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Sunita Sudam Sakhare And Anr. vs Judicial Magistrate Iii Lko. And … on 1 October, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved

Court No. – 11

Case :- U/S 482/378/407 No. – 8493 of 2017

Applicant :- Sunita Sudam Sakhare And Anr.

Opposite Party :- Judicial Magistrate Iii Lko. And Anr.

Counsel for Applicant :- Sarvesh Kumar Tiwari,Priyanka Singh

Counsel for Opposite Party :- Govt. Advocate,Arvind Kumar Shukla,Gaurav Saxena,Hari Shankar,Juhi Saxena,Lala Chauhan,Neeraj Kumar Saxena,Rajni Saxena,Rishi Saxena,Sheena Saxena,Sushil Kumar Verma,Viksit Srivastava

Hon’ble Rajeev Singh, J.

Heard Shri Rakesh D. Kumar and Ms. Priyanka Singh, learned counsel for the applicants and Shri Neeraj Kumar appearing for the complainant-respondent no. 2.

This application has been filed for quashing of the summoning order dated 12.05.2017 passed by Additional Chief Judicial Magistrate, Room No. 29, Lucknow in Case No. 2110 of 2016 (Pallavi Saxena Vs. Sushil Sudam Sakhare), under Sections 323 and 498-A, P.S. Gomti Nagar, Lucknow as well as non-bailable warrant dated 20.11.2017.

Respondent no. 2, alleging her victimization by the applicants, has initiated the impugned proceedings under Sections 498-A, Section323, Section504, Section506, Section406, Section384 I.P.C. and Section 3/4 D.P. Act, P.S. Gomti Nagar, District Lucknow, which was lodged as Case No. 2110 of 2016. Additional Chief Judicial Magistrate, Court No. 29, Lucknow vide impugned order dated 12.05.2017 has summoned the applicants.

Gist of the allegation in the complaint is that applicant no. 2 on the basis of false promises, proposed respondent no. 2 for marriage, even when she was already married. Further allegation in the complaint is that under his delusion, respondent no. 2 broke her marriage and thereafter solemnized marriage with applicant no. 2. However, for marriage, applicants demanded Rs.10 lacs as also jewellery amounting to Rs.5 lacs. It has further been alleged that after marriage, applicant no. 2 and his family members started victimizing her. Even when applicant no. 2 had taken her to Belgium, he tortured respondent no. 2-complainant and she was forced to do the works even when she was ill. It has also been alleged in the complaint that when the police had not registered her F.I.R., then the instant complaint has been filed by respondent no. 2 before the court below, which was registered as Complaint Case No. 1829 of 2016 (Pallavi Saxena Vs. Sushil Sudam Sakhare).

In her statement recorded under Section 200 Cr.P.C., she stated that respondent no. 2 as well as applicant no. 2 were well known to each other since 2010 as they were co-worker in a company and applicant no. 2 was keen to solemnize marriage with her, but her marriage was solemnized with Anuj Bhatnagar. She has further stated that the said marriage was broken on the initiation of the applicant no. 2. Thereafter, respondent no. 2 went to Germany for completing her Masters degree on 4th August, 2013. On 24th August, 2013, applicant no. 2 met her and proposed for marriage and with the consent of family members, their marriage was solemnized. However, before marriage applicants demanded Rs.10 lacs and jewellery amounting to Rs.5 lac, but her parents could only give Rs. 3 lacs in cash and jewellery amounting Rs. 5 lacs. It has further been alleged that under the direction of her mother-in-law (applicant no. 1), respondent no. 2 was forced to do domestic work while she was suffering from fever. On 9th January, 2015, her mother-in-law took her jewellery. On the next day, she went with applicant no. 2 to Belgium. She has also stated in her statement under Section 200 Cr.P.C. that her father had also given Rs.2,80,000/-. She further stated that applicant no. 2 restrained her to join any job in the Belgium and her mother-in-law abused her on the video chat. She has also stated that applicant no. 2 had borrowed money from one Pundrik Singh in U.S.A. and forced her father to pay the same. She has further stated that applicant no. 2 tried to press her throat and under compulsion, a suicide note was also taken in her handwriting. She has also stated that her husband-applicant no. 2 wanted to solemnize marriage with one Suchita.

Statements of the parents of respondent no. 2 were also recorded under Section 202 Cr.P.C., in which they reiterated the version of their daughter.

