Criminal Misc. No. 71487-M of 2006 -1-
In the High Court of Punjab & Haryana at Chandigarh
******
Criminal Misc. No. 71487-M of 2006
Date of Decision: 01.7.2008
Dr. Atul Bansal …. Petitioner
vs
The State of Haryana and another …. Respondents
Before: Hon’ble Mr. Justice Rajesh Bindal
Present: Shri Ashok Aggarwal, Sr. Advocate, with
Shri Gaurav Hooda, Shri Alok Jain and
Ms. Preeti Khanna, Advocates, for the petitioner.
Shri Navneet Singh, Assistant Advocate General, Haryana,
for respondent no. 1.
Shri Akshay Bhan, Advocate, for respondent No. 2.
***
Rajesh Bindal J.
1. The prayer in the present petition is for quashing of FIR No.111
dated 12.03.2005, registered under Sections 406, 498-A, 376(2G), 506 read
with Section 34 of the Indian Penal Code, at Police Station City, Rohtak,
against the petitioner and his other family members. The quashing is prayed
for only by the petitioner, the husband of respondent No.2/complainant.
2. From the facts on the record, it transpires that the main parties
to the dispute i.e the petitioner as well as respondent No.2/complainant after
getting a decree of divorce in England are residing in England and the
present litigation is being fought by their family members residing in India,
as their attorneys.
3. Briefly, the facts as are evident from the pleadings on record
are that the marriage of the petitioner was settled with respondent No.2, in
response to an advertisement on the Web site issued by respondent
No.2/complainant. At that time the respondent No.2 was a divorcee,
residing in England with Medical Management as her qualification. The
petitioner, who is doctor by profession is also settled in England. One of the
close relative of respondent No.2/complainant, is also residing in England
and with his intervention, the marriage was settled. Initial ceremony was
Criminal Misc. No. 71487-M of 2006 -2-
held in England on February 14, 2004. Thereafter, as per the allegations, the
marriage was solemnized at Rohtak on June 02, 2004. On July 02, 2004, the
couple left for England and respondent No.2/complainant came back to
India on March 03, 2005. The first information report came to be recorded
with various allegations including harassment, demand of dowry and even
the allegation of sexual harassment against the father of the petitioner on
March 12, 2005. Thereafter, respondent No.2/complainant again left for
England and is presently residing there. Both the parties are fighting present
litigation in India in various courts through their attorneys. The prayer in
the present petition is for quashing of FIR and all subsequent proceedings
arising therefrom on behalf of the petitioner/ husband.
4. Learned counsel for the petitioner raised two fold arguments,
namely-that the courts in India do not have the jurisdiction to entertain and
try the dispute, as no cause of action as alleged in the FIR, has arisen within
the territorial jurisdiction of the courts in India; secondly- even if for
arguments sake it is considered that the courts in India have the jurisdiction
still from a plain reading of the contents of the FIR, no offence is made out
against the petitioner.
5. To buttress the contention, the learned senior counsel submitted
that admittedly at the time of engagement both the parties were living in
England, the Sagun ceremony was solemnized in England. It was only a
small get together which was held at Rohtak. Though the marriage is stated
to be solemnized at Rohtak on June 2, 2004, however, the parties got
married again in England on October 27, 2004 showing themselves to be
bachelors. A copy of an entry of marriage pursuant to the Marriage Act,
1949 (In England), has been placed on the record as Annexure P-3. A
perusal of the certificate, Annexure P-3, shows that the date of marriage was
mentioned as July 28, 2004. Admittedly, on that date, the parties were not in
India as they had already left for England on July 04, 2004. Further, it is
submitted that the fact that respondent No.2/ complainant, was already a
divorcee, is evident of the fact that that she could not settle herself even in
her first matrimonial home. From the allegations, all that can be inferred is
that there were temperamental differences between the parties because of
which they could not settle in the matrimonial home. Even in the FIR, there
are no specific allegations against the petitioner. The same are quite general
Criminal Misc. No. 71487-M of 2006 -3-
in nature. As is evident, the FIR has been got drafted from a legally trained
mind, levelling allegations against each of the family members though
vague in nature.
