IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application (C-482) No.42 of 2014 [ENTITY] Applicant vs. [ENTITY] and another Respondents Mr. [ENTITY], Advocate for the applicant. Mr. [ENTITY], AGA for the State. Mr. [ENTITY], Advocate for the respondent no.2. [ENTITY], J. (Oral)
1. The applicant, by means of present Application under [SECTION] [ACT], seeks to quash the chargesheet dated 01.09.2013 and the summoning order dated 07.10.2013 passed by the Chief Judicial Magistrate, Dehradun in [CASE NUMBER] titled as State vs. [ENTITY], under [SECTION], [SECTION] & [SECTION] [ACT]. The applicant also seeks to quash the proceedings of the aforementioned criminal case pending before the said court.
2. An FIR was lodged by respondent no.2 (Smt. [ENTITY] - victim) against the accused-applicant on 30.07.2013 at Police Station Kotwali Sadar, District Dehradun for the offences punishable under [SECTION], [SECTION] & [SECTION] [ACT]. After the investigation, a charge-sheet was submitted against the accused- applicant for the selfsame offences. The cognizance was taken by the Magistrate concerned, vide order dated 07.10.2013 and accused-applicant was summoned to face the trial for the selfsame offences. Aggrieved against the same, present application under [SECTION] [ACT] was filed by the accused- applicant.
3. According to the informant-victim, she was married to the applicant 12 years ago according to Hindu rites and rituals.
Articles were given in the marriage to the best of her father's capacity. Everything went off well in the initial months, but, after some time, the applicant started assaulting and abusing the informant/victim. The victim tolerated the same in the hope that everything will be set at right in future. The applicant started suspecting her and also started imposing unnecessary restrictions on her. When the FIR was lodged, the applicant was at Singapore. The couple was issue less. The victim thought to adopt a child but, the applicant did not agree to it. The applicant was medically diagnosed and it was revealed that he was unable to make his wife pregnant. The applicant came to Delhi to attend a marriage. Thereafter the applicant did not talk to the victim. Whenever the victim could try to talk to the applicant, he harassed her. The statement of the victim given to the Investigating Officer is also enclosed as Annexure-2 to the petition. The Investigating Officer also took pains to enquire about the alleged crime from victim in question-answer form. The other documents have also been brought on record in an effort to show that prima facie offences are made out against the applicant. As said earlier, after the investigation, a chargesheet was submitted by the Investigating Officer, to which the applicant was aggrieved and therefore, he filed the present petition under [SECTION] [ACT]
4. Much emphasis is laid on [SECTION] [ACT] by learned counsel for the applicant that [SECTION] [ACT] deals with the offence committed outside India. It says that when an offence is committed outside India by a citizen of India, whether on the high seas or elsewhere or 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. The [SECTION] [ACT] says that no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.
5. The applicant has lost sight of the fact that in the FIR, the victim showed the allegation of the offences against the applicant not only in India but also in Singapore. The victim and the applicant was a married couple for 12 years. It was specifically mentioned in the FIR that everything went off well in the initial days or months, but subsequently, the applicant started harassing her. So it cannot be said that the previous sanction of the Central Government was required for enquiry or trial of present criminal case. The marriage of applicant with respondent no.2 was solemnized at Delhi and the couple went to Singapore only in June/July 2010. The FIR was lodged on 30.07.2013, which means that the couple lived together in India for almost 9-10 years.
6. The Hon'ble Apex Court in [PRECEDENT] has laid down certain principles in respect of exercise of jurisdiction under [SECTION] of [ACT] One of the principle is that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
7. On a perusal of the FIR, as also chargesheet, it is apparently clear that the offences punishable under [SECTION], [SECTION] & [SECTION] [ACT] are prima facie made out against the applicant. It is made clear that there is no ingredient of harassment in connection with the demand of dowry.
8. [SECTION] [ACT] says that whoever being the husband of a lady subjects such woman to cruelty shall be punished. The word 'cruelty' is defined to mean that any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman.
9. It cannot, therefore, be said that the prima facie no offences under [SECTION], [SECTION] and [SECTION] [ACT] were made against the applicant. It is well settled law that the factual aspects of the case need not be gone into by this Court in exercise of it's inherent jurisdiction.
10. Learned counsel for the applicant was at pains to argue that no offences were made against the applicant.
11. The Hon'ble Supreme Court in [PRECEDENT] held as follows:
"28. The High Court, in exercise of its jurisdiction under [SECTION] of the [ACT], must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution / complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution / complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held."
12. When factual foundation of any offence is laid against the accused-applicant, then this Court should not intervene in exercise of it's inherent jurisdiction. It is a well settled law that the inherent powers of this Court under [SECTION] [ACT] should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section. In the instant case, the accused-applicant is unable to pass those tests and it is not a fit case where such jurisdiction should be exercised.
13. As a consequence thereof, application under [SECTION] [ACT] is liable to be dismissed and is hereby dismissed. It is, however, provided that if the applicant surrenders before the Magistrate concerned and seeks bail, his bail application shall be decided by the Magistrate concerned as expeditiously as possible and without unreasonable delay.
14. The applicant is granted liberty to raise factual pleas before the trial court at an appropriate time for the purpose of seeking his discharge/acquittal.
([ENTITY], J.) Dated 09th May, 2014 Rawat