Certified copies of the statements recorded under Section 200 and Section202 Cr.P.C., which have been produced, are taken on record.

Learned counsel for the applicants while posing a totally different picture, has narrated the facts, in short, as under:

Applicant no. 2, who is M.Tech from I.I.T., Mumbai, was working in the office of S.T. Micro Electronics (NOIDA), where he met respondent no. 2 (B.E. from Germany) in April, 2010, as office co-worker. Thereafter, applicant no. 2 left the job and came back to Mumbai and joined Netlogic Microsystem in November, 2010. However, respondent no. 2 used to make call to applicant no. 2 on phone and sometimes, she called him for about 15 to 16 times in one day, without any reason. In the meantime, respondent no. 2 solemnized marriage with one Anuj Bhatnagar, which was, later on, broken. In April, 2013, applicant no. 2 shifted to Belgium. Respondent no. 2 had also gone to Germany for her Masters degree and allured applicant no. 2 for marriage. Accordingly, applicant no. 2 convinced his parents for his marriage with respondent no. 2 and, thus, their marriage was solemnized on 28th December, 2014 at Mumbai and thereafter they went to Belgium on 10th January, 2015 and till 18th April, 2016, respondent no. 2 was with applicant no. 2 outside the India. However, during this period, the behavior of respondent no. 2 was such a cruel that applicant no. 2 came to India and filed Divorce Petition No. 1837 of 2016 (Sushil S. Sakhare Vs. Pallavi Saxena) in the family court at Bandra, Mumbai on 29th June, 2016.

Submission of the learned counsel for the applicants is that the impugned proceedings have been initiated by respondent no. 2, on false and fabricated grounds, only in counter blast of Divorce Petition No. 1837 of 2016 filed by applicant no. 2. It is further submitted that from the memo of the Complaint No. 1829 of 2016 dated 15th September, 2016 itself, it is evident that all the accused persons/applicants are residents of Mumbai. He has further submitted that after issuance of notice in the divorce petition, respondent no. 2, in order to make pressure on the applicants, filed the impugned complaint as a counter blast on 15th September, 2016. Drawing attention of the Court towards paras 8, 26 and 32 of the complaint, learned counsel for the applicant has submitted that the incidents are related to the alleged victimization of respondent no. 2 in Mumbai in between 28th December, 2014 up to 9th January, 2015. Allegations in the rest of the paragraphs are alleged since 10th January, 2015 up to 26th July, 2017 are made in regard to the incidents, which had allegedly been taken in Belgium/USA/Ireland. It is, thus, submitted that none of the alleged offences can be inquired into or tried in India by any court, including the court of Additional Chief Judicial Magistrate-VIII, Lucknow Learned counsel for the applicants has also submitted that not even a single penny was taken by the parents of applicant no. 2 in his marriage, because it was a marriage of choice by applicant no. 2 in passion of love. Learned counsel for the applicants has also submitted that respondent no. 2 has wrongly stated in her statement that her marriage was solemnized as per Hindu rituals, but the correct fact is that the marriage was solemnized in accordance with Buddhism rituals as she adopted Buddhism by performing the required rituals and the certificate in this regard was also issued by the Budhhist Society of India. Learned counsel for the applicant has vehemently submitted that in support of the complaint, not even a single document has been placed before the court below in support of the allegations, but the impugned summoning order dated 12.05.2017 has wrongly and illegally been passed by the concerned Magistrate. It has also been submitted that the court below had also failed to verify the contents of para 118 mentioned in the complaint to the effect that complainant had tried to made complaint to the police, but the same was not lodged.

Further submission of the learned counsel for the applicants is that since all the incidents mentioned in the statements of respondent no. 2 and her parents, had taken place either in Mumbai or outside India, the Magistrate had to follow the procedure prescribed in Section 202(1) of the Code of Criminal Procedure, but he failed to do so. He has also submitted that since the alleged offences were committed outside India, therefore, previous sanction of Central Government is mandatory, however, in the present case, neither the mandatory provisions of Section 202 nor Section 188 Cr.P.C. have been complied with.

Learned counsel for the applicants while drawing the attention of the Court again towards the statement of respondent no. 2 made under Section 200 Cr.P.C., has submitted that she herself admitted that though she was brutally beaten by applicant no. 2, but neither this information was given to the local police nor she had got her medical examination.

