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
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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
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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
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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
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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
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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
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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
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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.
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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/