive from his employer Indian Railways, and this fact finds reflection from the letter written by Smt. Preeti to her parents on 27.5.2007 from her matrimonial house, wherein she has expressed her distress describing herself to be an ill-destined daughter.

3. When the expectation of the accused persons could not be meted out, Smt. Preeti was left on 8.6.2007 at Kathgodam to dwell with her parents. At that time, she was on her family way. She delivered baby boy on 1.8.2007.

4. The differences could not be sorted out between the two families. Rather, the same escalated in different ways. So, Smt. Preeti moved an application under Section 156(3) CrPC to the Additional Chief Judicial Magistrate, Haldwani on 24.1.2008 levelling several allegations including that of demand of dowry, her ouster from matrimonial home on 8.6.2007 and dropping her at Kathgodam with all threatening and intimidation. She also alleged that the accused persons also revisited her on 18.1.2008 at her parental house with intention to forcibly fetch her six months’ old child from her lap, and on their failure to achieve their motive, they again

threatened to forcibly snatch the baby sometime later. Upon this complaint, the learned Additional Chief Judicial Magistrate made an order on 30.1.2008 directing the police for registration of case and investigation thereof. On the other hand, the husband Dharmapal filed petition under Section 9 of the Hindu Marriage Act on 4.2.2008 for restitution of conjugal rights.

5. It appears that after having received such direction, as stated above, the police swung into action and exerted pressure upon the accused persons. Smt. Preeti, nurturing an expectation of reconciliation, moved an application on 29.1.2008 to the SHO, Kathgodam Police Station, thereby requesting the police to restrain from taking any adverse action against her in-laws. At the same time, she also requested that if the matter is not reconciled, then the police may take action against them. Be that as it may, the fact remains that nothing further could happen in the matter at the ends of the police even after the order of the Magistrate passed on the application made under 156(3) CrPC. So, Mr. Ramkumar Kashyap (respondent no. 2) had to lodge an FIR on 8.3.2008 narrating similar facts therein, whereupon the investigation was made and the chargeshet was submitted by the police against all the accused persons, as stated above. Thereafter the learned Magistrate took cognizance of the offences vide the impugned order.

6. Learned Counsel for the applicants/petitioners challenged the impugned order on the grounds of jurisdiction and false implication of the in-laws. He relied upon precedent of the Hon’ble Apex Court delivered in the case of Bhura Ram & Others v. State of Rajasthan, reported in III(2008) SLT 712. In that case, it has been held that when the matter was of criminal breach of trust, cruelty regarding the matrimonial case, then as per the contents of the complaint,

all the alleged acts took place in the State of Punjab, complainant left place of her in-laws and came to city of Sri Ganganagar (Rajasthan), since no part of cause of action arose in Rajasthan, so courts at Rajasthan did not have any jurisdiction to deal with the matter. On this ground, the proceedings pending before the court of ACJM, Sri Ganganagar were quashed.

7. As regards territorial jurisdiction of the instant matter, as per the allegations, part of the cause of action arose in Moradabad (Uttar Pradesh) and some part of the cause of action arose in Kathgodam (Uttarakhand) because the accused persons left Smt. Preeti at her parental house in Kathgodam on 8.6.2007, where they revisited her and tried to forcible snatch her six months’ old male child. Besides, in case of Smt. Sujata Mukherjee v. Prashant Mukherjee, reported in 1997 SCC (Criminal) 676, the Hon’ble Apex Court was itself of the view that when the wife was sent back to her father’s house after maltreating her for dowry, where she fell ill due to mental shock caused by cruelty of husband and relatives, in such cases the Court within whose jurisdiction wife resided with her father had jurisdiction to try the offence as the offence was partly committed outside Court’s jurisdiction when she was maltreated and continued to be committed within Court’s jurisdiction where she had been left with her father. This view was also relied upon in galaxy of cases, such as in the case of Vijay Ratan Sharma v. State of U.P., 1988 Cr.L.J. 1581 Ald.and Virender Singh v. State of U.P., 1994 (Vol. 31) Ald. Criminal Cases 809.

8. Moreover, in case of Sunita Kumari Kashyap v. State of Bihar & Anr. in Criminal Appeal No. 917 of 2011 (arising out of the SLP (Crl.) No. 8078/2010), the question involved for adjudication was exclusively confined to jurisdiction and it was held by the Hon’ble Apex Court that the matrimonial

offence is continuing one because its consequences ensue at the place where the wife resides after leaving her matrimonial house. Therefore, the courts having the territorial jurisdiction over the place where the wife is residing has the jurisdiction.

9. Therewithal, Section 179 of the CrPC envisages as under:

“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 consequence which has ensued, the offence may be inquired into or tried by Court within whose local jurisdiction such thing has been done or such consequence has ensued.”

10. This way, this Court is unable to agree with the contention advanced by the learned Counsel for the petitioners on the question of territorial jurisdiction, and it is held that an ousted married woman has right to initiate the judicial proceedings at the place where she resides after her ouster from the matrimonial house because the offence struck consistence and persistent anguish in her mind and its consequences ensued at the place where she got shelter after her expulsion from the in-laws house.

11. Learned Counsel on behalf of the applicants, while arguing that the applicants have been falsely implicated, has placed his reliance upon precedent of Honble Apex Court delivered in case of Preeti Gupta & Anr. v. State of Jharkhand & Anr., reported in (2010) 7 SCC 667,wherein the Hon’ble Apex Court has observed that the allegations regarding the matrimonial disputes should be scrutinized with great care and circumspection. But the Hon’ble Apex Court has expressed this view not regarding all cases of the matrimonial disputes, and that is why it has observed that in large

number of such complaints, it has been noticed that those are not bonafide and are filed with oblique motives. These words, entailing the intention of the Hon’ble Apex Court, are enough to discern that all complaints/chargesheets whereupon the cognizance has been taken by the Magistrate are not uniformly covered by this precedent.

12. In case of Central Bureau of Investigation v. K.M. Sharan reported in 2008(2) CCSC 815 (SC), wherein another precedent of the Hon’ble Apex Court in case of State of Haryana v. Bhajan Lal,(1992) Suppl. 1 SCC 335,has been relied upon, it has been observed by the Hon’ble Apex Court that powers under Section 482 CrPC should be exercised very sparingly, and the learned Court has laid down few parameters for exercising such powers by the High Court. One of the yardsticks is that where criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with view to spite him due to private and personal grudge, then in order to stop the abuse of the process of Court, the powers should be exercised.

13. Having panoptic view of the entire facts and circumstances of the instant case and in view of the above narrated legal proposition, this Court is not inclined to exercise its powers under Section 482 CrPC. Both these petition are bereft of merit and are hereby dismissed. Interim order dated 21.1.12009 stands vacated.

14. Registry is directed to inform the court concerned accordingly.

(Servesh Kumar Gupta, J.)