Satish Kumar Malhotra and Others Vs. State of Haryana and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1056999
CourtPunjab and Haryana High Court
Decided OnNov-19-2012
AppellantSatish Kumar Malhotra and Others
RespondentState of Haryana and Another
Excerpt:
crl. misc. not m-31193 o”1. .in the high court of punjab and haryana at chandigarh criminal misc. not m-31193 of 2011 (o&m) date of decision : november 19th, 2012 satish kumar malhotra and others ...petitioners versus state of haryana and another ...respondents coram : hon'ble mr.justice vijender singh malik 1 whether reporters of local papers may be allowed to see the judgment?. 2.whether to be referred to the reporters or not?. 3.whether the judgment should be reported in the digest?. present mr.r.s.rai, senior advocate, with mr.gautam dutt, advocate, for the petitioners.mr.sagar deswal, a.a.g.haryana, for the state. mr.parminder singh, advocate, for the complainant. vijender singh malik, j. satish kumar malhotra and three others.the petitioners have brought this petition under the provisions of section 482 cr. p.c., for quashing of fir no.653 dated 1.9.2011, registered at police station civil lines, karnal, district karnal (annexure p8) for an offence punishable under sections 406, 498-a and 506 of indian penal code along with all the subsequent proceedings arising out of the same being abuse of the process of the court. crl. misc. not m-31193 o”2. .learned senior counsel for the petitioners has submitted that marriage between darun malhotra, respondent no.2 and hari om malhotra was solemnized on 28.2.2008 at new delhi. according to him, the couple resided together at new delhi. according to him, the firs.fir was lodged by darun malhotra on 23.6.2011 at police station greater kailash, south east district, new delhi against her husband, father-in- law and mother-in-law for an offence punishable under sections 380 and 341 read with section 34 ipc. according to him, this fir, bearing no.79 dated 23.6.2011, is annexure p/2 on the record. he has further submitted that the allegations were that the aforesaid persons had stolen her belongings and the police recovered the goods and those goods were got released by the complainant on supardari. learned senior counsel for the petitioners has submitted that the second fir, bearing no.80 dated 24.6.2011 was registered at the the same police station for an offence punishable under sections 354, 506 ipc in which she had levelled allegations against her father-in-law. he has further submitted that the complainant is still in occupation of the basement portion of the house and for getting that portion vacated from the complainant, her father-in-law filed a suit for her eviction. he has further submitted that in that civil suit, notice was issued to the complainant on 4.8.2011 which was served upon the complainant – respondent no.2 at that very basement portion on 29.8.2011 in greater kailash. learned senior counsel for the petitioners has further submitted that the present fir, bearing no.653 has been got registered by the complainant on 1.9.2011 at karnal. according to him, a petition crl. misc. not m-31193 o”3. .under the protection of women from domestic violence act, 2005 and divorce petition have also been filed at delhi. according to learned senior counsel for the petitioners.on 29.8.2011, the complainant was living in delhi. according to him, she came to karnal just for registration of the fir and returned to delhi soon thereafter. according to him, she is still occupying the basement portion of the house. according to him, none of the petitioners either visited karnal with her to commit any act which may attract the offence for which the present fir has been lodged. according to him, there was no territorial jurisdiction at karnal for lodging this fir because the cause of action, if any, had arisen at delhi and nowhere else. he has further submitted that the incident of 2009 which is mentioned in the fir is concocted. according to him, had there been any such incident, it would have found mention in the earlier two or either of the two firs . according to him, the absence of this allegation in the earlier two firs shows that no such incident had taken place. he has, thus, submitted that the fir is liable to be quashed on the ground of lack of jurisdiction at karnal. learned state counsel has submitted, on the other hand, that the offence reported in fir no.653 dated 1.9.2011 is a continuing offence. he drew my attention to the last five lines of page no.86 of the fir (annexure p8) and has submitted that this act has been committed by the petitioners at karnal and this gives cause of action to the complainant to lodge the fir at karnal. learned counsel for the complainant has submitted on the other hand that the complainant gave birth to a female child on crl. misc. not m-31193 o”4. .19.12.2008. according to him, father-in-law of the complainant disinherited his son on 15.6.2010. he has further submitted that the report of process server dated 29.8.2011 is forged one. he has further submitted that the petitioner is not living at karnal because her father-in- law had withdrawn all the amenities from the basement portion of the house. according to him, the offence being continuing one and having been committed at delhi as well as at karnal, police station at karnal had the jurisdiction to register a case on these facts. in this regard, he drew my attention to a case reported as sunita kumari kashyap versus state of bihar and another 2011(3) r.c.r.