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Shyamsunder Mittal And Others vs The State Of Punjab And Another on 17 July, 2018

Crl. Misc. M-20827-2017 -1-
Crl. Misc. M-8086-2018

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

(1)

Crl. Misc. M-20827 of 2017 (OM)
Date of Decision: July 17, 2018

Shyamsunder Mittal and others

…Petitioners

Versus

The State of Punjab and another

…Respondents

(2)

Crl. Misc. M-8086 of 2018

Saurav Mittal

…Petitioner

Versus

The State of Punjab and another

…Respondents

CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR

Present:- Mr. R.S. Rai, Senior Advocate with
Mr. Amit Jhanjhi, Advocate
for the petitioner(s) in both the petitions (CRM-M-20827 of
2017 CRM-M-8086 of 2018).

Ms. Rajni Gupta, Senior DAG Punjab.

Ms. Geeta Luthra, Senior Advocate with
Mr. Lovekirat Singh Chahal, Advocate
Mr. J.S. Bedi, Senior Advocate with
Mr. P.S. Ahluwalia, Advocate
for respondent No.2.

********

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JAISHREE THAKUR, J. (Oral)

1. By this common order, this court proposes to dispose of two

criminal miscellaneous petitions (CRM-M-20827 of 2017 CRM-M-8086

of 2018), which are arising out of FIR No.27 dated 09.05.2017, registered

under Sections 406, 498-A, 494 of Indian Penal Code at Police Station

Women Cell, Division No.7, Police Commissionerate, Jalandhar, Punjab.

Criminal Misc. No.M-20827 of 2017 has been preferred by Shyamsunder

Mittal, Mrs. Saroj Shyamsunder Mittal, Shashank Shyamsudner Mittal and

Smt. Payal Sitani whereas, Criminal Misc. No.M-8086 of 2018 has been

preferred by Saurav Mittal, seeking quashing of the aforesaid FIR as well as

the challan/final report.

2. In brief, the facts of the case are that a marriage was

solemnized between complainant-Sonakshi Mittal and Saurav Mittal

(petitioner in CRM-M-8086 of 2018) on 03.06.2015 at Gurgaon. It was

the second marriage for both concerned. On account of a matrimonial

dispute that arose between the parties, FIR No.27 dated 09.05.2017, under

Sections 406, 498-A, 494 of Indian Penal Code came to be registered on

complaints bearing No.674 dated 26.04.2017 and No.575 dated 08.04.2017.

In the said FIR, it was alleged that a marriage had been solemnized between

the complainant and Saurav Mittal on 03.06.2015 at Gurgaon. It was

further alleged that at the time of the wedding, gifts were exchanged and

approximately an amount of ` 12 crores was spent in the said marriage,

which included the expenditure for the stay of the family of the Saurav

Mittal and guests. After solemnization of the wedding, the complainant

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went to reside with her husband in Mumbai where all her gold, diamond

and costly articles were taken away from her and kept by the parents of the

Saurav Mittal. Allegations of demand of dowry were also raised, while also

submitting that the complainant’s husband under the influence of drugs had

subjected her to unnatural sex against her wishes, while they were in Turkey

and despite resistance, continued to subject her to the same. Complainant

was threatened with dire consequences in case, she would disclose the

same to her parents. That on 26.07.2015, she also received serious cuts and

injuries on her arm and despite the fact that her in-laws were aware of this,

they did not report the matter to the police. There is an allegation in the FIR

regarding demand of ` 2 crores as well, apart from narrating the various

incidents of cruelty and demand of dowry and inhuman treatment meted out

to her during her pregnancy, the complainant has alleged that she was

subjected to assault and offence which is punishable under Section 377 of

Indian Penal Code. It is stated that on account of inhuman behaviour, the

complainant had no option, but to leave her matrimonial home. A

supplementary statement was suffered by her father in which it was stated

that on the night of 03.08.2015, he was a witness to his daughter being

subjected to an offence punishable under section 377 IPC at Jalandhar when

his daughter was with them and his son-in-law had come to visit.

3. Mr. R.S. Rai, learned Senior counsel, assisted by Mr. Amit

Jhanjhi, Advocate, while advancing arguments on behalf of the petitioners

in CRM-M-20827-2017 argued that the instant petition has been field at

Jalandhar, is not sustainable since, the courts at Jalandhar would have no

jurisdiction to entertain the matter. It is argued that the marriage between

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the parties was solemnized at Gurgaon and thereafter, the complainant

started residing with her husband and in-laws. It is argued that all the

allegations that have been raised regarding Saurav Mittal being drug addict

and in the habit of consuming alcohol is untrue, while submitting that

Saurav Mittal and the complainant have travelled abroad for their

honeymoon for Turkey and Greece, which expenses were borne by the son

of petitioners No.1 and 2, Saurav Mittal. It is also submitted that all the

expenses regarding birth of the baby girl Maira was born by their family. It

is also submitted that after 40 days of the delivery, the complainant desired

to go to Jalandhar for attending a marriage of a close relative and at that

time, she had taken all her jewellery with her given at the time of marriage

by the petitioners No.1 and 2 and her parents. It is also submitted that every

effort was made to reconcile the differences between Saurav Mittal and the

complainant, which did not fructify. It is argued that no offence whatsoever

has taken place at Jalandhar, therefore, the courts at Jalandhar would have

no jurisdiction to entertain the same and the same ought to be transferred

either at Mumbai or at Gurgaon.

