The Court also finds that under Section 188 and 189
Cr.P.C. the offences alleged to have been committed beyond the
territory of India by an Indian citizen could be investigated into
and also tried in India.
ALLAHABAD HIGH COURT
Case :- CRIMINAL MISC. WRIT PETITION No. - 7081 of
2021
Petitioner :- Shri Abhishek Shukla
Respondent :- State Of U P And 3 Others
Coram: Hon'ble Siddhartha Varma, J. Hon'ble Subhash Chandra Sharma, J.
Order Date :- 10.06.2022
These writ petitions have been filed with a prayer that the
First Information Report dated 14.4.2021 under sections 498-A,
323, 506, 406, 342, 313, 351 I.P.C. and sections 3/4 of Dowry
Prohibition Act be quashed. A further prayer has been made that
the petitioners in pursuance of the aforesaid First Information
Report be not arrested.
For the decision of controversy, the facts mentioned in
Criminal Misc. Writ Petition No. 7081 of 2021 are being taken
into consideration.
A perusal of the First Information Report shows that the
respondent no.4 had married the petitioner on 6.5.2011 at Greater
Noida, Uttar Pradesh. This marriage was also got registered as
per law. It has been alleged in the First Information Report that
since the inception of the marriage, the petitioner used to
forcefully take-away the salaries of respondent no.4 and in fact he
had forced the respondent no.4 to transfer almost Rs.2,00,000/- to
clear off his educational loans. He had further forced the
respondent no.4 to give Rs.80,000/- to pay off some other loan. It
has been alleged that the petitioner regularly used to transfer
various amounts from the accounts of respondent no.4 to his
accounts to pursue his higher studies in BITS Pilani. Respondent
no.4 has stated that the petitioner had forced her to leave her job
in India and to go to the USA on an H4 visa and had made her to
work in the USA online despite the fact that the visa did not
permit her to do so. It has been alleged in the First Information
Report that despite the fact that respondent no.4 desired to pursue
her higher studies in Pepperdine University, the petitioner had
restrained her from studying. During their stay as husband and
wife in the USA, in June, 2016, the respondent no.4 had got
pregnant but because of the fact that the petitioner had pushed
her, she had fallen-down and resultantly a miscarriage had taken
place. Subsequently, in 2017, the respondent no.4 again got
pregnant but during the pregnancy, it has been alleged, the
petitioner had never cared for her and, therefore, from May 2017
to August 2017, the respondent no.4 stayed in India. It has been
alleged that despite the fact that the husband did not care for the
respondent no.4, she went back to USA to save her marriage for
the sake of her child which she was bearing. It has also been
stated that despite requests from the in-laws that they may return
her Stridhan, the same was not returned to her. Subsequently,
when the respondent no.4 had gone back to USA and the child,
was born, the petitioner, it has been alleged, did not take care of
the respondent no.4 and did not even take any paternity leave to
take care of the child. On top of that it has been alleged that the
parents of the petitioner also came to USA and the respondent
no.4 was required to conduct the household chores. In June 2018,
the opposite party no.4 flew down to India once again with her
son and in the following July, the petitioner sent her a notice for
divorce. Thereafter, to save the marriage she again flew back in
August 2018 to enquire why all the cruelty was being perpetrated.
It has been alleged that the petitioner had throughout been
ignoring the respondent no.4. In the USA the petitioner had
cancelled all the credit cards which were there with the
respondent no.4. The respondent no. 4 and her son were made to
live in a state of penury without any medical support. Despite the
fact the parents of the respondent no. 4 had sent money, she was
not allowed to pursue her studies. At times, she was closed in the
bath room and was beaten. When the respondent no.4 had desired
the admission of the young child in a day-care centre, the
petitioner had denied the same. It has been alleged in the First
Information Report that when the respondent no.4 on 15.3.2019
had fallen ill, she had to herself go to the hospital and in the
hospital when there was no money with her, the emergency
contact people in USA suggested her that she should go back to
India. It has been alleged that after that she came back to India
where she filed a complaint under the Domestic Violence Act. It
has been alleged that behind the back of respondent no.4, the
petitioner had also filed a case for divorce. When the respondent
no.4 was in India, on 26.2.2021, two persons had come to the
house of respondent no.4 and had threatened her and her parents
to withdraw the cases otherwise they would kill both, the parents
and the son of respondent no.4.
