Chaman Rani & Ors. vs State Of West Bengal& Ors. on 17 April, 2017

$
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 11 th April, 2017
Pronounced on: 17 th April, 2017

+ WP(CRL.) 241/2010 Crl. M.A. 2023/2010 10053/2011
CHAMAN RANI ORS. …. PETITIONERS
Through: Ms. Geeta Luthra, Sr. Adv.
with Ms. Shreya Singh,
Adv.
Versus

STATE OF WEST BENGAL ORS. … RESPONDENTS
Through: Mr. Rajesh Mahajan, ASC
for the State with ASI Shri
Ram, PS Hari Nagar for R-2
Sh. Soumitra Chatterjee
Ms. Sriparna Chatterjee,
Advs. for R-3.

CORAM:
HON’BLE MR. JUSTICE R.K.GAUBA
ORDER

1. The first information report (FIR) no.337/09 was registered
on 13.07.2009 at the instance of the third respondent in these
proceedings alleging offences punishable under Sections 498A,
504 and 506 of the Indian Penal Code, 1860 (IPC), apparently on
the basis of a complaint lodged under Section 156(3) of the Code
of Criminal Procedure, 1973 (Cr. PC), in police station Serampore
District Hooghly, West Bengal under the directions of Additional
Chief Judicial Magistrate (ACJM), Serampore, District Hooghly,

WP(Crl.) 241/2010 Page 1 of 10
in the State of West Bengal. It appears from the copy of the said
FIR and the other documents on record that the third respondent, a
native of district Hooghli in the State of West Bengal had, inter
alia, claimed in her complaint that she had entered into a marriage
with Sh. Prashant Meena, son of the first petitioner, according to
vedic rites and customs on 10.02.2009 at a temple in New Delhi.

2. By the petition at hand, invoking criminal writ jurisdiction
of this court under Article 226 of the Constitution of India,
presented in February 2010, the petitioners prayed for the above-
said FIR to be quashed or, in the alternative, for a writ of
mandamus to be issued directing the appropriate authority to
transfer the said FIR from Kolkata (State of West Bengal) to the
jurisdiction of appropriate court in New Delhi.

3. It may be mentioned here that the writ petition was
presented for and on behalf of the six petitioners including the first
petitioner, she being the mother of the person of whom the third
respondent (the first informant of the case) claimed to be the
lawfully wedded wife, others being their close relatives. On
submissions made, at the instance of the third respondent on
07.07.2004, two of the original petitioners (Sunita and Gaurav)
were, however, deleted from the array on the ground that the FIR
was “not directed” against them. In terms of the amended memo
of parties submitted on 04.08.2010, in the wake of the said order
dated 07.07.2010, the petition has been pressed further by the
remaining four original petitioners, the second petitioner (Arvind)
and fourth petitioner (Renuka) being the other son and daughter of
the first petitioner, they being siblings of Prashant Meena while
WP(Crl.) 241/2010 Page 2 of 10
the third petitioner (Seema), is wife of another son of the first
petitioner.

4. Notice on the writ petition was issued by order dated
22.02.2010. It is noted that the additional standing counsel for the
second respondent (Govt. of NCT of Delhi) appeared and accepted
notice on the very first date, though it must be added that his
presence was inadvertently wrongly recorded to be on behalf of
the first respondent (State of West Bengal).

5. The matter essentially arises between the petitioners on one
hand and the first and third respondents on the other. The third
respondent filed a formal reply resisting the prayer made in the
writ petition and the accompanying applications. After she had
put in appearance, some efforts were made to explore the
possibility of amicable settlement, inter alia, by referring the
parties to mediation, though with no fruitful results.

6. Before filing the petition at hand, the petitioners had moved
bail application (217/2010) in this court invoking Section 438 of
the Cr. PC. The said application was granted by order dated
03.02.2010 in terms of which the petitioners were to be released,
in the event of they being arrested, on interim bail for the specified
period, subject to they furnishing personal bonds and surety bonds
to the satisfaction of the arresting officer, taking note of their
submission that they intended to approach the concerned court in
the State of West Bengal. The interim bail was granted to enable
the petitioners “to approach the competent court in the State of
West Bengal for any appropriate relief which they think would be
available to them in law”. By a subsequent order dated
WP(Crl.) 241/2010 Page 3 of 10
11.02.2010, this court extended the period of interim bail by two
more weeks.

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7. During the pendency of these proceedings, the petitioners
approached the Calcutta High Court by moving an application
under Section 438 Cr. PC (C.R.M. No.2945/2010) which came up
for consideration before a division bench of the said court. By
order dated 08.04.2010, Calcutta High Court declined to entertain
the said application under Section 438 Cr. PC and directed the
petitioners to appear before ACJM, Serampore, District Hooghly,
in the State of West Bengal, calling upon the said court to take an
appropriate decision “keeping in view the fragile materials”
against them and also suggesting their absence from the
proceedings to be condoned, after their initial appearance, having
regard to the fact that they would have to travel “all the way from
Delhi”.