4. Learned Senior counsel, while advancing arguments on behalf

of the petitioner in CRM-M-8086-2018 argued that the supplementary

challan dated 18.11.2017, vide which the petitioner has been challaned

under Section 377 of Indian Penal Code, ought to be quashed. It is

submitted that a reading of the statement of Dr. Bhawna Gupta w/o

Ravinder Kumar Gupta would reveal that no internal check up was done on

Sonakshi Mittal, who came to her for a medical check up in OPD. In the

medical history, it has been informed that unnatural sex has been performed

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upon her about 6-7 days ago. The doctor had prescribed her certain tests

and asked her to come back with the reports. It is argued that a

supplementary statement has been suffered by Sanjay Goel, father of the

complainant, which is to the effect that on the night of 03.08.2015, when he

got up at night, he heard shrieks of his daughter Sonakshi from inside.

When he looked inside from window, he saw that his son-in-law has been

committing unnatural sex with his daughter against her wish. Learned

Senior counsel submits that the entire statement has been made only to

harass the petitioner(s) and to draw jurisdiction at the courts at Jalandhar. It

is argued that Dr. Bhawna Gupta is an Ayurvedic doctor and not a

gynecologist. It is also argued that in case, the offence of Section 377 IPC

had taken place on the night of 03.08.2015, she should have gone to a

regular gynecologist, while also arguing that the complainant left in the

company of the Saurav Mittal and returned to Bombay and thereafter, a

female child was born 18.04.2016. In support of his arguments, learned

Senior counsel relied upon judgments rendered in Amarendu Jyoti and

others vs. State of Chhatisgarh and others, 2012(12) SCC 363, Bhura

Ram and others vs. State of Rajasthan and another, 2008(2) RCR

(Criminal) 761, Manish Ratan and others vs. State of M.P. And

another, 2007(1) RCR (Criminal) 513, Y. Abraham Ajith and others vs.

Inspector of Police, Chennai and another, 2004(3) RCR(Criminal) 988,

Naresh Kumar and others vs. Chanchal Rani and others, 2010(2) RCR

(Criminal) 668.

5. Per contra, Ms. Geeta Luthra, learned Senior Counsel assisted

by Mr. Lovekirat Singh Chahal and Mr. J.S. Bedi, Senior Advocate, assisted

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by Mr. P.S. Ahluwalia appearing on behalf of the complainant would submit

that there was a demand of dowry at Jalandhar itself, apart from that the

offences under Section 377 IPC has been committed at Jalandhar. It is

submitted that though the parties resided in Mumbai, but the demand of

dowry was made at Jalandhar itself, when the in-laws of the complainant

came to Jalandhar, and therefore, it is a continuous offence. It is also

argued that the medical available on the record would show that the

complainant had gone to Sethi Hospital and was attended by Dr. Bhawna

Gupta, who is a lady doctor and therefore, it cannot be said that she had

gone to an Ayurvedic doctor. In support of their arguments, learned Senior

counsel relied upon judgments rendered in Sunita Kumari Kashyap vs.

State of Bihar and another, 2011(3) RCR (Criminal) 26, Shiv Dayal

Arora and another vs. Smt. Renu Arora, 2007(3) RCR (Criminal) 10,

Gaganpreet Kaur vs. Senior Superintendent of Police, U.T. Chandigarh

and others, 2009(1) RCR (Criminal) 394.

6. I have heard learned counsel for the parties and with their

assistance have gone through the pleadings of the case.

7. Two fold questions arises to be determined:

(i) Whether the courts at Jalandhar would have the jurisdiction to try the

offences under the said FIR?

(ii) Whether the offence under Section 377 of IPC is made out and the

challan quashed?

