CR.MA/3066/2007 1/33 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 3066 of 2007 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= = 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 ? ========================================= = NEEL DILIP SHAH & 3 - Applicant(s) Versus THE STATE OF GUJARAT & 1 - Respondent(s) ========================================= Appearance : MR MITESH R AMIN for Applicant(s) : 1 - 4. PUBLIC PROSECUTOR for Respondent(s) : 1, MR BR GUPTA for Respondent(s) : 2, ========================================= = CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 29/02/2008 ORAL JUDGMENT 1. By this application under section 482 of the Code of CR.MA/3066/2007 2/33 JUDGMENT Criminal Procedure, 1973 (the Code), the petitioners seeks quashment of the compliant registered vide Criminal Case No.2163/07 instituted in the Court of the Metropolitan Magistrate, Ahmedabad, Court No.22 for the offence punishable under section 498A of the Code read with sections 34 and 114 of the Code. 2. In brief the facts giving rise to the present petition as stated in the petition are that the marriage of the petitioner No.1 and respondent No.2 was solemnized at Ahmedabad on 20th May, 1990. The matrimonial home is situated at Delhi. Petitioner No.2 and 3 are the parents of petitioner No.1 and petitioner No.4 is the brother of petitioner No.1. Out of the wedlock between petitioner No.1 and respondent No.2 there are two minor sons Tanay and Raj aged 15 and 10 years. 3. After their marriage, the petitioner No.1 and respondent No.2 initially resided at Delhi. Thereafter they moved to the Republic of Ireland in September 1993 and lived there till June 1996 after which they moved to London and lived there till 1998. They then moved to Yeovil County Sumerset in U.K. from where they moved to Torquay County Devon in the month of October 1999. Soon after they shifted there, the respondent No.2 deserted petitioner NO.1 and their two children and went to a friend in London and thereafter moved to the U.S.A. where she was living with her brother and then went to Ahmedabad in November/December 1999. In the last week of November 1999, petitioner No.2 came CR.MA/3066/2007 3/33 JUDGMENT back to India with both the children. Finally, the petitioner No.1 was forced to take a decision to leave his job in the U.K. and return to Indian permanently. He accordingly returned to India in February 2000 and is working as a Senior Consultant Surgeon at the Apollo Hospital, New Delhi. According to the petitioners during the period between October, 1999 to March, 2001 petitioners No.1, 2 and 3 looked after both the children and the respondent No.2 never even bothered to inquire about the children, their education or welfare. 4. The petitioner No.1’s maternal grandmother expired at Delhi in March, 2001 whereupon the respondent NO.2 and her mother attended the Besana and met the petitioner No.2 and on account of efforts made by the petitioner No.2, respondent No.2 eventually decided to join the petitioner No.1 and the children at New Delhi and moved to New Delhi in the Month of March, 2001 and lived there till June 2006. In June 2006, respondent No.2 visited Ahmedabad and returned on or about 27th June, 2006 and things were absolutely normal after here return. However, on 6th July, 2006, under the pretext of taking the children to tennis and science classes, respondent NO.2 took the evening flight to Ahmedabad taking the children with her without informing the petitioners No.1, 2 and 3. 5. After trying in vain to contact respondent No.2 lodged a complaint regarding not being able to establish contact with the respondent No.2 and their children. At 11:30 at CR.MA/3066/2007 4/33 JUDGMENT night the respondent No.2’s father informed the petitioner nO.1 that respondent No.2 and the children had reached Ahmedabad. According to the petitioners they had found that the respondent No.2 had left with clothes, books etc. was well as ornaments belonging to petitioners NO.1 and 3 and cash in excess of Rs.4.00 lacs, hence on 10th July, 2006 petitioner No.1 lodged a complaint against the respondent No.2 at Chittranjan Police Station, New Delhi. 6. ON 10th July, 2006 the respondent, No.2 filed a family suit being Family Suit No.650/2006 seeking permanent injunction restraining the petitioner No.1 from forcibly taking away the custody of the two children from her wherein summons were served upon the petitioner No.1 on or about 15.7.2006 along with copy of plaint as well as copy of complaint filed by respondent No.2 on 6.7.2006 before the Ellisbridge Police Station. 