IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. CrMMO No. 13 of 2011. Date of decision:13.12.2011. ----------------------------------------------------------------------------- 1. Shri Surinder Kumar Ghai son of Shri Amlok Ram Ghai, resident of House No. 36/1183, DDA Janta Flats, Madan Giri, New Delhi-110 062 (Father-in-law). 2. Mrs. Kanta Ghai, wife of Shri Surinder Kumar Ghai, son of Shri Amlok Ram Ghai, resident of House No. 36/1183, DDA Janta Flats, Madan Giri, New Delhi-110 062 (Mother- in-law). 3. Shri Hari Krishan Ghai, son of Shri Surinder Kumar Ghai, son of Shri Amlok Ram Ghai, resident of House No. 36/1183, DDA Janta Flats, Madan Giri, New Delhi-110 062 (Brother-in-law). 4. Smt. Pamela Ghai wife of Shri Hari Krishan Ghai, resident of House No. 36/1183, DDA Janta Flats, Madan Giri, New Delhi-110 062 (Sister-in-law). 5. Shri Gagan Ghai son of Shri Surinder Kumar Ghai son of Shri Amlok Ram Ghai, resident of House No. 36/1183, DDA Janta Flats, Madan Giri, New Delhi-110 062 (Brother-in-law). 6. Mrs. Priya Ghai wife of Shri Gagan Ghai, resident of House No. 36/1183, DDA Janta Flats, Madan Giri, New Delhi-110 062 (Sister-in-law). 7. Shri Pushpak Ghai son of Shri Surinder Ghai, Ray White Real Estate, 171 Great Sough Road, Manurwa, Aukland, New Zealand c/o Shri Surinder Ghai, resident of House No. 36/1183, DDA Janta Flats, Madan Giri, New Delhi-110 062 (Ex-Husband of respondent No.4) through his father Shri Surinder Kumar Ghai, i.e. petitioner No.1. .....Petitioners. Versus 1. State of Himachal Pradesh through Secretary (Home) to the Government of Himachal Pradesh, Shimla-1, Himachal Pradesh. 2. Senior Superintendent of Police, Solan, District Solan, H.P. 3. Station House Officer-cum-Investigating Officer, Police Station, Parwanoo, Sector-IV, District Solan, HP. 4. Smt. Navita Sachdeva alias Ann Raj, daughter of Shri Anil Sachdeva, resident of HIG-10, Sector-IV, Parwanoo, Disitrict Solan, H.P. presently residing at 36, Sector Drive, Alfriston Heigts, Manukau, Aukland, New Zealand. .....Respondents. 2 Petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of First Information Report (FIR) No. 31/2010 dated 25th May, 2010 lodged at Police Station, Parwanoo, Sector-IV, District Solan, HP under Section 498/A read with Section 506 IPC against petitioners No. 1 to 6. -------------------------------------------------------------------------------- Coram: The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. -------------------------------------------------------------------------------- For the petitioners : Mr. C.N. Singh & Mr. Shiv Raj Malik, Advocates. For the respondents : Mr. P.K. Sharma, Addl. AG for respondents No. 1 to 3. Mr. Karan Singh Guleria, Advocate for respondent no.4. -------------------------------------------------------------------------------- Justice V.K. Sharma, J. (Oral). This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (in short ‘CrPC’). Whereas, petitioner No.7 is the husband, respondent No.4 is the wife. Petitioners No. 1 to 6 are relatives of the husband, out of whom petitioners No. 1 & 2 are his parents, petitioners No. 3 & 5 brothers and petitioners No. 4 & 6 sisters-in-law (brothers’ wives). 2. The subject-matter of challenge is FIR No. 31, dated 25.5.2010, Annexure P-2, lodged by wife against the husband and his aforesaid relatives at Police Station, Parwanoo, District Solan, H.P. under Sections 498-A and 506 of the Indian Penal Code (in short ‘IPC’), which is in Hindi and when translated into English, text whereof is as under:- “Stated that I am resident of the address given above. My parents are residents of Parwanoo. They also reside 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 3 in Aukland (New Zealand). I was married to petitioner No.7 on 14.12.2006 as per Hindu religious rites and ceremonies in Delhi. After about 1½ months from the marriage, I accompanied my husband to Aukland (New Zealand) where he is serving. After reaching Aukland, petitioner No.7 started abusing and giving beatings to me. There used to be discord between us on matters of trifle nature. After about six months, I came back to my parents-in-law in Delhi. They alongwith my Jeth Harish Ghai and his wife Pamela Ghai started harassing me daily on trivial issues. They used to say that I am of bad character. Whereas, my husband was harassing me in New Zealand, my parents-in-law, Jeth and Jethani started harassing me in Delhi. When I narrated my plight to my younger Jeth Gagan Ghai and Jethani Priya Ghai and elder Jeth Harish Ghai and his wife Pamela, they also rebuked me. After spending 1½ months in Delhi, I joined the company of my husband at Aukland where also his atrocities towards me continued. In March, 2007, I became pregnant and gave birth to a male child on 6.1.2008. We named him as Zoarn Swarraj Ghai. When the child was in the womb, my husband, parents- in-law, both the Jeths and their wives as aforesaid, pressurized me saying that I should abort the child as it did not belong to