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Rajesh Kumar Gupta vs State Of Punjab And Another on 8 February, 2018

Crl. Misc. M 25375 of 2015 1

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

(1) Crl. Misc. M 25375 of 2015 (OM)
Date of decision: February 8, 2018

Rajesh Kumar Gupta
…Petitioner
Versus
State of Punjab and another
…Respondents

(2) Crl. Misc. M 41457 of 2015 (OM)

Rakesh Kumar Gupta
…Petitioner
Versus
State of Punjab and another
…Respondents

CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR

Present: Mr. R.S. Bajaj, Advocate,
for the petitioners.

Mr. A.S. Sandhu, Additional Advocate General, Punjab.

Mr. R.K. Arya, Advocate,
for respondent No.2.

JAISHREE THAKUR, J.

1. By this common judgment, this court proposes to dispose of the

two aforesaid mentioned criminal miscellaneous petitions filed under

Section 482 of the Code of Criminal Procedure for quashing FIR No. 62

dated 14.07.2012 (Annexure P/1) registered at Police Station Kahnwan,

District Pathankot, under Sections 406, 498-A and 420/34 IPC and all

consequential proceedings arising there under, as they arise out of the

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similar set of facts and a common law point is involved. For the sake of

brevity, facts have been taken from CRM- M-25375 of 2015 Rajesh Kumar

Gupta versus State of Punjab and another.

2. In brief, the facts as stated are that a marriage was solemnized

between Arun Kumar Gupta, brother of the petitioner, and Pramila Devi on

14.2.2006 in Amritsar, according to Hindu religious rites and ceremonies.

Respondent No. 2 that is the complainant shifted to England in March 2006

and continued to reside there with her husband, the brother of the petitioner.

The petitioners are permanent resident of United Kingdom and residing

separately from their brother. In June 2010 Arun Kumar Gupta along with

his wife came to India . The family members of respondent No. 2 planned

for going on a pilgrimage to Mata Vaishno Devi on 06.06.2010. Respondent

No. 2 accompanied them and while they were away Arun Kumar Gupta

returned to England. On her return respondent No. 2 came to know that he

had also taken her important documents along with him and thereafter

contacted her husband on phone. She was assured that he would send the

documents back to her in Amritsar. The documents were sent but they were

received by respondent No. 2 in a spoiled condition. Resultantly, she could

not travel on them. Thereafter, she got FIR No. 62 dated 14.07.2012

(Annexure P/1) registered at Police Station Kahnwan, District Pathankot,

under Sections 406, 498-A and 420/34 IPC against her husband Arun

Kumar Gupta, his real brothers Rajesh Kumar Gupta, Rakesh Kumar Gupta

alleging that at the time of marriage her parents spent more than their

capacity, i.e `2 lakhs in cash while giving 28 of grams of gold and other

articles including air-conditioner, fridge, TV, CD player. It was further

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stated in the F.I.R that her husband used to harass her with repeated

demands of `5 lakhs. It was also stated that a fraud had been played upon

her. After the registration of the FIR, the challan was presented against Arun

Kumar Gupta and his two brothers. Since the petitioners were not residing in

India at the time of the registration of FIR, they were not served with any

summons, consequently were declared proclaimed offender by the trial court

by order dated 2.1.2014. Thereafter, the petitioner on coming to India

submitted bail bonds and is facing trial. Aggrieved against the proceedings

the instant petition for quashing of FIR has been preferred.

3. Mr. R.S Bajaj, learned counsel appearing on behalf of

petitioner, contends that the FIR registered is nothing but an abuse of the

process of law with an attempt to harass the family members of the husband

of the complainant. It is argued that the petitioner is a British citizen and is

residing in England alongwith his family since 1978. In fact, he did not

attend the marriage of respondent No. 2, nor did he participate in the said

marriage in the year 2006. He came to India in the year 2010 for a short

duration of a month and left immediately thereafter. The allegation of

respondent No. 2 that she was harassed and given beatings while she was

residing in England are blatantly false as the petitioner is residing at a

distance of about 175 km from the matrimonial home of respondent No. 2-

complainant and had nothing to do with their daily life. The complainant

and her husband used to visit India on an annual basis and no complaint was

ever submitted to any person either in England or in India. Moreover, after

the registration of the impugned F.I.R, a detailed investigation was done by

SP (HQ) Pathankot, who gave his report declaring the petitioner innocent.