7. On 31.7.2006, the petitioner No.1 filed a family suit seeking divorce as well as custody of minor children being Family Suit No.728/2006 in reply to which, on 28.9.2006, the respondent No.2 made an application for interim alimony. Thereafter the petitioner No.1 filed an application for transfer of Family Suit No.650/2007 in the Supreme Court of India, which was not accepted. 8. Subsequently the respondent No.1 filed the complaint in question on 13.3.2007 before the learned Metropolitan CR.MA/3066/2007 5/33 JUDGMENT Magistrate, Court No.22, Ahmedabad alleging commission of offences punishable under sections 498A, 34 and 114 of the Indian Penal Code against the petitioners. The said case was registered as Criminal Case No.2163/07 and summons were issued against the petitioners and the petitioners were directed to furnish sureties of Rs.5000/- and summons were made returnable on 30th March, 2007 which has given rise to the present petition, interalia on the ground that the learned Metropolitan Magistrate has no territorial jurisdiction to decide the complaint. 9. Heard learned Senior Advocate Mr. Mihir J. Thakore with Mr. Rahul Pandya and Mr. Mitesh Amin learned Advocates for the petitioners, Mr.B.R. Gupta learned Advocate for respondent No.2 and Mr. M.R. Mengdey learned Additional Public Prosecutor for respondent No.1 State of Gujarat. 10. Mr. Thakore learned Senior Advocate put forward mainly two contentions. Firstly that the learned Metropolitan Magistrate, Ahmedabad had no jurisdiction to entertain the complaint; and secondly that in any event the learned Metropolitan Magistrate was not justified in issuing process without making inquiry as envisaged under the provisions of section 202(1) of the Code. 11. The learned Senior Advocate submitted that a bare CR.MA/3066/2007 6/33 JUDGMENT reading of the complaint would show that no part of the cause of action arose within the territorial jurisdiction of the Metropolitan Court at Ahmedabad, where the complaint was filed. Therefore, the entire proceedings had no foundation. The learned Senior Advocate took the Court through the entire complaint to point out that none of the allegations made therein pertain to commission of any offence at Ahmedabad and that all the alleged incriminating acts are stated to have been committed at Delhi and not at Ahmedabad. It is also pointed out that the only allegations pertaining to acts having been committed at Ahmedabad are contained in paragraph No.4 of the complaint petition, wherein it is alleged that the petitioner No.1 was trying to entice away his minor sons from the complainant’s custody. The learned Senior Advocate has stressed that the only offence alleged against the petitioners is under section 498A read with sections 34 and 114 of the Indian Penal Code, 1860 (IPC), and submitted that the allegations of enticement and retention of streedhan would not constitute offence under section 498A, whereas all other incriminating acts are alleged to have been committed at Delhi. In any event, it is submitted that after the complainant left the matrimonial home with the children, if the petitioner No.1-father tried to talk to his children and persuade them to come to New Delhi with him, the same cannot be said to be enticement so as to constitute any offence under the IPC. 12. The learned Senior Advocate referred to the scheme of CR.MA/3066/2007 7/33 JUDGMENT Chapters XIV and XV of the Code to submit that in view of the provisions of section 201 of the Code, a Magistrate may take cognizance of an offence, but thereafter, the moment he finds that he has no jurisdiction, he is required to transfer the case to the Court of competent jurisdiction. According to the learned Senior Advocate, prior to issuance of process the learned Magistrate is required to first apply his mind to the facts of the case to see whether or not he has jurisdiction to deal with the case, if he fails to do so the issuance of process is bad. On facts it is pointed out that the learned Metropolitan Magistrate has issued process under section 204 of the Code without applying his mind as to whether he has the territorial jurisdiction to deal with the case. 13. However, the core of the submissions advanced by the learned Senior Advocate was that in view of the amended provisions of section 202 of the Code, issuance of process without making inquiry as envisaged under sub-section (1) of section 202 of the Code was in breach of the said provision. It was contended that after the amendment of 2005, which was brought into force with effect from 23rd June, 2006, in case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, it has become mandatory for the Magistrate to postpone the issue of process and make inquiry for the purpose of deciding whether or not there is sufficient ground for proceeding. On facts it is pointed out that the CR.MA/3066/2007 8/33 JUDGMENT petitioners No.1, 2 and 3 who are the main accused, are residing outside the area in which the learned Metropolitan Magistrate exercises his jurisdiction. 