Learned counsel for the applicants has placed reliance on the decision of the Hon’ble Supreme Court in the case of Thota Venkateswarlu Vs. State of Andhra Pradesh Anr., (2011) 9 SCC 527 as also the decision of this Court in the case of Prabhat Chaturvedi Vs. State of U.P. Anr., 2013 SCC OnLine All 13121.

On the contrary, learned counsel appearing for respondent no. 2 has submitted that there is no illegality in the impugned order, as demand of Rs.10 lacs in cash and jewellery amounting Rs.5 lacs was made two months prior to the marriage by in-laws and when the parents of respondent no. 2 could only give Rs.3 lacs as cash and jewellery amounting to Rs.5 lacs, she was forced by the applicant no. 2 and his family members to do the domestic works, even when she was in fever. He has further submitted that on 9th January, 2015, all jewellery was taken by in-laws of respondent no. 2 before she went to Belgium. In Belgium also, respondent no. 2 was being assaulted by applicant no. 2, as also by her in-laws through video chat. Further submission of the learned counsel for the respondent no. 2 is that as the marriage was solemnized on 28th December, 2014 and up to 9th January, 2015, respondent no. 2 was in Mumbai and was being victimized by her in-laws, including the applicants, therefore, there is no illegality in the impugned order and there is no necessity to get sanction from the Central Government before proceeding in the matter, and it is not obligatory on the part of the Magistrate to order for inquiry as provided under Section 202 Cr.P.C., if the accused persons are residing beyond his jurisdiction.

Placing reliance on the decision of the High Court of Andhra Pradesh reported in Manu/AP/0322/1997, Ramesh Venkat Perumal Vs. State of Andhra Pradesh Ors., learned counsel for respondent no. 2 has submitted that cruelty in relation to Section 498-A I.P.C. is a continuing offence, which started after marriage and, therefore, sanction of Central Government under Section 188 Cr.P.C. is not required, as the offence started in India. He further submitted that even if most of the part of the offence was committed outside India, then also the sanction is not required.

I have considered the arguments advanced by the learned counsel for the parties and gone through the records.

It is undisputed that applicant no. 2 and respondent no. 2 were well known to each other as a co-worker in a company at NOIDA in the year 2010. Thereafter, applicant no. 2 came back to Mumbai and later on, he joined in Belgium. In the meantime, marriage of respondent no. 2 was solemnized with one Anuj Bhatnagar, but the same was broken and thereafter respondent no. 2 also went to Germany for her further studies. They met each other again and thereafter their marriage was solemnized on 28th December, 2014. It is also undisputed that respondent no. 2 lived in the family of applicant no. 2 since 29th December, 2014 to 9th January, 2015, i.e., for 12 days in India and rest of the incidents, as alleged in the complaint, had taken place either in Belgium, USA or in Ireland.

It is also evident from the order dated 12.05.2017 that the court below while passing the impugned order has failed to comply the provisions of Section 202(1) Cr.P.C., as inserted by Act No. 25 of 2005.

Hon’ble Supreme Court in the case of Birla Corporation Ltd. Vs. Adventz Investments and Holdings Ltd. Ors., 2019 SCC OnLine SC 682 has categorically held that after inserting the aforesaid amendment, it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall inquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused. The object of the amendment is to ensure that persons residing at far off places are not harassed by filing false complaints making it obligatory for the Magistrate to enquire. Notes on clause 19 provides that false complaints are filed against persons residing at far off places simply to harass them. In order to see that the innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction, he shall inquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.

Relevant portion of the judgment is quoted hereunder:

“26. Complaint filed under Section 200 Cr.P.C. and enquiry contemplated under Section 202 Cr.P.C. and issuance of process:-Under Section 200 of the Criminal Procedure Code, on presentation of the complaint by an individual, the Magistrate is required to examine the complainant and the witnesses present, if any. Thereafter, on perusal of the allegations made in the complaint, the statement of the complainant on solemn affirmation and the witnesses examined, the Magistrate has to get himself satisfied that there are sufficient grounds for proceeding against the accused and on such satisfaction, the Magistrate may direct for issuance of process as contemplated under Section 204 Cr.P.C. The purpose of the enquiry under Section 202 Cr.P.C. is to determine whether a prima facie case is made out and whether there is sufficient ground for proceeding against the accused.