Challenging the instant First Information Report, the
learned counsel for the petitioner Sri Prabhat Jauhar assisted by
Sri Prakhar Saran Srivastava had argued that despite the fact that
respondent no.4 had got admission in the USA, she never studied.
He has submitted that on 14.1.2016, the petitioner had also
purchased a house for the respondent no.4 in NOIDA from his
own pocket. Learned counsel for the petitioner argued that when
respondent no.4 had urged for the admission of the child in a daycare
centre and when there was some dispute regarding that, the
respondent no.4 had approached the US Police which had found
that there was no merit in the complaint. This had happened on
15.3.2019 and the respondent no.4 had come back to India on
19.3.2019. Aggrieved by the actions of the respondent no.4, the
petitioner had sent a legal notice through his attorney to
respondent no.4 to return the minor child and also he had
informed the respondent no.4 about the contemplated divorce
proceedings in the USA. Learned counsel for the petitioner has
also stated that after the divorce petition was filed by the
petitioner in USA on 4.3.2021, the respondent no.4, as a counterblast
to the filing of the divorce case in the US Court, filed the
instant First Information Report on 14.4.2021. He submits that
the order for the custody of the son was passed on 18.12.2020 and
that was also a reason for the F.I.R. In the meantime, it is alleged
that the petitioner had filed a Habeas Corpus Petition for the
custody of the minor child before the Allahabad High Court
which was still pending. Learned counsel for the petitioner has
also stated that the respondent no.4 had filed a Special Leave
Petition against the order of issuance of notice in the Habeas
Corpus Petition and the Supreme Court had also tried
reconciliation but that had failed and, therefore, the Habeas
Corpus Petition in the High Court was to be heard. Learned
counsel for the petitioner has submitted that if the First
Information Report is perused, then it becomes abundantly clear
that all the incidents which had been complained of had occurred
in the USA and, therefore, the respondent no.4 had no cause of
action in India. Learned counsel for the petitioner has also
submitted that the ingredients of Section 498A I.P.C. were also
not present in the First Information Report which was lodged by
the respondent no.4. Learned counsel for the petitioner has stated
that the cruelty of the husband or the relatives of the husband
should have been to the extent that it would have driven the
respondent no.4 to a state when she would have committed
suicide. If that had not happened then the cruelty should have
caused a grave injury or a danger to the life, limb or health
(whether mental or physical) to the respondent No.4. In the
absence of the necessary ingredients as were to be found under
section 498-A I.P.C., the First Information Report was required to
be quashed. Learned counsel for the petitioner has further
submitted that the respondent no.4 had hardly stayed with her inlaws
and, therefore, it could not be said that they had subjected
her to any cruelty or torture. In this regard, learned counsel for
the petitioner has relied upon the decisions of the Supreme Court
in Ruchi Majoo vs. Sanjeev Majoo : (2011) 6 SCC 479; Vipin
Jaiswal (A-1) vs. State of Andhra Pradesh : (2013) 3 SCC 684;
Virala Bharath Kumar & Anr. vs. State of Telangana &
Anr. : (2017) 9 SCC 413 and Kamlesh Ghanshyam Lohia &
Ors. vs. State of Maharashtra, Through the Commissioner of
Police & Ors. : (2019) 4 RCR (Cri.) 169 and has submitted that
if the necessary ingredients for constituting an offence under
section 498-A I.P.C. and other accompanying sections were not
present, the First Information Report ought to be quashed.
Learned counsel for the petitioner further stated that the
lodging of the F.I.R. was an abuse of process of law and if it was
established that there was no cruelty then the F.I.R. should be
quashed.