8. It is the submission of the third respondent that the
petitioners challenged the order dated 08.04.2010 of the High
Court of Calcutta before the Supreme Court by filing a special
leave petition (Crl.) no.22934/2010 but opted to withdraw the
same seeking liberty to move the appropriate court for grant of
order under Section 438 Cr. PC which request was granted. It is
the submission of the petitioners that by subsequent order on
another petition later moved, the Supreme Court granted relief in
the nature of anticipatory bail to at least one of the petitioners
(Renuka), the counsel being not aware about status of others.

9. It is fairly conceded by the learned senior counsel appearing
for the petitioners that during the pendency of the proceedings at
WP(Crl.) 241/2010 Page 4 of 10
hand, the investigation into the FIR by the West Bengal police was
concluded and a report under Section 173 Cr. PC has come to be
filed in the court of ACJM, Serampore, District Hooghly, in the
State of West Bengal. It was submitted on behalf of the third
respondent, and conceded at the hearing by the learned senior
counsel for the petitioners, that except for the fourth petitioner
(Renuka), no other petitioner has appeared in the court of ACJM,
Serampore, in the proceedings relating to the criminal case which
has been registered on the basis of a report under Section 173 Cr.
PC on which cognizance was taken and process issued by the said
court. The senior counsel for the petitioners on being pointedly
asked, expressed ignorance as to the status of appearance or bail
for or in respect of the first, second or third petitioners, she adding
that the question as to whether the petitioners have been appearing
or not appearing should not be relevant for the proceedings at hand
in this court. This position taken by the counsel representing all
the petitioners cannot be accepted.

10. At the hearing, question of propriety of jurisdiction
expected to be exercised by this court in this writ petition,
particularly in the face of the fact that the charge-sheet has already
been filed and the competent court of West Bengal has already
taken cognizance and issued process and further in view of the
alternative prayer for transfer of the case to a criminal court in
New Delhi, came up for consideration. The learned senior counsel
for the petitioners placed reliance on Navinchandra N. Majithia
Vs. State of Maharashtra and Ors., (2000) 7 SCC 640 and
Rajendra Ramchandra Kavalekar Vs. State of Maharashtra and
WP(Crl.) 241/2010 Page 5 of 10
Anr., (2009) 11 SCC 286 to argue that the fact that the FIR was
registered in another State cannot be the sole criteria to take a
decision on the contentions raised in the petition at hand. She
referred to Y.Abraham Ajith and Ors. Vs. Inspector of Police,
Chennai and Anr., (2004) 8 SCC 100, Bhura Ram and Ors. Vs.
State of Rajasthan and Anr., (2008) 11 SCC 103 and Preeti Gupta
and Anr. Vs. State of Jharkhand and Anr., (2010) 7 SCC 667 to
argue that the facts set out in the FIR showing the acts alleged to
have been committed so as to constitute the offences for which the
petitioners are sought to be prosecuted primarily occurred within
the territorial jurisdiction of this court, thereby submitting that it is
appropriate that this court considers the contentions urged here to
quash the proceedings since they are in the nature of abuse of the
judicial process, the allegations of the third respondent being
vague, absurd or inherently improbable not fulfilling the requisite
ingredients of the prime offence under Section 498A IPC. In her
attempt to raise issues concerning the merits of the case for
prosecution brought before the court of ACJM, Serampore,
District Hooghly, in the State of West Bengal, reliance is also
placed on the view taken in R.P. Kapur Vs. State of Punjab, (1960)
3 SCR 388, State of Haryana and Ors. Vs. Bhajanlal and Ors.,
1992 Supp (1) SCC 335, Chandralekha and Ors. Vs. State of
Rajasthan and Anr., 2013 14 SCC 374, Anu Gill Vs. State and
Anr., 2001 (59) DRJ 417, Neera Singh Vs. State, ILR (2007) 1
Delhi 691, Naresh Kumar and Ors. Vs. State, (2002) 61 DRJ 273,
Bhaskar Lal Sharma and Anr. Vs. Monica, (2009) 10 SCC 604,
Shakson Belthissor Vs. State of Kerala and Anr. (2009) 14 SCC
WP(Crl.) 241/2010 Page 6 of 10
466, Onkar Nath Mishra and Ors. vs. State (NCT, Delhi)and Anr.,
(2008) 2 SCC 561, Deepa Bajwa Vs. State Ors, (2004) 77 DRJ
725, Neelu Chopra and Anr. Vs. Bharti, (2009) 10 SCC 184 and
Siddharam Satlingappa Mhetre Vs. State of Maharashtra and
Ors., judgment dated 02.12.2010 passed in Crl. Appeal
No.2271/2010.

