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Roofi Nawaz & Ors vs State & Anr on 24 May, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 966 / 2013

1. Roofi Nawaz S/o Bedyujama Sheikh B/c Muslim, aged 35
years.

2. Bedyujama Sheikh S/o Abdul Latif Sheikh, B/c Muslim, aged
68 years.

3. Smt. Shireen Sheikh W/o Bedyujama Sheikh B/c Muslim
aged 58 years

All are R/o Plot No.6, Road No.4, Sector No.12, New Panvel,
New Mumbai.

—-Petitioners

Versus

1. State of Rajasthan.

2. Smt. Hoor D/o Mohammed Shabbir Khan B/c Muslim, R/o B-

37, Near Tempu Stand, Air Force Circle, Ratanada, Jodhpur
(Complainant).

—-Respondents
__
For Petitioner(s) : Mr. H.M. Saraswat.

For Respondent(s) : Mr. Deepak Choudhary, PP.

Mr. Dinesh Ojha
__
HON’BLE MR. JUSTICE SANDEEP MEHTA
Judgment
Date of Judgment: 24/05/2018

The instant misc. petition has been preferred by the accused

petitioners under Section 482 Cr.P.C. for challenging the order

dated 12.04.2013 passed by the learned Sessions Judge, Jodhpur

in revision, affirming the order dated 14.03.2011 passed by the

learned Metropolitan Magistrate No.2, Jodhpur Metro in connection
(2 of 9)
[CRLMP-966/2013]

with FIR No.26/2010 whereby, cognizance was taken against the

petitioners for the offences under Sections 498A and 406 IPC and

the matter was transferred to the Court of the learned Judicial

Magistrate, Jodhpur District for trial of the criminal case which has

been registered as Criminal Original Case No.174/2011.

Facts in brief are that the respondent No.2 Smt. Hoor filed a

complaint against the petitioners in the court of Metropolitan

Magistrate No.2, Jodhpur alleging inter alia that her marriage was

solemnised with the petitioner No.1 Shri Roofi Nawaz at the village

Ozhar, District Nasik. Her father gave wholesome dowry articles

and cash in the marriage. After two days of the marriage, all of a

sudden, behaviour of her husband and in-laws changed towards

her. She was ignored and insulting taunts were passed at her

owing to her dark complexion. She was stigmatised by saying that

a fair match was being sought for Roofi Nawaz, but misfortune had

fallen on them as the complainant was of dark complexion. The

accused started finding trivial flaws in her work. She was harassed

and humiliated and was pressurised to demand cash and a flat

from her father. Her husband went abroad in relation to his work.

Whenever, the complainant called him, she was abused. On

19.09.2009, the complainant left her matrimonial home and came

to Jodhpur where, her father was posted. She called her in-laws

from Jodhpur and requested them to return her streedhan articles

but they bluntly refused and instead, demanded a car and a

bungalow from her. She further alleged that the accused hatched a

conspiracy with each other and a totally fake Talaknama

fraudulently procured from Rackam’s, Grand Cayman Island was
(3 of 9)
[CRLMP-966/2013]

sent to her through e-mail. The complaint submitted by the

respondent No.2 was forwarded to Mahila Thana, Jodhpur where,

FIR No.218/2009 was registered and investigation commenced.

The police, after investigation, came to a conclusion that no part

of the cause of action pertaining to the alleged offences took place

within the Jodhpur district and as a matter of fact, the parties

married and resided together at the village Ozhar, District Nasik

and had never interacted at Jodhpur. Thereupon, a negative final

report on the ground of lack of territorial jurisdiction was

submitted by the I.O. in the court concerned. The complainant,

upon being notified of the Negative Report, filed a protest petition

and got herself and her witnesses examined under Sections 200

and 202 Cr.P.C. Thereupon, the learned Magistrate proceeded to

pass the order of cognizance dated 14.03.2011 and summoned

the accused petitioners for the offences under Sections 498A and

406 IPC. While considering the aspect of jurisdiction, the learned

Magistrate observed that in the enquiry under Sections 200 and

202 Cr.P.C., the complainant and her witnesses affirmatively

stated that while the lady was living at Jodhpur, the accused often

called her on phone and abused her and also conveyed their illegal

demands to her at Jodhpur and thus, a part of cause of action

pertaining to the offences alleged could be considered as having

occurred within the territorial jurisdiction of the court at Jodhpur.

