CR.MA/3045/2005 1/57 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 3045 of 2005 With CRIMINAL MISC.APPLICATION No. 11546 of 2005 In CRIMINAL MISC.APPLICATION No. 3045 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE K.A.PUJ ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= VINESH BHAGWAN DARIANANI - Applicant(s) Versus STATE OF GUJARAT & 8 - Respondent(s) ================================================= Appearance : MR NILESH PANDYA for Petitioners. MR MUKESH PATEL, APP for Respondent No. 1 – State. MR P M THAKKAR, SENIOR ADVOCATE WITH MR SP CR.MA/3045/2005 2/57 JUDGMENT MAJMUDAR for Respondent No. 2. ================================================= CORAM : HONOURABLE MR.JUSTICE K.A.PUJ Date : 27/10/2005 COMMON ORAL JUDGMENT 1.Cri. Misc. Application No. 3045 of 2005 is filed by the petitioners – original accused praying for quashing and setting aside the proceedings of Criminal Case No. 4386 of 2004 pending before the learned Chief Judicial Magistrate, Vadodara. 2.Cri. Misc. Application No. 11456 of 2005 is filed by the applicant, namely, Ritu Vinesh Darianani, original respondent No. 2 in Cri. Misc. Application No. 3045 of 2005 for vacating the interim relief granted by this Court on 01.04.2005 staying further proceedings of Criminal Case No. 4386 of 2004 pending in the Court of learned Chief Judicial Magistrate, CR.MA/3045/2005 3/57 JUDGMENT Vadodara. 3.It is the case of the petitioners – original accused that they are not citizens of India and they have never resided in India and they are having citizenship of Spain for which they are holding necessary Passports. The petitioner No. 1 i.e. Vinesh Bhagwan Darianani had come to India along with petitioner No. 2, for the purpose of his marriage with the respondent No. 2. The petitioner No. 1 got married with the respondent No. 2 on 25.01.2003. It is the case of the petitioners that for the purpose of said marriage, all the expenses were borne by the petitioners and all the bills of the hotel etc. have been paid by the petitioners. It is also the case of the petitioners that after the marriage ceremony was over, the petitioner No. 1 had applied for visa for the respondent No. 2 and for that purpose, the respondent No. 2 has CR.MA/3045/2005 4/57 JUDGMENT managed to obtain Marriage Certificate from the Registrar of Marriages, Vadodara and the same was produced before the Visa authorities and subsequently, the respondent No. 2 had left India for Spain with the petitioner No. 1 on 14.02.2003 and she was residing with the petitioner No. 1 in Spain. It is also the case of the petitioners that after the respondent No. 2 came to Spain, all necessary formalities were carried out by the petitioner No. 1 for obtaining resident permit for the respondent No. 2 and the marriage of the petitioner No. 1 and respondent No. 2 was also registered as per the local laws of Spain before the authority for registration of marriages. A separate Agreement was also executed by the petitioner No. 1 and respondent No. 2 as per the local laws of Spain. 4.It is also the case of the petitioners that CR.MA/3045/2005 5/57 JUDGMENT within short period of coming to Spain, the respondent No. 2 started behaving abnormal and not responding as a normal wife and always giving lame excuses and due to such non- cooperation of the respondent No. 2, it was not possible for the petitioner No. 1 and respondent No. 2 to live together as husband and wife and after some time, the respondent No. 2 had left the house of the petitioners and went to her matrimonial uncle who was residing at Tenerife in Spain. Since the respondent No. 2 has not cooperated with the petitioners and as it was not possible for them to live together, the petitioner No. 1 thought it fit and just to have judicial separation and accordingly, application was made by the petitioner No. 1 in the Court of Spain. However, the Trial Court of Spain dismissed the application of the petitioner No. 1. Against the said order, the petitioner No. 1 had CR.MA/3045/2005 6/57 JUDGMENT preferred the Appeal before the Appellate Court of Spain and accordingly, the Appellate Court of Spain allowed the said appeal of the petitioner No. 1 and passed order for judicial separation of the petitioner No. 1 and the respondent No. 2. 5.It is further stated in the petition that subsequently, the respondent No. 2 had left Spain and came back to India and after coming to India, the respondent No. 2 has filed Criminal Case No. 4386 of 2004 against the petitioners and one Pari Melwani, under the provisions of Sections 498-A, 406, 504, 506(2) and 114 of the Indian Penal Code and made vague allegations in the said case. The learned Chief Judicial Magistrate, Vadodara by his order dated 02.07.2004 issued process against the petitioners for the said offences. Being aggrieved and dissatisfied by the said order, CR.MA/3045/2005 7/57 JUDGMENT the petitioners / original accused have filed the present petition before this Court praying for quashing and setting aside the criminal proceedings filed by the respondent No. 2 against the petitioners. 