(criminal) 512, where it is laid down as under :-“11. we have already adverted to the details made by the appellant in the complaint. in view of the specific assertion by the appellant-wife about the ill-treatment and cruelty at the hands of the husband and his relatives at ranchi and of the fact that because of their action, she was taken to her parental home at gaya by her husband with a threat of dire consequences for not fulfilling their demand of dowry, we hold that in view of sections 178 and 179 of the code, the offence in this case was a continuing one having been committed in more local areas and one of the local areas being gaya, the learned magistrate at gaya has jurisdiction to proceed with the criminal case instituted therein. in other words, the offence was a continuing one and the episode at gaya was only a consequence of continuing offence of harassment of illtreatment meted out to the complainant, clause (c) of section 178 is attracted. further, from the allegations in the complaint, it appears to us that it is a continuing offence of illtreatment and humiliation meted out to the appellant in the hands of all the accused persons and in such continuing offence, on some crl. misc. not m-31193 o”5. .occasion all had taken part and on other occasion one of the accused, namely, husband had taken part, therefore, undoubtedly clause (c) of section 178 of the code is clearly attracted.” he has also placed reliance upon a single bench decision of hon`ble rajasthan high court (jaipur bench) in gulshan kapoor and others versus state of rajasthan and another 2012 (1) r.c.r.(criminal) 38 where the decision in sunita kumari kashyap's case had been followed. learned counsel for the complainant has further submitted that the case is still at the stage of investigation and delay in investigation is due to the orders passed by this court. annexure p8 is the copy of fir no.653 dated 01.9.2011, registered at police station civil lines, karnal district karnal. there is no dispute between the parties that the complainant and her husband have cohabited at new delhi. it is also not a fact in dispute that the marriage was solemnized at new delhi. the question precisely is as to whether any offence has been committed at karnal which can either bring the case within the purview of section 178 (b) or (c) cr.p.c.under section 178(b) if an offence is committed partly in one local area and partly in another, it may be enquired into or tried by a court having jurisdiction over any of such local areas. under section 178 (c) cr.p.c.if the offence is continuing one and continues to be committed in more local areas than one, still it may be enquired into or tried by a court having jurisdiction over any of such local areas. therefore, if it is a case where the offence reported is partly committed in crl. misc. not m-31193 o”6. .new delhi and partly in karnal or it being continuing offence continued to be committed in more than one local areas, one of those being karnal, the same could be enquired into or tried by a court at karnal. para no.18 of the fir contained the allegations regarding the incident of march, 2009 which is alleged to have been an offence committed in the area of karnal. it is in the following terms:- “18. that in the month of march, 2009 the accused persons went to pehowa on the death of cousin of accused no.2 satish malhotra and after returning from pehowa all the accused persons stayed at karnal at the house of the parents of the complainant and they stated that they have given the flat and cash in fdr to her daughter accused no.4 and also raised the demand from the parents of the complainant to give a flat in the shape of dowry but the father of the complainant shown his inability to give flat in a dowry to the accused persons and thereafter the accused persons again started harassing the complainant by taunting, nagging etc.” perusal of this part of the fir would confront one with the question as to whether it can be believed to have happened to the complainant in this manner. accused persons are said to have gone to pehowa on the death of cousin of accused no.2, satish malhotra. while returning from pehowa, they stayed at karnal at the house of the parents of the complainant. they had stated that