Learned counsel for the petitioner has relied upon a reply
of the respondent no. 4 of October 2019 which was sent to the
notice which the petitioner had sent on 26.3.2019 and has stated
that in the reply the respondent no. 4 had stated that if the
petitioner filed a written apology and took the responsibility of
his wife and son and provided a maintenance of $2000 per month
for the basic sustenance and maintenance for his wife and son in
India then she was ready for a settlement. He also relied upon that
portion of the reply wherein it had been stated that if the
petitioner came down to India and took his wife and son to USA
then the respondent no. 4 was ready to condone his cruelty and
submitted that when she was herself ready for rapprochement
then no question of cruelty etc. arose. Learned counsel for the
petitioner has also stated that for all the allegations which the
respondent no. 4 had made in the first information report, namely,
the fact that the petitioner was preventing the respondent no. 4 for
pursuing her studies; maltreatment at USA; the abortion which
had taken place in the year 2016; the maltreatment at his hands
after the child was born and the maltreatment after the petitioner's
parents had gone to USA no report to the Police in USA was
made and, therefore, the allegations made in the first information
report were baseless and an abuse of the process of law. He
further stated that only to wreak vengeance and with malafide
intentions the first information report was lodged. In this regard,
he relied upon a judgement of the Supreme Court reported in
2019 (15) SCC 357 (Rashmi Chopra vs. State of U.P.) and has
submitted that if the FIR was a counter-blast to the divorce
petition which the petitioner had filed and if the ingredients of the
various sections under which the FIR was filed were not fulfilled
then the FIR ought to be quashed.
Learned counsel further relied upon a judgement of the
Supreme Court reported in 2009 (7) SCC 712 (Harmanpreet
Singh Ahluwalia and others vs. State of Punjab and others)
and has submitted that if after the investigation was concluded
and yet a charge sheet was filed against the accused then the same
ought be quashed. He also submits that on the basis of what had
been said in the judgement reported in 2009 (7) SCC 712 (supra)
in paragraph 32 that if from any particular fact of the case it was
found that the FIR had been made with an ulterior motive to
harass the accused then the continuance of criminal proceedings
against the accused would amount to abuse of the process of the
court.
Learned counsel for the petitioner further argued that since
most of the offences had allegedly occurred in the USA the
petitioner could not be investigated against and could not be tried
in India as all the evidence were available only in the USA.
Learned counsel for the petitioner in the end submitted that
there was a Look Out Notice and there was also a non-bailable
warrant issued against the petitioner and if the High Court did not
protect the interest of the petitioner then the petitioners interest
would be greatly jeopardized.
In reply, Sri Ashish Deep Verma assisted by Sri Azad
Khan learned counsel appearing for respondent no.4 has
submitted that if on the perusal of the First Information Report, a
cognizable offence was disclosed, then in a writ petition, the
genuineness or the credibility of the information would not be
relevant. Learned counsel for the respondent no.4 has relied upon
the decisions of the Supreme Court in State of Haryana & Ors.
vs. Bhajan Lal & Ors. : 1992 Supp (1) SCC 335; State of
Kerela & Ors. O.C. Kuttan & Ors. : (1999) 2 SCC 651; State
of Telangana vs. Habib Abdullah Jeelani & Ors. : (2017) 2
SCC 779; P. Chidambaram vs. Director of Enforcement :
(2019) 9 SCC 24 and Neeharika Infrastructure Pvt. Ltd. vs.
State of Maharashtra & Ors. : 2021 SCC Online SC 315 and
has submitted that the High Court should not interfere in the
investigation which was to be done by the State as that would
result in miscarriage of justice. From the judgement of the
Supreme Court in Neeharika Infrastructure Pvt. Ltd. (supra)
learned counsel for the respondent no.4 has stated that the
following principles of law emerged, which are as follows :-
"From the aforesaid decisions of this Court,
right from the decision of the Privy Council in
the case of Khawaja Nazir Ahmad (supra), the
following principles of law emerge:
i) Police has the statutory right and duty under
the relevant provisions of the Code of
Criminal Procedure contained in Chapter XIV
of the Code to investigate into cognizable
offences;
ii) Courts would not thwart any investigation
into the cognizable offences;
iii) However, in cases where no cognizable
offence or offence of any kind is disclosed in
the first information report the Court will not
permit an investigation to go on;
iv) The power of quashing should be exercised
sparingly with circumspection, in the ‘rarest of
rare cases’. (The rarest of rare cases standard
in its application for quashing under Section
482 Cr.P.C. is not to be confused with the
norm which has been formulated in the
context of the death penalty, as explained
previously by this Court);
v) While examining an FIR/complaint,
quashing of which is sought, the court cannot
embark upon an enquiry as to the reliability or
genuineness or otherwise of the allegations
made in the FIR/complaint;
vi) Criminal proceedings ought not to be
scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an
exception and a rarity than an ordinary rule;
viii) Ordinarily, the courts are barred from
usurping the jurisdiction of the police, since
the two organs of the State operate in two
specific spheres of activities. The inherent
power of the court is, however, recognised to
secure the ends of justice or prevent the above
of the process by Section 482 Cr.P.C.