27. The scope of enquiry under this section is extremely restricted only to finding out the truth or otherwise of the allegations made in the complaint in order to determine whether process should be issued or not under Section 204 Cr.P.C. or whether the complaint should be dismissed by resorting to Section 203 Cr.P.C. on the footing that there is no sufficient ground for proceeding on the basis of the statements of the complainant and of his witnesses, if any. At the stage of enquiry under Section 202 Cr.P.C., the Magistrate is only concerned with the allegations made in the complaint or the evidence in support of the averments in the complaint to satisfy himself that there is sufficient ground for proceeding against the accused.

28. SectionIn National Bank of Oman v. Barakara Abdul Aziz (2013) 2 SCC 488, the Supreme Court explained the scope of enquiry and held as under:–

“9. The duty of a Magistrate receiving a complaint is set out in Section 202 CrPC and there is an obligation on the Magistrate to find out if there is any matter which calls for investigation by a criminal court. The scope of enquiry under this section is restricted only to find out the truth or otherwise of the allegations made in the complaint in order to determine whether process has to be issued or not. Investigation under Section 202 CrPC is different from the investigation contemplated in Section 156 as it is only for holding the Magistrate to decide whether or not there is sufficient ground for him to proceed further. The scope of enquiry under Section 202 CrPC is, therefore, limited to the ascertainment of truth or falsehood of the allegations made in the complaint:

(i) on the materials placed by the complainant before the court;

(ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and

(iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.”

29. In Mehmood Ul Rehman v. Khazir Mohammad Tunda (2015) 12 SCC 420, the scope of enquiry under Section 202 Cr.P.C. and the satisfaction of the Magistrate for issuance of process has been considered and held as under:–

“2. Chapter XV SectionCr.P.C. deals with the further procedure for dealing with “Complaints to Magistrate”. Under Section 200 Cr.P.C, the Magistrate, taking cognizance of an offence on a complaint, shall examine upon oath the complainant and the witnesses, if any, present and the substance of such examination should be reduced to writing and the same shall be signed by the complainant, the witnesses and the Magistrate. Under Section 202 Cr.P.C, the Magistrate, if required, is empowered to either inquire into the case himself or direct an investigation to be made by a competent person “for the purpose of deciding whether or not there is sufficient ground for proceeding”. If, after considering the statements recorded under Section 200 Cr.P.C and the result of the inquiry or investigation under Section 202 Cr.P.C, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he should dismiss the complaint, after briefly recording the reasons for doing so.

3. Chapter XVI SectionCr.P.C deals with “Commencement of Proceedings before Magistrate”. If, in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, the Magistrate has to issue process under Section 204(1) Cr.P.C for attendance of the accused.”

30. Reiterating the mandatory requirement of application of mind in the process of taking cognizance, in SectionBhushan Kumar v. State (NCT of Delhi) (2012) 5 SCC 424, it was held as under:–

“11. SectionIn Chief Enforcement Officer v. Videocon International Ltd. (2008) 2 SCC 492 (SCC p. 499, para 19) the expression “cognizance” was explained by this Court as “it merely means ”become aware of’ and when used with reference to a court or a Judge, it connotes ”to take notice of judicially’. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.” It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code.”

31. Under the amended sub-section (1) to Section 202 Cr.P.C., it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction, he shall enquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there is sufficient ground for proceeding against the accused.

32. SectionBy Cr.P.C. (Amendment) Act, 2005, in Section 202 Cr.P.C. of the Principal Act with effect from 23.06.2006, in sub-section (1), the words “…and shall, in a case where accused is residing at a place beyond the area in which he exercises jurisdiction…” were inserted by Section 19 of the Criminal Procedure Code (Amendment) Act, 2005. In the opinion of the legislature, such amendment was necessary as false complaints are filed against persons residing at far off places in order to harass them. The object of the amendment is to ensure that persons residing at far off places are not harassed by filing false complaints making it obligatory for the Magistrate to enquire. Notes on Clause 19 reads as under:–

“False complaints are filed against persons residing at far off places simply to harass them. In order to see that the innocent persons are not harassed by unscrupulous persons, this clause seeks to amend sub-section (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.”

33. Considering the scope of amendment to Section 202 SectionCr.P.C., inVijay Dhanuka v. Najima Mamtaj (2014) 14 SCC 638, it was held as under:–

“12. ….The use of the expression “shall” prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word “shall” is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word “shall” in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression “shall” and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.”