they had given the flat and cash in the shape of f.d.r.to their daughter i.e., accused no.4 and also raised the demand upon the parents of the complainant to give a flat in the shape of crl. misc. not m-31193 o”7. .dowry and that the father of the complainant expressed his inability to give flat by way of dowry and thereafter the accused persons again started harassing the complainant by taunting, nagging etc.it could be believed that the accused while returning from pehowa could stay at the parental home of the complainant. however, if it is to be believed that they told the parents of the complainant that they had given a flat and cash in the shape of f.d.r.to accused no.4, dr. manisha verma, accused no.4 (petitioner no.4 here) can never be a party to this statement. it can also be believed that her father could express his inability to give a flat by way of dowry. however, on such a visit, which was on the way to delhi from pehowa, harassing by way of taunting, nagging etc.cannot be believed. such a conduct of taunting, nagging, etc.on the part of the petitioners could be believed if their visit of karnal was for a number of days. the complainant had lodged an fir on 23.6.2011 bearing no.79 for an offence punishable under sections 380 and 341 read with section 34 ipc against her husband, father-in-law and mother-in-law levelling allegations of theft against them. she lodged another fir no.80 dated 24.5.2011 against her father-in- law for an offence punishable under sections 354, 506 ipc. if any such incident had taken place in march, 2009, she could be expected to narrate the same in the said firs and the offence under section 498-a etc.could also have been added in those firs.the fact that no whisper is there about this incident in the aforesaid two firs would clearly show that this allegation is just concocted. another allegation is there in the fir where it is said that after crl. misc. not m-31193 o”8. .birth of the female child to the complainant, she came to karnal and when she was being taken back, her in-laws abused her at the moment they were entering her matrimonial house. it shows that the said abusing had taken place at delhi. to repel the submission that the complainant had been living at delhi all the times and that she had come to karnal just to lodge this false fir, it has been argued on behalf of the complainant that the report of process server of acceptance of notice, issued on 4.8.2011, is forged. this is a report in the suit filed by father-in-law of the complainant for her eviction from the basement portion of the house in greater kailash. no application appears to have been made by the complainant to the court, seized of that suit, to the effect that report of process service regarding service of notice upon her is forged. it is not her case that she was proceeded against ex-parte in that case on account of the forged report of the process server and that she had to apply for setting aside the ex-parte proceedings in that matter. having come to the conclusion that the incident of march, 2009 cannot be believed, it does not remain to be a case where offence is partly committed in delhi and partly in karnal or that it being a continuing offence, continued to be committed in karnal. therefore, the ratio of sunita kumari kashyap's case (supra) does not stand attracted to the facts of this case. the facts of this case clearly attract the ratio of a decision of hon`ble supreme court of india in y. abraham ajith and ors.versus inspector of police, chennai and anr. 2004 (3) r.c.r.(criminal) 988 where the harassment to the wife by the husband was at crl. misc. not m-31193 o”9. .a place other than chennai and nothing had happened to the wife after she had shifted to chennai. holding that the offence was not continuing offence within the meaning of section 178 (2) cr.p.c., the chennai court was held to have no jurisdiction. in another case, harmanpreet singh ahluwalia versus state of punjab and others 2009 (2) r.c.r.(criminal) 956 decided by hon`ble supreme court of india, the parties were married at jalandhar and thereafter they were living in canada. the demand of dowry was made in canada but the fir was lodged at jalandhar. the fir was quashed on the ground, inter alia that larger part of the offence was committed in canada. in the case before me, whatever offence has been committed by the petitioners.the same has been committed in greater kailash area of new delhi and not in the area of karnal. so, the court at karnal has no jurisdiction in the matter. therefore, i accept the petition and quash fir no.653 dated 1.9.2011, registered at police station civil lines, karnal district karnal (annexure p8) for an offence punishable under sections 406, 498-a and 506 ipc along with all the subsequent proceedings arising out of the same, qua the petitioners.(vijender singh malik) judge november 19th, 2012 som
Judgment:

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1. .IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc.

not M-31193 of 2011 (O&M) Date of Decision : November 19th, 2012 Satish Kumar Malhotra and others ...Petitioners Versus State of Haryana and another ...Respondents CORAM : HON'BLE Mr.JUSTICE VIJENDER SINGH MALIK 1 Whether Reporters of local papers may be allowed to see the judgment?.

2.Whether to be referred to the Reporters or not?.

3.Whether the judgment should be reported in the Digest?.

Present Mr.R.S.Rai, Senior Advocate, with Mr.Gautam Dutt, Advocate, for the petitioneRs.Mr.Sagar Deswal, A.A.G.Haryana, for the State.

Mr.Parminder Singh, Advocate, for the complainant.

VIJENDER SINGH MALIK, J.

Satish Kumar Malhotra and three otheRs.the petitioners have brought this petition under the provisions of section 482 Cr.

P.C., for quashing of FIR No.653 dated 1.9.2011, registered at Police Station Civil Lines, Karnal, District Karnal (Annexure P8) for an offence punishable under sections 406, 498-A and 506 of Indian Penal Code along with all the subsequent proceedings arising out of the same being abuse of the process of the court.

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2. .Learned senior counsel for the petitioners has submitted that marriage between Darun Malhotra, respondent No.2 and Hari Om Malhotra was solemnized on 28.2.2008 at New Delhi.

According to him, the couple resided together at New Delhi.

According to him, the fiRs.FIR was lodged by Darun Malhotra on 23.6.2011 at Police Station Greater Kailash, South East District, New Delhi against her husband, father-in- law and mother-in-law for an offence punishable under sections 380 and 341 read with section 34 IPC.

According to him, this FIR, bearing No.79 dated 23.6.2011, is Annexure P/2 on the record.

He has further submitted that the allegations were that the aforesaid persons had stolen her belongings and the police recovered the goods and those goods were got released by the complainant on supardari.

Learned senior counsel for the petitioners has submitted that the second FIR, bearing No.80 dated 24.6.2011 was registered at the the same police station for an offence punishable under sections 354, 506 IPC in which she had levelled allegations against her father-in-law.

He has further submitted that the complainant is still in occupation of the basement portion of the house and for getting that portion vacated from the complainant, her father-in-law filed a suit for her eviction.

He has further submitted that in that civil suit, notice was issued to the complainant on 4.8.2011 which was served upon the complainant – respondent No.2 at that very basement portion on 29.8.2011 in Greater Kailash.

Learned senior counsel for the petitioners has further submitted that the present FIR, bearing No.653 has been got registered by the complainant on 1.9.2011 at Karnal.

According to him, a petition Crl.

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3. .under the Protection of Women from Domestic Violence Act, 2005 and divorce petition have also been filed at Delhi.

According to learned senior counsel for the petitioneRs.on 29.8.2011, the complainant was living in Delhi.

According to him, she came to Karnal just for registration of the FIR and returned to Delhi soon thereafter.

According to him, she is still occupying the basement portion of the house.

According to him, none of the petitioners either visited Karnal with her to commit any act which may attract the offence for which the present FIR has been lodged.

According to him, there was no territorial jurisdiction at Karnal for lodging this FIR because the cause of action, if any, had arisen at Delhi and nowhere else.

He has further submitted that the incident of 2009 which is mentioned in the FIR is concocted.

According to him, had there been any such incident, it would have found mention in the earlier two or either of the two FIRs .

According to him, the absence of this allegation in the earlier two FIRs shows that no such incident had taken place.

He has, thus, submitted that the FIR is liable to be quashed on the ground of lack of jurisdiction at Karnal.

Learned State counsel has submitted, on the other hand, that the offence reported in FIR No.653 dated 1.9.2011 is a continuing offence.

He drew my attention to the last five lines of page No.86 of the FIR (Annexure P8) and has submitted that this act has been committed by the petitioners at Karnal and this gives cause of action to the complainant to lodge the FIR at Karnal.

Learned counsel for the complainant has submitted on the other hand that the complainant gave birth to a female child on Crl.

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4. .19.12.2008.

According to him, father-in-law of the complainant disinherited his son on 15.6.2010.

He has further submitted that the report of process server dated 29.8.2011 is forged one.