ix) The functions of the judiciary and the
police are complementary, not overlapping;
x) Save in exceptional cases where noninterference
would result in miscarriage of
justice, the Court and the judicial process
should not interfere at the stage of
investigation of offences;
xi) Extraordinary and inherent powers of the
Court do not confer an arbitrary jurisdiction
on the Court to act according to its whims or
caprice;
xii) The first information report is not an
encyclopaedia which must disclose all facts
and details relating to the offence reported.
Therefore, when the investigation by the
police is in progress, the court should not go
into the merits of the allegations in the FIR.
Police must be permitted to complete the
investigation. It would be premature to
pronounce the conclusion based on hazy facts
that the complaint/FIR does not deserve to be
investigated or that it amounts to abuse of
process of law. During or after investigation,
if the investigating officer finds that there is
no substance in the application made by the
complainant, the investigating officer may file
an appropriate report/summary before the
learned Magistrate which may be considered
by the learned Magistrate in accordance with
the known procedure;
xiii) The power under Section 482 Cr.P.C. is
very wide, but conferment of wide power
requires the court to be cautious. It casts an
onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it
thinks fit, regard being had to the parameters
of quashing and the self-restraint imposed by
law, more particularly the parameters laid
down by this Court in the cases of R.P. Kapur
(supra) and Bhajan Lal (supra), has the
jurisdiction to quash the FIR/complaint; and
xv) When a prayer for quashing the FIR is
made by the alleged accused, the court when it
exercises the power under Section 482
Cr.P.C., only has to consider whether or not
the allegations in the FIR disclose the
commission of a cognizable offence and is not
required to consider on merits whether the
allegations make out a cognizable offence or
not and the court has to permit the
investigating agency/police to investigate the
allegations in the FIR."
Learned counsel for the respondent no. 4 further states that even
on facts the petitioner could not be exonerated of the charges of cruelty
as he had though purchased the property in question in the name of his
wife, he had yet to pay 40% of the cost of it and because he had
stopped giving the various instalments the builder was after the life of
the respondent no. 4 to pay remaining installments. Learned counsel
for the respondent no. 4 also submitted that the offences which had
been alleged against the petitioner were continuous in nature. The
offences of cruelty had started off right from the date the couple had
got married. The FIR was a result of all that had happened in the past
so many years and, therefore, the petitioner could not get away by
saying that there was no particular incident of cruelty.
Learned counsel for the respondent no. 4 further submitted that
cruelty is a term which has a different meaning for every individual.
For arriving at a conclusion as to whether there was cruelty against a
particular individual all surrounding circumstances had to be looked
into. In the instant case, he submits that the respondent no. 4 came
from a very well-to-do family and was a well educated lady and,
therefore, she expected a treatment which was of a nature which would
go with her upbringing. He submits that when proper treatment was
not meted out to her then it was definitely cruelty. Learned counsel for
the respondent no. 4 has also submitted that not only the petitioner had
filed the divorce petition in the USA but he had also filed a divorce
suit in August 2019 in India (This fact has not been controverted by
the learned counsel for the petitioner).
Learned counsel submitted that the reply which the respondent
no. 4 had sent in October 2019 and the Email which she had sent
showed how disgruntled she was with her situation and that she was in
fact being cruelly deprived of her maintenance.
Learned counsel for the respondent no. 4 further submitted that
under Section 498-A of the IPC, the cruelty had not only to be physical
torture or atrocity. There could be a mental and emotional injury while
physical injury was not present, which was a latent form of cruelty but
was equally serious in the terms of the provisions of statutes and this
cruelty would also embrace the attributes of cruelty in terms of Section
498-A of the IPC.