6. Further, it is submitted that in fact in a divorce petition filed by
the complainant/respondent No.2, in England on August 08, 2005, a decree
of divorce has already been passed by the High Court of Justice, Principal
Registry of the Family Division on July 27, 2006 in terms of Section 42 of
the Matrimonial and Family Proceedings Act, 1984 (England). By virtue of
the order dated July 27, 2006 (Annexure P-11), the preliminary decree of
divorce passed on February 9, 2006 was made absolute and the marriage
was dissolved. Inspite of the fact that the marriage between the parties had
already been dissolved, still the prosecution is sought to be continued which
is only with a view to harass the petitioner and his other family members.
7. Still further, the submission is that the falsification of the stand
taken by the respondent no.2/complainant, in the FIR is evident from the
fact that there are contradictions in the statement made by her at various
stages, where she has tried to improve the allegations. Further, respondent
No.2 is even guilty of concealment of facts in court in England. At the time
of filing of divorce petition it was specifically mentioned by her that there
are no proceedings continuing in any country outside England in respect of
the marriage between the parties. This statement was made at the time of
filing of the petition for divorce on August 08, 2005. In addition to this, it
was mentioned in the divorce petition that the marriage between the parties
was solemnized on July 28, 2004 in England, whereas prior to the date of
filing of petition for divorce in England, respondent No.2/complainant, had
already got the impugned FIR registered against the petitioner and his
family members on March 12, 2005. And as per allegations in the FIR the
marriage was solemnised at Rohtak on June 2, 2004.
8. In fact, respondent No.2 is sailing in two boats at the same
time. Firstly, on the basis of alleged marriage which was solemnized at
Rohtak on June 02, 2004, the impugned FIR was got registered against the
petitioner and his family members under various sections of the Indian
Penal Code, on March 12, 2005 whereas on the basis of marriage
solemnized in England on July 28, 2004, independent proceedings were
initiated in England where even divorce was also granted. Still further, the
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submission is that the vindictive attitude of the family is evident from the
conduct of respondent No.2/complainant who filed a complaint for
professional mis-conduct before the Professional Conduct Committee of the
General Medical Council, London, against the petitioner where she stated
that the complainant was married with the petitioner on June 24, 2004 and
thereafter she was being maltreated and there was demand of dowry as well.
However, on investigation by the General Medical Council, the material
furnished by respondent No.2/complainant, was not found to be sufficient
with regard to any professional misconduct on the part of the petitioner.
9. With a view to take the arguments to the logical end, it was
submitted that the entire dispute between the parties, after the filing of the
divorce petitioner by respondent No.2/complainant, in England was settled
by way of compromise arrived at between the parties in the presence of
respectable on September 11, 2005 (Annexure P-8) in which it was agreed
that all the cases between the parties shall be withdrawn and the parties will
move for divorce by mutual consent. The petitioner was to give a cheque of
pounds 16000 in London and a sum of Rs. 11,00,000/- at Sonipat. The
remaining dowry articles were stated to be with respondent
No.2/complainant or were lying deposited in the Police Station, which
respondent No.2/complainant was at liberty to take. However, even this
compromise was also not honoured by the complainant/ respondent No.2,
and the effort of the respondent No.2 is mainly to harass the petitioner and
his family members inspite of the fact that the parties have already
separated.
10. It is not disputed by the petitioner that a cheque of 16000
pounds was deposited by the uncle of respondent No.2 in the account of the
petitioner in England which money was not even touched by the petitioner
and is still lying there and number of times it was stated by the petitioner
that the same can be taken back by the respondent No.2.