He has further submitted that the petitioner is not living at Karnal because her father-in- law had withdrawn all the amenities from the basement portion of the house.

According to him, the offence being continuing one and having been committed at Delhi as well as at Karnal, police station at Karnal had the jurisdiction to register a case on these facts.

In this regard, he drew my attention to a case reported as Sunita Kumari Kashyap versus State of Bihar and another 2011(3) R.C.R.(Criminal) 512, where it is laid down as under :-

“11. We have already adverted to the details made by the appellant in the complaint.

In view of the specific assertion by the appellant-wife about the ill-treatment and cruelty at the hands of the husband and his relatives at Ranchi and of the fact that because of their action, she was taken to her parental home at Gaya by her husband with a threat of dire consequences for not fulfilling their demand of dowry, we hold that in view of Sections 178 and 179 of the Code, the offence in this case was a continuing one having been committed in more local areas and one of the local areas being Gaya, the learned Magistrate at Gaya has jurisdiction to proceed with the criminal case instituted therein.

In other words, the offence was a continuing one and the episode at Gaya was only a consequence of continuing offence of harassment of illtreatment meted out to the complainant, clause (c) of Section 178 is attracted.

Further, from the allegations in the complaint, it appears to us that it is a continuing offence of illtreatment and humiliation meted out to the appellant in the hands of all the accused persons and in such continuing offence, on some Crl.

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5. .occasion all had taken part and on other occasion one of the accused, namely, husband had taken part, therefore, undoubtedly clause (c) of Section 178 of the Code is clearly attracted.”

He has also placed reliance upon a Single Bench decision of Hon`ble Rajasthan High Court (Jaipur Bench) in Gulshan Kapoor and others versus State of Rajasthan and another 2012 (1) R.C.R.(Criminal) 38 where the decision in Sunita Kumari Kashyap's case had been followed.

Learned counsel for the complainant has further submitted that the case is still at the stage of investigation and delay in investigation is due to the orders passed by this Court.

Annexure P8 is the copy of FIR No.653 dated 01.9.2011, registered at Police Station Civil Lines, Karnal District Karnal.

There is no dispute between the parties that the complainant and her husband have cohabited at New Delhi.

It is also not a fact in dispute that the marriage was solemnized at New Delhi.

The question precisely is as to whether any offence has been committed at Karnal which can either bring the case within the purview of section 178 (b) or (c) Cr.P.C.Under section 178(b) if an offence is committed partly in one local area and partly in another, it may be enquired into or tried by a court having jurisdiction over any of such local areas.

Under section 178 (c) Cr.P.C.if the offence is continuing one and continues to be committed in more local areas than one, still it may be enquired into or tried by a court having jurisdiction over any of such local areas.

Therefore, if it is a case where the offence reported is partly committed in Crl.

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6. .New Delhi and partly in Karnal or it being continuing offence continued to be committed in more than one local areas, one of those being Karnal, the same could be enquired into or tried by a court at Karnal.

Para No.18 of the FIR contained the allegations regarding the incident of March, 2009 which is alleged to have been an offence committed in the area of Karnal.

It is in the following terms:- “18.

That in the month of March, 2009 the accused persons went to Pehowa on the death of cousin of accused No.2 Satish Malhotra and after returning from Pehowa all the accused persons stayed at Karnal at the house of the parents of the complainant and they stated that they have given the flat and cash in FDR to her daughter accused No.4 and also raised the demand from the parents of the complainant to give a flat in the shape of dowry but the father of the complainant shown his inability to give flat in a dowry to the accused persons and thereafter the accused persons again started harassing the complainant by taunting, nagging etc.”

Perusal of this part of the FIR would confront one with the question as to whether it can be believed to have happened to the complainant in this manner.

Accused persons are said to have gone to Pehowa on the death of cousin of accused No.2, Satish Malhotra.

While returning from Pehowa, they stayed at Karnal at the house of the parents of the complainant.

They had stated that they had given the flat and cash in the shape of F.D.R.to their daughter i.e., accused No.4 and also raised the demand upon the parents of the complainant to give a flat in the shape of Crl.