6.Mr. Nilesh Pandya, learned advocate appearing for the petitioners has submitted that the Trial Court had no jurisdiction to initiate any proceedings against the petitioners as all the petitioners are not citizens of India and therefore the complaint under the provisions of the I.P.C. is not maintainable against the petitioners. In support of this submission, he invited the Court's attention to the provisions contained in Section 188 of the Criminal Procedure Code. It deals with offence committed outside India. It says that when an offence is committed outside India – (a) by a citizen of India, whether on the high seas or CR.MA/3045/2005 8/57 JUDGMENT 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. The proviso however says 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. Mr. Pandya has therefore submitted that Section 188 prohibits the learned Trial Court from taking any cognizance of the offence which has not been committed in India. 7.Mr. Pandya has further invited the Court's attention to the provisions contained in Section 4 of the Indian Penal Code. This Section extends the applicability of code to extra-territorial offences. It says that the CR.MA/3045/2005 9/57 JUDGMENT provisions of this code apply also to any offence committed by any citizen of India in any place within and beyond India, and any person on any ship or aircraft registered in India wherever it may be. Mr. Pandya has further submitted that since the petitioners are not citizens of India and offences are not committed in India, the provisions of I.P.C. would not apply to the petitioners. In support of this submission, he relied on the decision of the Hon'ble Supreme Court in the case of Central Bank of India Ltd. V/s. Ram Narain, AIR 1955 S.C. 36 wherein it is held that the language of Section 4 of I.P.C. And Section 188 of Cr.P.C. plainly means that if at the time of the commission of the offence, the person committing it is a citizen of India, then even if the offence is committed outside India, he is subject to the jurisdiction of the courts in India. The rule enunciated in the sections is CR.MA/3045/2005 10/57 JUDGMENT based on the principle that qua citizens the jurisdiction of Courts is not lost by reason of the venue of the offence. If, however, at the time of commission of the offence the accused person is not a citizen of India, then the provisions of these sections have no application whatsoever. 8.Mr. Pandya has further submitted that since no offence has been committed as per the complaint within the jurisdiction of India, the process issued by the Trial Court appears to be the result of non-application of mind and without jurisdiction. Even considering the allegations made in the complaint itself, no cause of action has arisen in India for the so-called offences alleged by the respondent No. 2 in the said criminal case and, therefore, the process issued by the learned Chief Judicial Magistrate, Vadodara is without jurisdiction. CR.MA/3045/2005 11/57 JUDGMENT Even as per the complaint, the respondent No. 2 has not made out any case with regard to the harassment of the respondent No. 2. The respondent No. 2 has involved all the petitioners in the said complaint only with a view to harass the petitioners and with malafide intentions to extort money from the petitioners. In support of this submission, he relied on the decision of the Hon'ble Supreme Court in the case of Y. Abraham Ajith and Others V/s. Inspector of Police, Chennai and another, [2004] 8 S.C.C. 100 wherein it is held that the crucial question is whether any part of the cause of action arose within the jurisdiction of the Court concerned. In terms of Section 177 Cr.P.C., it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused. In the case before the Hon'ble Supreme Court, the CR.MA/3045/2005 12/57 JUDGMENT complainant herself left the house of the husband on 15.04.1997 on account of alleged dowry demands by the husband and his relations. There is thereafter not even a whisper of allegations about any demand of dowry or commission of any act constituting an offence much less at place C. That being so, the logic of Section 178(c) Cr.P.C. relating to continuance of the offences cannot be applied. The Court, therefore, held that the inevitable conclusion is that no part of cause of action arose in the city Chennai and, therefore, the Magistrate concerned had no jurisdiction to deal with the matter. 9.Mr. Pandya has further submitted that the respondent No. 2 has filed absolutely false, frivolous and vexatious complaint against the petitioners. The learned Trial Judge has not applied his mind while issuing process against CR.MA/3045/2005 13/57 JUDGMENT the petitioners. All the ornaments and other valuables have already been handed over to the matrimonial uncle of the respondent No. 2 who is residing at Tenerife in Spain and separate document has also been executed for having received the said ornaments and other important valuable gifts from the petitioners. Despite this fact, the respondent No. 2 has made baseless and vague allegations in the complaint which are contrary to the documents produced and signed by the matrimonial uncle of the respondent No. 2. All the marriage expenses were borne by the petitioners and for that purpose, various bills are also produced on record along with this petition. This fact itself suggests that the respondent No. 2 has developed a totally false story just to file the complaint. The Trial Court has completely ignored the fact that at no point of time any demand of dowry was made by the petitioners. CR.MA/3045/2005 14/57 JUDGMENT There is also no specific allegation with regard to the so-called breach of trust. The petitioners have not given any threat to the respondent No. 2. On the contrary, the judicial separation has already taken place between the parties as per the local laws of Spain. He has further submitted that though the decree of judicial separation has already been granted by the competent Court of Spain, the respondent No. 