petitioner No.7 and instead was some one else’s off spring. It was in such circumstances that I alongwith my husband underwent DNA test on 13.1.2009 pursuant to an order of the Court in New Zealand. The test confirmed that I was pregnant from the loins of my husband, petitioner No.7. However, even despite that, their harassment continued unabated. I had been informing my parents about all this throughout. These things are also in the knowledge of Shashi Kumar, who is employed by my father as a driver as he used to drop me from Parwanoo to Delhi and vice versa. I had also told 4 about it to him. My husband is not consenting for issuance of visa in favour of our infant child Zoarn Swarraj Ghai as consent of either parent for issuance of visa is a pre-condition in accordance with laws of New Zealand. It is due to this reason that I could not obtain visa for him and as such, he could not be brought to India. When I talked about it to my husband, parents-in- law and members of their family, all of them threatened that I would be killed. On 3.5.2010, my husband handed over to me a writing stating that though he would divorce me, yet would re-marry after six months and would give PIO (Persons of Indian Origin) Card to facilitate taking of our infant child Zoarn Swarraj Ghai from New Zealand to India. On 7.5.2010 in the morning at 2.00 a.m. I reached Delhi Airport from where I called my parents-in-law on mobile No. 09910573905, my Jethani Pamela and Jeth Harish on their mobile No. 09810896090 from a STD booth and informed them about my arrival in India. However, they told me that I need not come to the matrimonial home and in case I came there I would be killed. I informed my parents about it and out of fear, I came to my parental house at Parwanoo on 8.5.2010. Between 13.5.2010 to19.5.2010, I made telephone calls from mobile phone of my father bearing No. 09816020289 to my Jethani Priya and Jeth Gagan Ghai on mobile No. 09873110064 and Jethani Pamela on her office phone No. 011 26872161 and requested them to sort the matter between the two families. However, it could not happen. My son is with my parents in New Zealand. Today, i.e. 25.5.2010, I talked to my parents-in-law on their phone No. 09910573905 and Jethani Pamela on phone No. 09810896090 and Jethani Priya on mobile Phone No. 09873110064 and Jethani Priya on her residential phone No. 011-24644343 from a STD booth at Parwanoo and 5 apprised them about my problem. During these telephone calls, my parents-in-law, Jethani Pamela and Jethani Priya threatened me that in case I came to Delhi, they would kill me. I narrated all these things to my father. Thus, my parents-in-law, both Jeths and Jethanis and husband have harassed me and have threatened me with dire consequences to my life. Legal action may be taken against them.” 3. A bare perusal of the recitals contained in the above FIR would go to show that the allegations therein pertain to three places, that is, Aukland (New Zealand), Delhi and Parwanoo (HP). In so far as the allegations with regard to Aukland (New Zealand) are concerned, it would be seen that the same relate to the period between early 2007 to late 2009. Admittedly, multifarious litigation is going on between the parties in New Zealand as well. It is also not disputed and is rather categorically admitted in reply to the petition that the marriage between the parties stands already dissolved by a decree of divorce passed by a Court in New Zealand albeit the assertion on behalf of respondent No.4-wife that alternate proceedings for divorce initiated at her instance are also going on in the Court at Solan (HP). 4. As far as the allegations relating to Delhi are concerned, the same also relate to the period somewhere in early 2007, except those relating to the telephonic conversation that had allegedly taken place between respondent No.4 and the petitioners, except petitioner No.7 from a STD booth of Delhi Airport, which pertain to 7.5.2010. 5. The third set of allegations is with regard to the telephonic conversation that had allegedly taken place between respondent No.4 and the petitioners, except petitioner No.7, from a STD booth at Parwanoo on 25.5.2010. 6 6. It is contended on behalf of the petitioners that even if the recitals in the FIR are taken on their face value, the same do not go to constitute the alleged offences under Sections 498-A and 506 IPC. It is further contended that the allegations with regard to the happenings that had allegedly taken place in New Zealand cannot at all be made basis for registration of an FIR within the jurisdiction of Police Station, Parwanoo (HP). Similarly, the allegations with regard to the alleged happenings that had taken place in Delhi can also not be included in the said FIR. It is further contended that the alleged telephonic conversation between respondent No.4 and the petitioners, other than petitioner No.7, from a STD booth at Parwanoo on 25.5.2010 is a mere make believe story and cannot be lawfully made