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7. .dowry and that the father of the complainant expressed his inability to give flat by way of dowry and thereafter the accused persons again started harassing the complainant by taunting, nagging etc.It could be believed that the accused while returning from Pehowa could stay at the parental home of the complainant.

However, if it is to be believed that they told the parents of the complainant that they had given a flat and cash in the shape of F.D.R.to accused No.4, Dr.

Manisha Verma, accused No.4 (petitioner No.4 here) can never be a party to this statement.

It can also be believed that her father could express his inability to give a flat by way of dowry.

However, on such a visit, which was on the way to Delhi from Pehowa, harassing by way of taunting, nagging etc.cannot be believed.

Such a conduct of taunting, nagging, etc.on the part of the petitioners could be believed if their visit of Karnal was for a number of days.

The complainant had lodged an FIR on 23.6.2011 bearing No.79 for an offence punishable under sections 380 and 341 read with section 34 IPC against her husband, father-in-law and mother-in-law levelling allegations of theft against them.

She lodged another FIR No.80 dated 24.5.2011 against her father-in- law for an offence punishable under sections 354, 506 IPC.

If any such incident had taken place in March, 2009, she could be expected to narrate the same in the said FIRs and the offence under section 498-A etc.could also have been added in those FIRs.The fact that no whisper is there about this incident in the aforesaid two FIRs would clearly show that this allegation is just concocted.

Another allegation is there in the FIR where it is said that after Crl.

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8. .birth of the female child to the complainant, she came to Karnal and when she was being taken back, her in-laws abused her at the moment they were entering her matrimonial house.

It shows that the said abusing had taken place at Delhi.

To repel the submission that the complainant had been living at Delhi all the times and that she had come to Karnal just to lodge this false FIR, it has been argued on behalf of the complainant that the report of process server of acceptance of notice, issued on 4.8.2011, is forged.

This is a report in the suit filed by father-in-law of the complainant for her eviction from the basement portion of the house in Greater Kailash.

No application appears to have been made by the complainant to the court, seized of that suit, to the effect that report of process service regarding service of notice upon her is forged.

It is not her case that she was proceeded against ex-parte in that case on account of the forged report of the process server and that she had to apply for setting aside the ex-parte proceedings in that matter.

Having come to the conclusion that the incident of March, 2009 cannot be believed, it does not remain to be a case where offence is partly committed in Delhi and partly in Karnal or that it being a continuing offence, continued to be committed in Karnal.

Therefore, the ratio of Sunita Kumari Kashyap's case (supra) does not stand attracted to the facts of this case.

The facts of this case clearly attract the ratio of a decision of Hon`ble Supreme Court of India in Y.

Abraham Ajith and ORS.versus Inspector of Police, Chennai and anr.

2004 (3) R.C.R.(Criminal) 988 where the harassment to the wife by the husband was at Crl.

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9. .a place other than Chennai and nothing had happened to the wife after she had shifted to Chennai.

Holding that the offence was not continuing offence within the meaning of section 178 (2) Cr.P.C., the Chennai court was held to have no jurisdiction.

In another case, Harmanpreet Singh Ahluwalia versus State of Punjab and others 2009 (2) R.C.R.(Criminal) 956 decided by Hon`ble Supreme Court of India, the parties were married at Jalandhar and thereafter they were living in Canada.

The demand of dowry was made in Canada but the FIR was lodged at Jalandhar.

The FIR was quashed on the ground, inter alia that larger part of the offence was committed in Canada.

In the case before me, whatever offence has been committed by the petitioneRs.the same has been committed in Greater Kailash area of New Delhi and not in the area of Karnal.

So, the court at Karnal has no jurisdiction in the matter.

Therefore, I accept the petition and quash FIR No.653 dated 1.9.2011, registered at Police Station Civil Lines, Karnal District Karnal (Annexure P8) for an offence punishable under sections 406, 498-A and 506 IPC along with all the subsequent proceedings arising out of the same, qua the petitioneRs.(VIJENDER SINGH MALIK) JUDGE November 19th, 2012 som