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However, without taking the report into consideration supplementary

challan against the petitioner has presented. It is also argued that the

complainant and her husband Arun Kumar Gupta were residing in England

after solemnizing of their marriage and any offence would be within the

territorial jurisdiction of United Kingdom and the courts in India would not

be competent to do so.

4. Reply to the instant petition has been filed by both the

respondent–State and respondent No.2–complainant. Mr. R.K. Arya,

learned counsel appearing on behalf of the complainant and Mr. A.S.

Sandhu Additional Advocate General, argue that there are serious

allegations in the FIR against the petitioner herein as he is the person who

instigated Arun Kumar Gupta, husband of the complainant, to demand cash

of `5 lakhs. It is argued that the report prepared by SP headquarters

Pathankot, declaring the petitioner innocent was never approved of and

cannot be taken into consideration.

5. I have heard the counsel for the parties and with their assistance

perused the pleadings.

6. Admittedly, a marriage took place between Arun Kumar Gupta

and the complainant Promila Devi in the year 2006. After marriage the

parties resided together in England and there seems to have been no

complaint made during that time either before the authorities there or during

any of their annual visits to India. A reading of the FIR does not reveal that

the petitioner herein attended the marriage of Arun Kumar Gupta with the

complainant or that there was any entrustment of any dowry articles. There

is no mention in the said F.I.R of any gold ornaments etc. having been given

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to the petitioner. In fact, only general allegations have been made stating

that there was a demand of dowry by the in-laws family. All the allegations

are against her husband Arun Kumar Gupta that he returned to England in

her absence along with her jewellery, her passport, identity card, air tickets

and other documents while also taking away `1 lakh with him. In fact, the

only allegation in the FIR against the petitioner is that on asking about the

whereabouts of her husband, from her brother-in-law Rakesh Kumar Gupta,

she was informed that he had returned to UK. In the FIR there is no mention

about the petitioner Rajesh Kumar Gupta. It is only in the supplementary

challan presented that there is a reference of the petitioners, namely Rajesh

Kumar Gupta and Rakesh Kumar Gupta, instigating husband of the

complainant to raise a demand of `5 lakhs from her when they used to visit

her home.

7. In the reply filed to the petitioner for quashing of a FIR, there is

no denial that the petitioners herein are permanent residents of England and

residing separately at a distance of 175 km from the matrimonial home of

the complainant. Even if for the sake of argument, it is taken into account

that the petitioners herein instigated their brother to raise a demand of `5

lakhs from the complainant, it was a demand that was raised in England,

outside the territorial jurisdiction of the courts at Bhatinda. Therefore, the

offence, if any, had been committed in England. A similar case came up for

hearing before the Supreme Court in Harmanpreet Singh Ahluwalia and

others Versus State of Punjab and others 2009 (2) RCR (Criminal) 956,

wherein the parties were residing in Canada and FIR was registered at

Jalandhar alleging demand of dowry and misappropriation of dowry articles.

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The proceedings were quashed holding that the Jalandhar court would have

no jurisdiction to entertain the matter. Similarly in the instant case, even if

there was an instigation at the behest of the petitioners for demand of `5

lakhs from the complainant, the said demand was raised outside the

territorial jurisdiction of Bhatinda and, therefore, the courts are not

competent to entertain the matter.