With this conclusion, the learned Magistrate proceeded to accept

the protest petition and took cognizance against the accused

petitioners in the above terms. The said order passed by the

learned Magistrate was unsuccessfully challenged by the accused
(4 of 9)
[CRLMP-966/2013]

in revision which was dismissed by order dated 12.04.2013.

Hence, this misc. petition.

During the pendency of the misc. petition, this Court

attempted to mediate between the parties. On 10.01.2018, Shri

H.M. Saraswat, learned counsel representing the petitioners,

conveyed to this Court that the complainant has compromised the

matter with the petitioner and has remarried. On this statement of

Shri Saraswat, this Court directed the learned counsel

representing the complainant to keep her client present in the

Court on the next date. The matter was taken up on 22.02.2018

on which date, Shri Dinesh Ojha, Advocate appeared on behalf of

the complainant and apprised the Court that his client has

remarried and is living abroad and hence, she is unable to come

down to Jodhpur. He, upon being instructed, apprised the Court

that the only surviving grievance of the complainant as against the

accused as on date is that her streedhan articles are still lying in

matrimonial home at the village Ozhar, District Nasik and that the

same should be brought down to Jodhpur and returned to her. Shri

Saraswat, learned counsel representing the accused petitioners

emphatically stated that it was the complainant who deserted the

matrimonial home and she is always free to approach the

petitioners’ house and take whatever articles of her which may be

still lying there. However, Shri Ojha persisted with the submission

that the articles should be brought to Jodhpur and then only, the

complainant would consider the offer of compromise. Shri

Saraswat also made an alternative offer that if at all, the

complainant’s allegation regarding retention of her dowry articles
(5 of 9)
[CRLMP-966/2013]

is accepted as per the list supplied then the current value thereof

would not exceed beyond Rs.2,00,000/- as a fair offer of

compensating her, and the accused are ready to pay the

complainant a sum of Rs.3,50,000/- which would more than cover

the value of the stridhan articles claimed by the complainant.

However, Shri Ojha contacted his client and apprised the Court

that she is not willing to accept the said offer. Thus, the matter

was heard on merits.

Shri Saraswat learned counsel representing the petitioners

relied upon the Supreme Court decision in the case of Y.

Abraham Ajith Ors. vs. Inspector of Police, Chennai

Anr., reported in AIR 2004 SC 4286 and urged that even if the

allegations of the complainant are accepted as they are, no part of

the cause of action pertaining to the alleged offences took place

within Jodhpur district and hence, trial of the present petitioners is

not permissible in any court at Jodhpur. Both the parties belong to

Maharashtra and admittedly, the complainant married petitioner

Roofi Nawaz in the district Nasik and the entire duration for which

the spouses resided together was spent in the matrimonial home

at the village Ozhar, District Nasik. As per Shri Saraswat, the

complainant herself could not adjust in the matrimonial home and

voluntarily came down to Jodhpur because at that point of time,

her father was posted here. None of the petitioners ever came

down to Jodhpur to meet or interact with the complainant during

this period. Rather, after the complainant had returned to Jodhpur,

the petitioner Roofi Nawaz communicated the Talaknama to her

through an e-mail dated 26.09.2009. He urged that in the typed
(6 of 9)
[CRLMP-966/2013]

FIR lodged by the respondent No.2, she alleged that she left for

Jodhpur on 19.09.2009 and then, she claims to have called the

petitioners No.2 Bedyujama Sheikh (father in-law) and petitioner

No.3 Smt. Shireen Sheikh (mother-in-law) on mobile on

28.09.2009 who allegedly threatened her that she would not be

allowed to stay in the matrimonial home unless she brought a car

or a bungalow in gift. As per Shri Saraswat, the complainant had

already been communicated with the divorce forwarded by the

petitioner No.2 through e-mail dated 26.09.2009, there was no

occasion for any demand being made from her thereafter i.e. on

28.0.2009 and the allegation made in this behalf is concocted. He

thus urges that the trial of the accused in the court at Jodhpur is

absolutely illegal and without jurisdiction and hence the entire

proceedings should be quashed.