14. It is next contended that insofar as the petitioner No.4 is concerned, he resides at Ahmedabad and has been falsely roped in. It is pointed out that the only allegations against him are contained in paragraph 16 of the complaint petition, which make it abundantly clear that the allegations against him are vague and are only made with the malafide intention of roping in as many persons as possible. 15. Lastly it is contended that the married life of the petitioner No.1 and the complainant was of 16 years. The complainant left the matrimonial home on 6th July, 2006 after which she had filed a family suit in the year 2006. The petitioner No.1 had also filed a divorce petition in the year 2006, whereas the complaint in question has been lodged as late as on 12th March, 2007. It is submitted that in the circumstances, the complaint is required to be quashed on the ground that the same has been filed after a substantial delay. 16. In support of his submissions, the learned Senior Advocate has placed reliance upon the following decisions: [a] The decision of the Supreme Court in the case of CR.MA/3066/2007 9/33 JUDGMENT Emperor v. Goverdhan Ridkaran, 30 BLR 387. [b] The decision of the Supreme Court in the case of Emperor v. Ramnarayan Baburao Kapur, 39 BLR 61. [c] The decision of the Supreme Court in the case of Narumal v. State of Bombay, AIR 1960 SC 1829. [d] The decision of the Supreme Court in the case of Sujata Mukherjee (Smt) v. Prashant Kumar Mukherjee, (1997) 5 SCC 30. [e] The decision of the Supreme Court in the case of Abrahma Ajith and others v. Inspector of Police, Chennai, (2004)8 SCC 100 Y. [f] The decision of the Supreme Court in the case of Ramesh and others v. State of T.N. Territorial, (2005)3 SCC 507. [g] The decision of the Supreme Court in the case of Manish Ratan and others v. State of M.P. And another, (2007)1 SCC 262. [h] The decision of the Supreme Court in the case of Trisuns Chemical Industry v. Rajesh Agarwal and others, (1999)8 SCC 686. [i] The decision of the Supreme Court in the case of CR.MA/3066/2007 10/33 JUDGMENT State of Karnataka and another v. Pastor P. Raju, (2006)6 SCC 728. [j] The decision of the Allahabad High Court in the case of Hari Singh and another v. State of U.P., 1992 Cri.L.J. 1802. [k] The decision of this Court in the case of State of Gujarat v. Patel Jivraj Khimji and others, 1966 GLR 935. [l] The decision of the Supreme Court in the case of Jamuna Singh and others v. Bhadai Shah, AIR 1964 SC 1541. 17. In response, Mr. Gupta learned Advocate for the complainant-wife respondent No.2 herein, submitted that there is no statutory provision for the time being in force, which prevents the complainant from enforcing her statutory rights which give her a right of remedy and that no limitation has been provided for invoking such legal remedies. It is urged that the complaint was not lodged immediately as the respondent No.2 did not want to precipitate the situation. 18. It is emphatically argued that considering the law laid down by the Supreme Court in the case of Trisuns Chemical Industry (supra) the learned Metropolitan Magistrate was duly empowered to take cognizance of the offence, hence the present proceeding is not CR.MA/3066/2007 11/33 JUDGMENT maintainable at law. It was pointed out that the petitioner No.1 had sought to get the family suit filed by the respondent No.2 wife transferred to a Court at Delhi on the ground of lack of jurisdiction, which had been rejected by the Supreme Court, to submit that what could not be achieved before the Supreme Court, is sought to be achieved here. It is further pointed out that the petitioner No.1 had himself filed a petition under section 13 of the Hindu Marriage Act, read with section 25 of the Guardian and Wards Act, 1890 before the Family Court at Ahmedabad seeking a decree of divorce as well as custody of both the children and had accordingly submitted to the jurisdiction of the Courts at Ahmedabad, hence it was now not open for the petitioners to contend that the learned Metropolitan Magistrate lacks the territorial jurisdiction to deal with the case. 19. On the question of territorial jurisdiction it was submitted that the petitioners had tried to entice away the children from the custody of the complainant at Ahmedabad, hence part of the cause of action arose at Ahmedabad, accordingly, the complainant had a