34. Since the amendment is aimed to prevent persons residing outside the jurisdiction of the court from being harassed, it was reiterated that holding of enquiry is mandatory. The purpose or objective behind the amendment was also considered by this Court in Abhijit Pawar v. Hemant Madhukar Nimbalkar (2017) 3 SCC 528 and SectionNational Bank of Oman v. Barakara Abdul Aziz (2013) 2 SCC 488.

35. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint, in Mehmood Ul Rehman, this Court held as under:–

“22. ….the Code of Criminal Procedure requires speaking order to be passed under Section 203 Cr.P.C. when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 Cr.P.C., if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 Cr.P.C., by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/Section204 Cr.P.C., the High Court under Section 482 Cr.PC. is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one’s dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.”

36. SectionIn Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749, the Supreme Court has held that summoning of an accused in a criminal case is a serious matter and that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and law governing the issue. In para (28), it was held as under:–

“28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”

37. The principle that summoning an accused in a criminal case is a serious matter and that as a matter of course, the criminal case against a person cannot be set into motion was reiterated in SectionGHCL Employees Stock Option Trust v. India Infoline Limited (2013) 4 SCC 505.

38. To be summoned/to appear before the Criminal Court as an accused is a serious matter affecting one’s dignity and reputation in the society. In taking recourse to such a serious matter in summoning the accused in a case filed on a complaint otherwise than on a police report, there has to be application of mind as to whether the allegations in the complaint constitute essential ingredients of the offence and whether there are sufficient grounds for proceeding against the accused. SectionInPunjab National Bank v. Surendra Prasad Sinha 1993 Supp (1) SCC 499, it was held that the issuance of process should not be mechanical nor should be made an instrument of oppression or needless harassment.

39. At the stage of issuance of process to the accused, the Magistrate is not required to record detailed orders. But based on the allegations made in the complaint or the evidence led in support of the same, the Magistrate is to be prima facie satisfied that there are sufficient grounds for proceeding against the accused. SectionIn Jagdish Ram v. State of Rajasthan (2004) 4 SCC 432, it was held as under:–

“10. ….The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons.”

40. Extensive reference to the case law would clearly show that the allegations in the complaint and complainant’s statement and other materials must show that there are sufficient grounds for proceeding against the accused. In the light of the above principles, let us consider the present case whether the allegations in the complaint and the statement of the complainant and other materials before the Magistrate were sufficient enough to constitute prima-facie case to justify the Magistrate’s satisfaction that there were sufficient grounds for proceeding against the respondents-accused and whether there was application of mind by the learned Magistrate in taking cognizance of the offences and issuing process to the respondents.”

The decision relied by the learned counsel for the respondent no. 2 in the case of Ramesh Venkat Perumal (supra) is not applicable in the present case. A coordinate Bench of this Court has dealt the identical issue in the case of Prabhat Chaturvedi (supra). While relying on various decisions, including the judgment of the Hon’ble Supreme Court passed in the case of Thota Venkateswarlu (supra), this Court has held that the when the part of the offence has been committed outside the India, the same should not be tried by the court below, except the sanction of the Central Government under Section 188 Cr.P.C.

Paras 16 to 24 (relevant) of the said judgment are reproduced as under:

“16. So far as question of Sectionsection 188 Cr. P.C. is concerned in Thota Venkates-warlu’s case (supra), the Apex Court after considering the judgement rendered by Supreme Court in Ajay Aggarwal’s case (Supra), ruled that offence which are completed in itself and committed outside India the permission under proviso of Sectionsection 188 Cr. P.C. of Central Government would be required, but for the offence which are committed within India there would be no impediment in taking the cognizance and the accused persons without previous permission under proviso 2 of Sectionsection 188 Cr. P.C. can be prosecuted and Court would be competent to proceed with the case and to decide the same.