Learned counsel for the respondent no.4 also relied upon the
provisions of Section 188 and 189 of the Cr.P.C. which are being
reproduced here as under:-
"188. Offence committed outside India. When an offence is
committed outside India-
(a) by a citizen of India, whether on the high seas or elsewhere;
or
(b) by a person, not being such citizen, on any ship or aircraft
registered in India, he may be dealt with in respect of such
offence as if it had been committed at any place within India at
which he may be found:
Provided that, notwithstanding anything in any of the
preceding sections of this Chapter, no such offence shall be
inquired into or tried in India except with the previous sanction
of the Central Government."
189. Receipt of evidence relating to offences committed
outside India. When any offence alleged to have been
committed in a territory outside India is being inquired into or
tried under the provisions of section 188, the Central
Government may, if it thinks fit, direct that copies of
depositions made or exhibits produced before a judicial officer
in or for that territory or before a diplomatic or consular
representative of India in or for that territory shall be received
as evidence by the Court holding such inquiry or trial in any
case in which such Court might issue a commission for taking
evidence as to the matters to which such depositions or exhibits
relate.
He submits that the petitioner could be tried in India even for
the offences which he had committed in the USA. He submits that for
investigation, in fact, no sanction of the Central Government was also
required. For this purpose, he relied upon 2011 (9) SCC 527 (Thota
Venkateshwarlu vs. State of Andhra Pradesh through Principal
Secretary and another). So far as the evidence was concerned,
learned counsel for the respondent no. 4 submitted that under Section
189 Cr.P.C. all the evidence could be obtained by the investigating
agency even from the USA.
Learned counsel for the respondent no. 4 replying to the
arguments of the petitioner that a protection was required from the
High Court because the look out notice had been issued against the
petitioner and that a non-bailable warrant had been issued, submitted
that the petitioner had throughout avoided investigation vis-a-vis the
FIR which was lodged on 14.4.2021 and, therefore, no indulgence be
granted to the petitioner. He further submits that if the offences were
cognizable in nature the FIR could not be quashed and, therefore, the
prayer for a protection could not be granted to the petitioner.
Learned counsel for the respondent no. 4 thus submitted
that the case could very well be looked into by the police as also
by the Courts at Gautam Budh Nagar under the provisions of
Section 188 Cr.P.C. He also relied upon the decision of the
Supreme Court in Om Hemrajani vs. State of U.P. & Ors. :
AIR 2005 SC 392 and submitted that the offence which were
committed outside India could be very much tried in India.
Learned AGA Sri Arunendra Kumar Singh also submitted
that the FIR could not be tinkered with lightly. He relied upon the
judgements of the Supreme Court which had been relied upon by
the learned counsel for the respondent no. 4.
Learned counsel for the State also submitted that the
offences alleged in the FIR were of a continuing nature and they
could not be taken lightly. Still further, learned AGA submitted
that most of the judgements which had been cited by the learned
counsel for the petitioner were for the quashing of the charge
sheet.
Having heard learned counsel for the parties, the Court
finds from the perusal of the First Information Report that there
are allegations which reveal the commission of a cognizable
offence. Respondent No. 4 has alleged various kinds of cruelties
which had led her to various illnesses. The respondent no. 4 had
also alleged that there was a miscarriage which had resulted
because of the fact that the petitioner had pushed her. Still further
the Court finds that the respondent no. 4 was being deprived of
her financial resources and that had driven her to come back to
India and in India also, the Court finds, there was a threat made
vis-a-vis the respondent no. 4 and her parents on 26.2.2021 when
two persons had reached her house at 5.30 PM and had threatened
her with dire consequences. The arguments of the learned counsel
for the petitioner that the FIR was a counter-blast to the notice for
divorce and that the FIR itself was a malicious persecution of the
petitioner do not hold any water.
Under such circumstances, when the First Information
Report definitely discloses the commission of cognizable
offences the writ petition does not warrant any interference.
The Court also finds that under Section 188 and 189
Cr.P.C. the offences alleged to have been committed beyond the
territory of India by an Indian citizen could be investigated into
and also tried in India.
Both the writ petitions are, accordingly, dismissed.
Dismissal of the Criminal Misc. Writ Petition No. 7081 of
2021 and Criminal Misc. Writ Petition No. 7082 of 2021 would
not in any manner come in the way of the petitioner in availing
the remedies which might be available under the Cr.P.C.
Order Date :- 10.06.2022
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