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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Crl. Misc. M 25375 of 2015 7prima 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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Crl. Misc. M 25375 of 2015 8exercise 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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