17. Ajay Aggarwal’s case (supra) was a case of criminal conspiracy and the Apex Court held that the criminal conspiracy was hatched in India. If some of the part of offence has taken place in pursuance of that conspiracy to achieve objective of the crirninal conspiracy outside India no permission of Central Government would be required of proviso to Sectionsection 188 Cr. P.C. In Ajay Aggarwal’s case (supra) the Apex Court held that criminal conspiracy itself a substantive offence and is continuing one unless object of criminal conspiracy is achieved. This case was considered by the Apex Court in Thota Venkateswarlu’s case (supra) and has been distinguished, on fact. In Thota Venkateswarlu’s case (supra) the petitioner left India for Bot-swana in January 2006 alone. Respondent No. 2, the wife went to Botswana to join the petitioner. While she was in Botswana the respondent No. 2 alleged to have been severely ill treated by the pe-titioner. Apart from the above, various demands were also made including demand for additional dowry of Rs. 5,00,000/-. The Court while deciding this matter came to the conclusion that offence pertaining to Botswana are in itself completed offence. These are not-continuing hence permission of Central Government would be required under the proviso of Sectionsection 188 Cr. P.C. However, the offence under section ¾ D.P. Act was committed in India. Hence the same shall be tried in India.

18. In recent judgement of the Apex Court in SectionUdai Shankar Awasthi v. State of Uttar Pradesh, [(2013) 2 SCC 435.] their Lord ships held in para 29 is as follows;

“29 Thus, in view of the above, the law on the issue can be summarised to the effect that, in the case of a continuing offence, the ingredients of the offence continue, ie., endure even after the period of consummation, whereas in an instantaneous of-fence, the offence takes place once and for all i.e. when the same actually takes place. In such cases, there is no continuing offence, even though the damage resulting from the injury may itself continue.”

19. The above judgement in Udai Shankar Awasthi has been rendered by the Apex Court after considering the several judgements of the Apex Court including the following judgements;

(I) Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Ma-haraj Santhan, [AIR 1959 SC 798.]

(ii) Gokak Patel Volkart Ltd. v. Dandayya Guru Shiddiah Hiramath, [1991 (Suppl.) ACC 31.]

(iii) State of Bihar v. Dev’ Karon Nenshi, [(1972) 2 SCC 890.]

(iv) SectionBhagirath Kanoria v. State of M.P., [(1984) 4 SCC 222 : 1985 (22) AC 17 (Sum.).]

(v) SectionAmrit Lal Chum v. Devoprasad Dutta Roy, [(1988) 2 SCC 269.]

(vi) SectionRaymond Ltd. v. M.P. Electricity Board, [(2001) 1 SCC 534.]

(vii) Sankar Dastidar v. Ban-jula Dastidar, [(2006) 13 SCC 470.]

20. The Supreme Court in Uday Shankar Awasthi’s case (supra), explain which offences are continuing offence and which are not.

21. In view of factual matrix in case in hand the offence committed at Riyad is complete offence and has no nexus with other offence alleged to have been committed in India. This offence under Sectionsection 326 IPC would not be triable without permission granted by the Central Government in view of proviso of Sectionsection 188 Cr. P.C. However the other offence which has been committed in India as alleged in the FIR and found to be committed in India during investigation would be tried and decided by the Magistrate. Hence proceeding in respect thereof may continue irrespective of the fact that no permission of the Central Government has been given in this case to prosecute the petitioner for the offence alleged to have been committed at Riyad in Saudi Arab.

22. Now question comes that on the basis of other offence said to have been committed in India whether the Court at Lucknow has jurisdiction to try and decide the same. From the perusal of the allegation made in the first information report the dowry was given in Lucknow according to the prosecution version in the FIR. The opposite party No. 2 and her mother was ill treated in Lucknow. Hence, it cannot be said that this Court at Lucknow has no jurisdiction to try and decide the case.

23. Hence this petition is liable to be partly allowed. The impugned order taking cognizance for the alleged offence committed in Riyad, Saudi Arab is set aside, but it will remain operative in respect of offences which were committed in India. Learned Magistrate will proceed with the trial in respect of those offence expeditiously in accordance with law keeping in view the provision contained in section 309 Cr. P.C.

24.Petition Partly Allowed.”

For the facts and discussions made above, the impugned order dated 12.05.2017 passed by Additional Chief Judicial Magistrate, Room No. 29, Lucknow in Case No. 2110 of 2016 and its consequential proceedings as well as non-bailable warrant dated 20.11.2017 are liable to be quashed and are hereby quashed.

The application stands allowed. The matter is remanded back to the court below for passing fresh orders strictly in accordance with the provisions of Section 202 Cr.P.C. and 188 SectionCr.P.C. and the judicial pronouncements discussed above.

October 01, 2019

VKS

 

 

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We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

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