2 has not purposefully disclosed the said facts in the complaint. It is, therefore, evident and clear that the complaint is filed by the respondent No. 2 with malafide intentions and ulterior motives. He has further submitted that the Trial Court should have considered that no ingredient to constitute the alleged offences said to have been committed by the petitioners are found in the complaint and since the respondent No. 2 has developed a false story and, therefore, on the ground of CR.MA/3045/2005 15/57 JUDGMENT suppression of facts, the present complaint is required to be quashed and set aside. Mr. Pandya has further submitted that the petitioner Nos. 4,6 & 7 are already married and they are residing separately with their family. Despite this fact, the respondent No. 2 has made baseless allegations in the complaint that all are residing in one family. The respondent No. 2 has made baseless and vague allegations against the petitioner No. 8 who is a sister of petitioner No. 1 and the same are very disgusting and shocking that one in wildest dream cannot imagine such things. This would show the moral values and attitude of the respondent No. 2. Right from the first day, the respondent No. 2 never responded as a normal wife and was always giving lame excuses and because of such attitude of the respondent No. 2, the judicial separation took place between the parties in Spanish Court. All CR.MA/3045/2005 16/57 JUDGMENT these aspects of the matter have not been taken into consideration by the learned Chief Judicial Magistrate while issuing process against the petitioners. In such matters, what should be the role of the Court while considering the petition for quashing under Section 482 of Cr.P.C., has been succinctly explained by the Hon'ble Supreme Court in Pepsi Foods Limited and Another V/s. Special Judicial Magistrate and Others, (1998) 5 S.C.C. 749 wherein the Hon'ble Supreme Court with reference to Bhajanlal's case (1992 Supp (1) SCC 335) has observed that guidelines laid therein as to whether the Court will exercise jurisdiction under Section 482 of the Code could not be inflexible or laying rigid formula to be followed by the Courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any CR.MA/3045/2005 17/57 JUDGMENT court or otherwise to secure the ends of justice. It is well settled that these powers have no limits. Of course, where there is more power, it becomes necessary to exercise utmost care and caution while invoking such powers. 10.The Hon'ble Supreme Court has also made certain observations though in a slightly different context, in the case of G.V. Rao V/s. L.H.V. Prasad and others, 2000 (3) S.C.C. 693 which are very apt for determining the approach required to be kept in view in a matrimonial dispute by the Courts. It was said that there has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous CR.MA/3045/2005 18/57 JUDGMENT crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their “cases” in different courts. 11.Based on the aforesaid judgments, Mr. Pandya has strongly urged before the Court that the process issued by the learned Magistrate is contrary to the statutory provisions as contained in Cr.P.C. as well as I.P.C. and also CR.MA/3045/2005 19/57 JUDGMENT against the settled legal propositions. He has therefore submitted that this is a fit case where this Court should exercise its inherent jurisdiction under Section 482 of Cr.P.C. and quash the complaint. 12.Mr. P.M. Thakkar, learned Senior counsel appearing with Mr. S.P. Majmudar, learned advocate for the respondent No. 2 has submitted that the whole base of the arguments canvassed by Mr. Pandya, learned advocate appearing for the petitioners is erroneous as it proceeded on the footing that no offence has been committed in India. This, on the face of it, is not correct and contrary to the facts and evidence on record. He has submitted that the petitioners themselves in this petition have stated that marriage mentioned in the petition was solemnized in India and thereafter, for some period they stayed in India. The CR.MA/3045/2005 20/57 JUDGMENT petitioners may not be citizens of India nor do they have permanent residence in India but after the marriage, the petitioners including petitioner No. 1 had stayed in India and respondent No. 2 after the marriage stayed with the petitioner No. 1 as his wife. The marriage took place on 25.01.2003 at Vadodara and was also registered with Registrar of Marriages at Vadodara. After the marriage, the respondent No. 2 went to Spain to stay with the petitioner No. 1 and she was met out physical and mental cruelty by the petitioners. Though the respondent No. 2 got married with the petitioner No. 1, he refused to have any matrimonial relations with the respondent No. 2. Though the petitioner No. 1 was the husband of the respondent No. 2, he refused to cohabit with the respondent No. 2 or consummate marriage. He has further submitted that right from the day when the petitioners took the CR.MA/3045/2005 21/57 JUDGMENT respondent No. 2 to Spain, they tortured and tormented her in a very cruel manner. Ultimately, they compelled the respondent No. 2 to leave the house and then they compelled the respondent No. 2 even to leave Spain and go to India. The respondent No. 2 was under tremendous shock. Initially, while in Vadodara, when the petitioners meted out harassment to the respondent No. 2, she thought probably because they were placed in a new situation, the petitioners were trying to force the respondent No. 2 to submit their demands of dowry but the