8. Even otherwise there is no specific role or injury or demand of

dowry or entrustment of dowry articles /istridhan or misappropriation of the

same against the petitioners herein. It is apparently clear that the F.I.R has

been registered against the petitioners herein only to harass the family

members. The Supreme Court in Preeti Gupta and another versus State of

Jharkhand and another (2010) 7 Supreme Court Cases 667 had no

hesitation in quashing the Criminal Complaint under Sections 498A, 406,

341, 323, and 120 B of IPC read with Sections 3 and 4 of the Dowry

Prohibition Act, qua married sister-in-law and unmarried brother-in-law

who were residing separately. It was observed as under:-

“18. The powers possessed by the High Court under Section

482 of the Code are very wide and the very plenitude of the

power requires great caution in its exercise. The court must be

careful to see that its decision in exercise of this power is based

on sound principles. The inherent powers should not be

exercised to stifle a legitimate prosecution, but the Court’s

failing to use the power for advancement of justice can also

lead to grave injustice.

19. The High Court should normally refrain from giving a

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prima facie decision in a case where all the facts are

incomplete and hazy; more so, when the evidence has not been

collected and produced before the court and the issues

involved, whether factual or legal, are of such magnitude that

they cannot be seen in their true perspective without sufficient

material. Of course, no hard-and-fast rule can be laid down in

regard to cases in which the High Court will exercise its

extraordinary jurisdiction of quashing the proceedings at any

stage.

29. Admittedly, Appellant No.1 is a permanent resident of

Navasari, Surat, Gujarat and has been living with her husband

for more than seven years. Similarly, Appellant No.2 is a

permanent resident of Goregaon, Maharashtra. They have

never visited the place where the alleged incident had taken

place. They had never lived with respondent No.2 and her

husband. Their implication in the complaint is meant to harass

and humiliate the husband’s relatives. This seems to be the only

basis to file this complaint against the appellants. Permitting

the complainant to pursue this complaint would be an abuse of

the process of law.”

9. In B.S. Joshi and others vs. State of Haryana and another,

(2003) 4 Supreme Court Cases 675, the Hon’ble Supreme Court has

observed :-

“If for the purpose of securing the ends of justice, quashing of

FIR becomes necessary, Section 320 would not be a bar to the

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exercise of power of quashing. It is, however, a different matter

depending upon the facts and circumstances of each case

whether to exercise or not such a power. Thus, the High Court

in exercise of its inherent powers can quash criminal

proceedings or FIR or complaint and Section 320 of the Code

does not limit or affect the powers under Section 482 of the

Code.”

10. Recently, in the case of Rajesh Sharma and others vs. State

of U.P. and another (Criminal Appeal No.1265 of 2017, decided on

27.07.2017) the Hon’ble Supreme Court has observed that “….there is need

to check the tendency to rope in all family members to settle a matrimonial

dispute. Omnibus allegations against all relatives of the husband cannot be

taken at face value when in normal course it may only be the husband or at

best his parents, who may be accused of demanding dowry or causing

cruelty. To check abuse of over implication, clear supporting material is

needed to proceed against other relatives of a husband.”

11. In the case in hand, the petitioners are brothers-in-law of the

complainant, residing separately from the complainant and their brother in

England, that too at a considerable distance. Not a single instance has been

given as to when or as to how or in what manner petitioners herein are

involved in the commission of alleged offences. There is no averment to the

effect that a complaint had been lodged in England or any time prior to

thereto when the complainant used to visit India.

12. In view of the foregoing discussion and ratio of law laid down

by the Hon’ble Supreme Court in Preeti Gupta and another vs. State of

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Jharkhand and another, in B.S. Joshi and others vs. State of Haryana

and another, in Rajesh Sharma and others vs. State of U.P. and another

and Harmanpreet Singh Ahluwalia (Supra), this court is of the

considered view that there is no specific allegation/details against the

petitioners, to constitute an offence under Sections 406, 498-A and 420/34

of Indian Penal Code.

13. In view of the above, the instant petitions are allowed.

Consequently, the FIR No. 62 dated 14.07.2012 (Annexure P/s1) registered

at Police Station Kahnwan, District Pathankot under Sections 406, 498-A

and 420/34 IPC and all consequential proceedings arising there under qua

the petitioners herein are quashed.

February 8, 2018 (JAISHREE THAKUR)
prem JUDGE

Whether speaking/reasoned Yes
Whether reportable No

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