8. A reading of the FIR would clearly reflect that there is a

demand of dowry of ` 2 crores made by the petitioner(s) herein and when

the complainant refused to ask for the amount of ` 2 crores from her

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parents, she was sent to Jalandhar with the instructions to bring the above

said demanded amount from her parents, otherwise, she should not return to

their house. It is stated that the parents of the complainant, however,

expressed their inability to pay the demanded amount. There are specific

allegations in the FIR that “the parents of Saurav Mittal then came to

Jalandhar on 23rd of November, 2015 and visited the house of the parents of

the applicant and on their visit, the applicant started thinking that they have

probably come to Jalandhar in order to take her back, but was surprised

when the parents of respondent demanded the payment of Rs.2 crores from

her parents as a condition precedent for taking back the applicant to their

house.” Apart from above, in the supplementary statement that has been

suffered by father of the complainant, it has been stated that there was an

offence of Section 377 of Indian Penal Code having been committed at

Jalandhar, on the night of 03.08.2015. Moreover, there is also allegation

that calls were made by the petitioner(s) to her parents residing at

Jalandhar demanding dowry. Section 180 of Code of Criminal Procedure

provides for place of trial where act is an offence by reason of relation to

other offence. Law in regard to jurisdiction to try an offence is well

settled. Section 177 of Code of Criminal Procedure stipulates that every

offence should be inquired into and tried by the Court within whose local

jurisdiction, the offence was committed. The argument raised by learned

Senior counsel for the petitioner(s) that the marriage was performed in

Gurgaon and alleged maltreatment and demand of dowry was at Mumbai

would have been sustainable, if there were no allegations in the FIR that the

parents of Saurav Mittal came to Jalandhar on 23.11.2015 and at that time,

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made a demand of ` 2 crores from her parents, as a condition precedent for

taking back the complainant to her matrimonial home. The supplementary

statement that has been recorded on the basis of which a supplementary

challan has been presented, clearly alleges that an incident took place on the

night of 03.08.2015 at Jalandhar itself between Saurav Mittal and the

complainant, which has led to adding of Section 377 IPC as well. Therefore,

the argument raised that jurisdiction would lie either at Mumbai or at

Gurgaon, is clearly not sustainable. The case law relied upon in Y.

Abraham Ajith and others vs. Inspector of Police, Chennai and anr,

2004(3) RCR (Criminal) 988, would not be applicable to the instant case.

The complainant therein had filed proceedings at Nagercoil alleging

harassment on account of demand of dowry and thereafter, she left

Nagercoil and came to live at Chennai and instituted proceeding there. In

the complaint, there was no allegation of demand of dowry at Chennai,

which led the Supreme Court to arrive at a conclusion that there was no

cause of action arisen at Chennai and it is on these basis, the complaint

came to be quashed. Whereas, in the case of Sunita Kumari Kashyap vs.

State of Bihar and another, 2011(3) RCR (Criminal) 26, judgment relied

upon by counsel for the respondent, the Supreme Court while taking note of

the judgment rendered in Y. Abraham Ajith and others case (supra)

declined to interfere in the said matter on account of specific allegations

made in the complaint stating that the complainant had been maltreated and

treated cruelly at the hands of husband and relatives at Ranchi. It was

because of cruelty meted out and on account of insufficient dowry, she was

taken to her parental home at Gaya by her husband with dire consequence

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for not fulfilling demand of dowry. It was held that both Courts at Ranchi

and Gaya would be competent to entertain the proceedings since there was

also a demand of dowry at Gaya. Unlike in the case of Y. Abraham Ajith

and others and the other case law relied upon by the petitioners there is

allegation that a demand was made from the respondent at Jalandhar and

thus case law relied upon would not be applicable to the peculiar facts and

circumstances of the present case. Therefore, in the instant case, on the basis

of the supplementary statement given and the contents of the FIR, this court

has no hesitation in holding that the courts at Jalandhar would have the

territorial jurisdiction to try the offence under the FIR.

9. The second limb of argument that the offence under Section

377 of IPC is not made out and the supplementary challan ought to be

quashed, is again not sustainable. In this regard, the argument that the

complainant had gone to an Ayurvedic doctor whereas, she should have

gone to a gynecologist, is at the present moment an argument, which is not

appealable to the court, considering the fact that she did go to Sethi Hospital

and was treated by Dr. Bhawna Gupta, who is shown to be a lady doctor. A

perusal of the medical slip shows that the said hospital is equipped to deal

with the gyane problems. There are specific allegations that have been

made in the supplementary challan that the offence under Section 377 IPC

has been added on the basis of evidence that is currently available. The

argument raised that the complainant had accompanied her husband Saurav

Mittal back to Mumbai after the incident of 03.08.2015 and thereafter the

complainant delivered a child, are arguments that are to be taken at the time

of their defence and these cannot be looked into at the present moment. This

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court is not inclined to interfere in this question at this stage, since these are

all disputed question of facts, which cannot be answered either way at the

present moment and can only be decided, after both the parties led their

evidence in support of their allegations so levelled.

10. In view of the foregoing discussion and ratio of law, both the

petitions in hand are hereby dismissed, being devoid of any merits.

11. Anything observed or said by this court hereinabove shall have

no affect on the merits of the case (which is to be decided on the basis of

evidence led), as any observation is for the purpose of deciding the

petitions in hand.

(JAISHREE THAKUR)
July 17, 2018 JUDGE
vijay saini

Whether speaking/reasoned Yes/No
Whether reportable Yes/No

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