choice to invoke jurisdiction either at Ahmedabad or Delhi. Referring to the definition of the expressions “entice”, “enticement” and “enticement of a child” contained in West’s Legal Thesaurus/ Dictionary by William Statsky, P Ramanatha Aiyar’s Concise Law Dictionary as well as Black’s Law Dictionary (Sixth Edition) etc. it was sought to be contended that the act of the petitioners in trying CR.MA/3066/2007 12/33 JUDGMENT to entice away the minor children was indeed an offence as envisaged under the Indian Penal Code. 20. It was submitted that in any case the offences alleged in the complaint petition were continuing in terms of section 178(c) of the Code, and, therefore, the Metropolitan Court at Ahmedabad had the jurisdiction to deal with the matter. According to the learned Advocate, non-maintenance of legally wedded wife and children also constitutes mental cruelty and that withholding of streedhan also amounts to an offence under sections 405 and 406 IPC. It was submitted that though the compliant may have been filed alleging commission of the offence under section 498A IPC, it is not the label but the substance of the complaint which decides which provisions are invoked. Non-mentioning of section 406 IPC which is ex facie attracted will not matter and the Magistrate can proceed under the said section at the time of trial. It is emphatically submitted that while considering the question of jurisdiction it is not only the place where the offence has been committed which is to be looked into but also the place where the consequences ensue. It is submitted that withholding of streedhan and other articles belonging to the respondent No.2 and her sons causes undue mental cruelty and hardships to them at Ahmedabad. Hence, as the consequences of the offences committed by the petitioners ensue at Ahmedabad, the Metropolitan Court had the territorial jurisdiction to deal with the case. CR.MA/3066/2007 13/33 JUDGMENT 21. Answering to the contention regarding non compliance of the mandatory provisions of section 202(1) of the Code it is submitted that an inquiry under section 202 of the Code contemplates recording the statement of the complainant on oath, therefore, it is deemed that the learned Metropolitan Magistrate had made enquiry as envisaged under section 202 after recording the statement on oath of the complainant and had thereafter issued process. It is contended that issuance of process itself signifies that on the basis of the inquiry made, the learned Metropolitan Magistrate was satisfied that process is required to be issued and had accordingly issued process. According to the learned Advocate, the nature of inquiry in case of marital offences would not be any different than examining the complainant on oath. Hence, inquiry under section 200 and 202 would be the same. It is, accordingly, urged that there was due compliance with the provisions of sub-section (1) of section 202 of the Code. 22. The learned Advocate next referred to the provisions of section 460(e) and (f) of the Code to submit that taking cognizance of an offence under clause (a) or clause (b) of sub-section (1) of section 190 by a Magistrate not empowered by law to do so, is merely an irregularity, which does not vitiate the proceedings. Attention is also drawn to the provisions of section 462 and 465 of the Code to point out that there is no failure of justice if a case is tried by another Magistrate. It is urged that the approach of the higher Courts in cases involving CR.MA/3066/2007 14/33 JUDGMENT matrimonial disputes should be to interpret the provisions in favour of the wife. 23. It is next submitted that the issue of jurisdiction is a mixed question of law and facts, which is required to be decided in the light of the peculiar facts of each case. It is argued that in proceedings under section 482 of the Code, all that the Court is required to examine is as to whether the allegations made in the complaint even if taken at face value can be said to constitute the offence alleged. It is submitted that in the facts of the case, on the basis of the allegations made in the complaint petition, it cannot be said that the offence under section 498A is not made out; hence, the question of quashing the complaint does not arise. Hence, even if this Court were to hold that the learned Metropolitan Magistrate does not have the jurisdiction to entertain the complaint, the complaint in its entirety cannot be quashed, but is required to be returned for production before the appropriate Court. 