Per contra, Shri Dinesh Ojha learned counsel representing

the complainant placed reliance on the Supreme Court decision in

the cases of Sunita Kumari Kashyap vs. State of Bihar

Anr., reported in (2011)11 SCC 301 and Chandralekha vs.

State of Rajasthan Anr., reported in (2013)14 SCC 374

and urged that in both these cases, Hon’ble the Supreme Court

has considered the issue regarding harassment being meted out to

the complainant through telephonic calls and on the basis thereof,

the jurisdiction to try the case was held to be within the domain of

the court at the place where the calls were received. He urged

that in the present matter also, the accused demanded valuables

i.e. a flat and a car during the mobile conversation held with the

complainant who was at Jodhpur and thus, the court at Jodhpur
(7 of 9)
[CRLMP-966/2013]

has jurisdiction to try the case. He thus craved dismissal of the

instant misc. petition.

I have given my thoughtful consideration to the arguments

advanced at bar and have gone through the material available on

record.

In view of the preceding facts pertaining to the offer made

by Shri Saraswat for paying a sum of Rs.3,50,000/- to the

complainant towards her dowry articles and the refusal of Shri

Ojha on being instructed by his client, this Court has to remain

conscious of the motive and intent of the complainant. The

spouses hail from Maharashtra and were married at the village

Ozhar, District Nasik on 27.07.2008. Manifestly, the matrimonial

relations between the petitioner Roofi Nawaz and the respondent

No.2 complainant survived for a period shy of one year. The

petitioner Roofi Nawaz, left for the foreign country where he was

working and in the month of September, 2009, the complainant

left the matrimonial home and came down to Jodhpur of her own

volition because her father was posted here. As per the FIR, there

was no untoward incident when the complainant left the

matrimonial home and rather it is clear that her departure from

the matrimonial home was in a congenial atmosphere. As per the

complainant’s own case, the petitioner Roofi Nawaz gave her

telephonic assent and the accused petitioners No.2 and 3 gave her

oral permission to visit her parents. Apparently, neither was any

demand made by the complainant for return of streedhan articles

at that time nor did the accused restrain her from carrying the

same with her while she was leaving the matrimonial home of her
(8 of 9)
[CRLMP-966/2013]

own volition. Manifestly thus, till that time, there was no issue

regarding so called illegal retention of the complainant’s streedhan

articles. The complainant has tried to convey in her investigational

and inquiry statements that the accused demanded a flat and a

car from her in the telephonic conversation which took place with

her at Jodhpur on 28.09.2009. Apparently, this averment made by

the complainant in her FIR is nothing but the part of the design to

create a foundation for lodging the FIR at Jodhpur because bereft

of such allegation, the complainant would not have been

entertained. Be that as it may. Nether any call details have been

provided by the complainant nor were collected by the I.O. so as

to fortify the assertion regarding any demand having been made

by the accused from the complainant during the so-called mobile

conversation. It is an admitted position that the petitioner Roofi

Nawaj communicated a divorce to the complainant on 26.09.2009.

Thus, there was no accusation for any demand being made from

her thereafter as, the matrimonial status stood severed. It is also

not disputed that after the petitioner Roofi Nawaz divorced Smt.

Hoor through e-mail, she has remarried and is presently living

abroad.

In this background, permitting trial of the accused

petitioners, who are residents of the village Ozhar, District Nasik,

to be continued in the court at Jodhpur would be nothing short of

a gross abuse of process of law. As has been discussed above,

this Court is duly satisfied that no part of the cause of action

pertaining to the offences alleged took place at Jodhpur so as to

allow continuance of proceedings in the court at Jodhpur.

(9 of 9)
[CRLMP-966/2013]

As a consequence of the above discussion, the instant misc.

petition deserves to be and is hereby allowed. The impugned order

dated 12.04.2013 passed by the learned Sessions Judge, Jodhpur

and the order dated 14.03.2011 passed by the learned

Metropolitan Magistrate No.2, Jodhpur Metro are quashed and set

aside. The trial court shall transfer the original record of the case

to the court of the District Judge, Nasik who shall assign trial of

the case to the Magistrate having jurisdiction. The parties shall be

notified of the registration of the criminal case at Nasik as per law.

(SANDEEP MEHTA), J.

tikam daiya/

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