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11. There can be no quarrel with the legal propositions on the
basis of which the learned senior counsel made her submissions.
But the difficulty in continuation of these proceedings before this
court stems from the subsequent developments wherein the West
Bengal Police has already completed its investigation and has
submitted its final report under Section 173 Cr. PC on which a
competent criminal court in the State of West Bengal having the
territorial jurisdiction over the crime registered by the police of
State of West Bengal has already taken cognizance and issued
process, as indeed from the position that questions of fact have
also been raised by the writ petition which, in the given facts and
circumstances, and the background, ought not be answered by this
court sitting in writ jurisdiction. In the context of the last
observation, by illustration, it need to be noted here that the
petitioners dispute even the claim of the third respondent of she
having married Prashant Meena, the son of the first petitioner.
The questions as to whether the said son of the first petitioner had
entered into a wedlock with the third respondent or further if she
(the third respondent) was subjected to the alleged offences,
particularly the offence of cruelty punishable under Section 498A
IPC, would arise and need to be addressed by the competent
WP(Crl.) 241/2010 Page 7 of 10
criminal court, on the basis of evidence adduced, in accordance
with law. In such proceedings, the questions as to whether or not
some of the acts of commission or omission constituting such
offences were committed or consequences thereof suffered within
the territorial jurisdiction of the concerned court in the State of
West Bengal or, to put it simply, whether the jurisdiction of the
authorities in the State of West Bengal has been properly invoked,
would also need to be addressed.

12. In State of Bihar and Anr. Vs. P.P. Sharma and Anr., AIR
1991 SC 1260, the Supreme Court referred to an earlier decision
reported as State of Bihar Vs. JAC Saldhana, (1980) 2 SCR 16
observing that “when the information is lodged at the police
station and an offence is registered, the malafides of the informant
would be of secondary importance” and further that “it is the
material collected during the investigation which decides the fate
of the accused persons”, holding “when the police report under
Section 173 Cr. P.C. has been forwarded to the Magistrate after
completion of the investigation and the material collected by the
investigating officer is under the gaze of judicial scrutiny, the
High Court would do well to discipline itself not to undertake
quashing proceedings at that stage in exercise of its inherent
jurisdiction”.

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13. Similar is the view taken in the decision of the Supreme
Court reported as State of Punjab Vs. Dharam Vir Singh Jethi,
1994 SCC (Crl.) 500, disapproving the order of the High Court
quashing the FIR, though on the ground of delay, after filing of the

WP(Crl.) 241/2010 Page 8 of 10
charge-sheet, without applying its mind to the limitation
prescribed in Cr. PC.

14. In the facts and circumstances, this court must refrain from
making any comment on the merits of the criminal case brought
before the court of ACJM at Serampore, District Hooghly, in the
State of West Bengal, save and except to observe that it is for the
said jurisdictional court to take an appropriate view on the basis of
submissions made before it in accordance with law, the grounds
sought to be agitated before this court being based on critique of
the allegations in the FIR which, it is trite, is not expected to be a
compendium of the entire set of facts, it being only the starting
point of putting the criminal law into motion.

15. The petitioners had surrendered to the jurisdiction of the
competent courts in the State of West Bengal, inter alia, by
approaching the Calcutta High Court to seek the necessary reliefs.
The order granted by the division bench of Calcutta High Court
accorded the requisite protection to the petitioners even to the
extent of calling upon the court of ACJM, Serampore, District
Hooghly, in the State of West Bengal, not to insist on their
personal presence provided, of course, that they are properly
represented.

16. Since the court of ACJM, Serampore, District Hooghly, in
the State of West Bengal, has issued process, it is only proper that
the petitioners appear appropriately (may be through counsel) in
the said court and raise all defences in fact, or law, as are available
to them, including on the question of propriety of the territorial
jurisdiction invoked by the third respondent. In the facts and
WP(Crl.) 241/2010 Page 9 of 10
circumstances, it would not be proper for this court to sit in
judgment over the said issues which, it must be said, at the cost of
repetition, include questions of facts – all the more so, because
remedies before the superior courts in the State of West Bengal are
available.

17. For transfer of a criminal case pending before the criminal
court of competent jurisdiction in one State to another in different
State, the power and jurisdiction of the Supreme Court, inter alia,
under Section 406 Cr. PC, being available, it is inappropriate for
this court to be exercising such jurisdiction at the present stage of
the proceedings in the criminal case in the writ jurisdiction under
Article 226 of the Constitution of India.

18. Thus, reserving all contentions of the petitioners concerning
the merits of the criminal case, the writ petition with pending
applications are disposed of giving liberty to the petitioners to
approach the competent courts in the State of West Bengal to seek
appropriate reliefs in accordance with law.

(R.K. GAUBA)
JUDGE
APRIL 17, 2017
yg

WP(Crl.) 241/2010 Page 10 of 10

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