basis for their trial for the alleged offences. Conversely, the case on behalf of respondents No. 1 to 3-State as also respondent No.4–wife is that the entire chain of allegations forming part of the FIR is in the nature of a continuing cause of action and since the petitioners had treated respondent No.4 with cruelty and had hurled threats against her life when she had talked to them from STD booths at Parwanoo and Delhi Airport would give territorial jurisdiction for registration of the FIR at Parwanoo and since final report based on the FIR has already been submitted to the Court at Kasauli for trial, there is no lawful basis for quashing the FIR. 7. In support of their contentions, the petitioners have placed reliance upon: (1). Shakson Belthissor versus State of Kerala and another, (2010) 1 Supreme Court Cases (Cri) 1412=(2009) 14 Supreme Court Cases 466. (2). Sunder Babu and others versus State of Tamil Nadu, (2010) 1 Supreme Court Cases (Cri) 1349=(2009) 14 Supreme Court Cases 244. 7 (3). Bahadur Singh and others versus State of Punjab and another, 2010 (3) RCR (Criminal) 252. (4). Jaswinder Singh Sidhu versus State of Punjab & anr., 2009 (3) RCR (Criminal) 253. (5). Harmanpreet Singh Ahluwalia and others versus State of Punjab and others, 2009 (2) RCR (Criminal) 956. (6). Bhaskar Lal Sharma and another versus Monica, (2009) 10 Supreme Court Cases 604. (7). Sanjeev Majoo & ors versus State Govt. of NCT of Delhi, Crl.M.C. No. 3329 of 2009, decided on 22.9.2010.(High Court of Delhi). (8). Kanchan Gulati and anr. versus The state and ors, II (2007) DMC 644.(High Court of Delhi). 8. Reliance has been placed on behalf of the respondents on: (1). K.C. Mathew and another versus Reena Paul, 1998 Cri.L.J. 2300 (Kerala High Court). (2). Rasiklal Dalpatram Thakkar versus State of Gujarat & Ors., AIR 2010 SC 715. 9. The two offences alleged against the petitioners are under Section 498-A and 506 IPC. The offence under Section 498-A IPC has been defined as under:- “498A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.- For the purpose of this section, “cruelty” means- (a) any wilful 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; or (b) harassment of the woman where such harassment is within a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 8 10. The offence under Section 498-A IPC is formed of two parts. The one relating to any wilful 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. The second part refers to harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 11. Admittedly, there is no allegation in the FIR relating to any unlawful demand for any property or valuable security by the petitioners from respondent No.4 or any person related to her. Thus, in so far as the second part of the offence is concerned, the same has no application in the facts and circumstances of the case. 12. As already noticed, the allegations constituting alleged cruelty on the part of the petitioners against respondent No.4 relating to Aukland (New Zealand) and Delhi are concerned, the same relate to the period commencing from early 2007 up to late 2009. In this regard, suffice it to say that firstly the acts allegedly committed by the petitioners in New Zealand and Delhi can by no stretch of imagination be made basis for registration of FIR at Parwanoo (HP) and secondly much water has flown down the Ganges since early 2007 till late 2009 and the present times when we are at the fag end of 2011 and as such, the same, even if taken to be true for a moment for the sake of arguments, have lost much of the sheen by long lapse of time and highly belated allegations of such nature would certainly come within 9 the mischief of unexplained delay. 13. Further more when admittedly the marriage between the parties stands already dissolved, there appears to be no occasion for respondent No.4 to have made the alleged telephone calls from the Airport at Delhi on 7.5.2010 and thereafter, from Parwanoo on 25.5.2010 entrapping the petitioners, except petitioner No.7, for the alleged threats having been hurled by them against the life of respondent No.4. All these allegations appear to be a mere make believe story fabricated for bringing the alleged offences within the purview of powers of investigation of the police at Police Station, Parwanoo in the State of Himachal Pradesh. 14. In view of the above, I am more than satisfied that in the facts and circumstances of the case, the above FIR has been lodged by respondent No.4 against the petitioners on the basis of a make believe story and if the same is allowed to go on to its logical conclusion, the same would be a gross abuse of the process of law. Accordingly, FIR No. 31, dated 25.5.2010, registered at Police Station, Parwanoo against the petitioners at the instance of respondent No.4 as also consequential proceedings on its basis are hereby quashed. 15. The petition as also pending Cr.MPs, if any, stand disposed of in the above terms. (V.K. Sharma) Judge December 13, 2011 (cr)