24. In support of his submissions, the learned Advocate has placed reliance upon the following decisions: [a] The decision of the Supreme Court in the case of Rashmi Kumar (Smt) v. Mahesh Kumar Bhada, (1997)2 SCC 397. [b] The decision of this Court in the case of State of CR.MA/3066/2007 15/33 JUDGMENT Gujarat v. Amrutlal Prabhudas, 1964 GLR 1059. [c] The decision of the Supreme Court in the case of Smt.Sujata Mukherjee v. Prashant Kumar Mukherjee, AIR 1997 SC 2465. [d] The decision of the Supreme Court in the case of Arun Vyas and another v. Anita Vyas, AIR 1999 SC 2071. [e] The decision of the Punjab & Haryana High Court in the case of Rajesh Kumar and others v. State of Punjab, 1992 Cri.L.J. 1815. [f] The decision of the Supreme Court in the case of Mohan Baitha and others v. State of Bihar and another, AIR 2001 SC 1490. [g] The decision of the Madhya Pradesh High Court in the case of Faisal Nabi v. State of Madhya Pradesh, 2001 CRI.L.J. 1598. [h] The decision of the Supreme Court in the case of Vijaya v. Laxmanrao and another, (1998)8 SCC 415. [i] The decision of the Supreme Court in the case of Vanka Radhamanohari (Smt) v. Vanka Venkata Reddy and others, (1993)3 SCC 4. [j] The decision of the Supreme Court in the case of Dhanlakshmi v. R.Prasanna Kumar and others, CR.MA/3066/2007 16/33 JUDGMENT AIR 1990 SC 494. [k] The decision of the Supreme Court in the case of Deepti alias Arati Rai v. Akhil Rai and others, (1995)5 SCC 751. 25. In rejoinder, Mr. M.J. Thakore learned Senior Advocate has referred to the provisions of section 460 and 461 of the Code in detail, to point out that the said provisions do not take within their sweep, section 202 of the Code. It is accordingly submitted that the contention that non- compliance with the mandatory provisions of section 202 of the Code does not vitiate the proceedings is misconceived. It is urged that firstly the mandatory provision of sub-section (1) of section 202 of the Code has not been complied with, secondly the said provision is not covered under section 460 and thirdly the petitioners are raising objection at the earliest stage, hence the provisions of section 460 of the Code will not have any applicability to the facts of the present case. 26. In the background of the facts and contentions noted hereinabove, the main issues that arise for consideration before this Court are (i) Whether the learned Metropolitan Magistrate, Ahmedabad has the territorial jurisdiction to deal with the case? (ii) If the answer is in the negative whether the learned Metropolitan Magistrate is still empowered to take cognizance of the case and issue process? (iii) Whether the issue of process is bad on the ground of non- CR.MA/3066/2007 17/33 JUDGMENT compliance with the mandatory provisions of sub- section (1) of section 202 of the Code? 27. As contended by the learned Advocate for the respondent No.2, the issue regarding territorial jurisdiction is indeed a mixed question of law and fact. However as the learned Counsel for the contesting parties have made elaborate submissions on this issue, this Court deems fit to decide the issue, instead of relegating the parties to the concerned court. The issue of territorial jurisdiction of the Court has to be examined in the light of the allegations made in the complaint petition. The factual position in the present case is that on account of cruelty meted out to her, the complainant was forced to leave the matrimonial home at New Delhi on 6th July, 2006 and had come to Ahmedabad and started residing with her parents. Thereafter there is not even a whisper of allegations about commission of any act constituting an offence. That being so the provisions of section 178(c) of the Code relating to continuance of the offence cannot be applied. A bare reading of the complaint shows that all the allegations regarding physical and mental cruelty are in respect of acts committed at Delhi. The only allegation pertaining to Ahmedabad is regarding the petitioner No.1 trying to entice away the minor sons from the complainant’s custody. This Court has perused the provisions of section 361 and 498 IPC as well as the definitions of the expression “entice” and other related terms on which reliance has been placed by the learned Advocate for CR.MA/3066/2007 18/33 JUDGMENT the respondent No.2. However, in the opinion of this Court the act of the petitioner No.1 father in trying to talk to and persuade his minor sons to go with him to Delhi cannot be said to be enticement so as to amount to an offence under the Indian Penal Code. Retention of streedhan also cannot be said to be an offence, which has been committed within the territorial jurisdiction of the Metropolitan Court at Ahmedabad. Besides, as can be seen from the complaint, the offence alleged against the petitioners is under