harassment persisted and kept on increasing and ultimately, the respondent No. 2 was driven out by the petitioners. The parents of the respondent No. 2 were also under shock and ultimately, she was left with no other option but to file complaint under Section 498- A, 406, 502, 114 etc. of I.P.C. CR.MA/3045/2005 22/57 JUDGMENT 13.Mr. Thakkar has further submitted that the plain reading of the complaint would reveal that the petitioners had committed the offences mentioned in the complaint and there are strong chances of the respondent No. 2 succeeding in the said complaint. There is strong prima facie evidence against the petitioners. The learned Chief Judicial Magistrate had rightly issued process. The respondent No. 2 should be given an opportunity to prove her case by leading proper evidence. This is not a case which can be quashed at the threshold and depriving the respondent No. 2 of an opportunity to prove her case. The petitioners have ruined the life of the respondent No. 2 and the respondent No. 2 was totally broken, physically as well as mentally. The petitioners have compelled the parents of the respondent No. 2 to incur huge expenses for marriage beyond their capacity and they were CR.MA/3045/2005 23/57 JUDGMENT also compelled to give expensive gifts over and above huge amount in cash given to them and their greed was never satisfied. The petitioners started right from day one after marriage, continued the same when they went to Spain and they kept on threatening the respondent No. 2 even after she came to India. The Court at Vadodara also have jurisdiction to entertain, try and decide the complaint. 14.Mr. Thakkar has further submitted that the petitioners have made certain false, frivolous and bald allegations in the present petition and they are deliberately trying to malign the respondent No. 2. The respondent No. 2 tried level best to accept the family of the petitioners as her own family and she tried to do everything that she could be a part of their family, inspite of the fact that the respondent No. 2 was in a totally new environment and CR.MA/3045/2005 24/57 JUDGMENT amongst complete strangers. However, all her efforts were brutally repelled by the petitioners by inflicting upon the respondent No. 2 tremendous mental and physical cruelty. The respondent No. 2 was never willing to severe relations with the petitioners. She was trying and hoping that as the time passes things would settle down. However, the petitioners were bent upon harassing her for dowry and hence, they forced the respondent No. 2 to leave the house. They have actually managed to first, leave the respondent No. 2 at her matrimonial Uncle's place in Spain and from there, compelled her to leave for India. After the respondent No. 2 left for India, the petitioner No. 1 filed petition for judicial separation in Spain and suppressing the above fact, caused the notice to be served at her matrimonial Uncle's place in Spain and ultimately succeeded in getting orders in their CR.MA/3045/2005 25/57 JUDGMENT favour. Mr. Thakkar has further submitted that the demand of dowry was made by the petitioners at Vadodara. Moreover, even after reaching Vadodara, the parents of the respondent No. 2 tried to sort out the matter. However, the in- laws behaved in a weird manner and used abusive language against the parents of the respondent No. 2. They have also threatened that in no case, they would take the respondent No. 2 back to Spain. The offence alleged in the complaint by the respondent No. 2 are continuing offences and they have been committed in the local jurisdiction of the Court at Vadodara. If the entire bundle of facts are considered, it would be amply clear that the Court at Vadodara has jurisdiction to try the said offences. 15.Mr. Thakkar has further submitted that various articles constituting “stridhana” of the respondent No. 2 have not been given to her by CR.MA/3045/2005 26/57 JUDGMENT the petitioners. The details of the list of such articles are given at para 3 & 4 of the complaint. The criminal breach of trust is committed by the petitioners in not returning these articles to the respondent No. 2. These articles have never been handed over to the matrimonial uncle of the respondent No. 2 as averred by the petitioners. Simply because some inconvenience would be caused to the petitioners in coming to Vadodara for the purpose of trial, it cannot be a ground for quashing the complaint. The petitioners in a calculated manner have committed fraud on the respondent No. 2 and have spoiled her life and hence, they ought not to go scot-free. The petitioners have abused the process of law by filing the present petition for quashing of the complaint. The petitioners have collectively tried to ruin the life of the respondent No. 2. The level of cruelty met out to the respondent CR.MA/3045/2005 27/57 JUDGMENT No. 2 was tremendous and ultimately, there was a danger to her life. Before marriage, the respondent No. 2 was lured by the petitioners. Mr. Thakkar has further submitted that in the petition itself, there are several contradictory statements and misstatements. On the one hand the petitioners admit that there is cruelty meted by them but say the Court at Vadodara has no jurisdiction to try the same and on the other hand, they say that they are not responsible for the alleged cruelty. In view of these contradictory statements which are apparent on reading the petition, the petition deserves to be dismissed outright. 16.Mr. Thakkar has further submitted that as per the law laid down