11. Another self contradictory stand taken by respondent
No.2/complainant is regarding her visit to India. In the FIR, the statement is
that it was at the asking of the petitioner that respondent No.2 came to India
to live with his parents on March 03, 2005. However, in the complaint
before the General Medical Council, Anexure P-6, the statement was that in
the end of August 2004 the petitioner told the complainant that he had his
Criminal Misc. No. 71487-M of 2006 -5-
job in Birmingham for four weeks and was leaving for that place. When the
complainant did not come to know the whereabouts of her husband, on
inquiry from her in-laws (the parents of the petitioner), she came to know
that the petitioner was in India. It was in terms of this information that the
complainant went to India to sort out the differences.
12. Similar is the submission with regard to the allegations
regarding petitioner’s pressing respondent No.2/complainant to get her hair
cut and get them dye. In the divorce petition, it was mentioned that it was
around August 14, that the petitioner forced the complainant to cut her hair
and get the same coloured, whereas, in the supplementary statement
recorded before the police on June 22, 2005 it was stated that when the
parties were to go to London in July, 2004 immediately after the marriage,
the petitioner took the complainant to get her hair cut against her wish and
also get the same coloured with red and green. All these contradictions
clearly established that the story put up by respondent No.2/complainant, is
totally false, fabricated and concocted.
13. As far as the allegations regarding entrustment of dowry
articles and demand of dowry, against the petitioner is concerned, it is
submitted that Sagun ceremony was admittedly held in England. As far as
the marriage is concerned, there are two different stands. One is that the
marriage was solemnized on June 02, 2004 at Rohtak, whereas as per the
version of the complainant/ respondent No.2, the marriage was solemnized
in England on July 28, 2004. The alleged demand and deposit of a sum of
Pounds 16000 in the account of the petitioner also took place in England.,
Even the false and concocted allegations regarding harassment of the
complainant at the hands of the petitioner, are also in England. It is only a
bald allegation made in the first information report that a necklace worth Rs.
One Lakh was handed over to the petitioner at the time of marriage.
Otherwise no other dowry article was handed over to him. Even this
allegation in the FIR is patently false on the face of it, for the reason that the
petitioner was to do nothing with the diamond necklace as the same was to
be used and worn by respondent No.2/complainant, only. Reliance has been
placed upon Y.Abraham Ajith and others vs Inspector of Police Chennai
and another 2004(8) SCC 100, Anil Kumar vs Rita Kumari 1999(1) R.C.R.
(Criminal) 813, Anju Bala and others vs State of Punjab and another 2006
Criminal Misc. No. 71487-M of 2006 -6-
(3) RCR (Criminal) 191, B.S.Joshi and others vs State of Haryana and
another AIR 2003 SC 1386 and Sushil Kumar Sharma vs Union of India
and others 2005 (6) SCC 281.
14. In response to the contentions raised by the learned counsel for
the petitioner, learned counsel for the respondent no.2/complainant
submitted that the marriage was solemnized at Rohtak only and it was
merely got registered in England. He further submitted that there are
specific allegations against the petitioner in the FIR. When the matter is
under investigation, this court should not exercise its extra ordinary
jurisdiction to quash the FIR. For that reliance has been placed upon State
of Karnataka and another vs Pastor P.Raju 2006(3) RCR (Criminal) 859.
As part of cause of action had arisen within the jurisdiction of court at
Rohtak, the case set up by the petitioner that the FIR and all subsequent
proceedings against the petitioner are not liable to be quashed because of
lack of territorial jurisdiction, has no legs to stand. However, the facts stated
in the marriage certificate regarding the parties being bachelor on the date
when the marriage was solemnized in England and further the fact that the
allegations regarding maltreatment and demand of dowry against the
petitioner being in England after the parties had left India on July 04, 2004
and further the demand and deposit of 16000 pounds in England could not
be disputed as the same are borne out from the statements made by the
complainant herself at various stages. The only contention was regarding
handing over of Diamond Set worth Rs. one lakh to the petitioner at the
time of marriage. The prayer is for dismissal of the petition as no case for
quashing of FIR is made out.
15. The learned counsel for the State submitted that the petitioner
should not be heard on merits, as after the grant of pre-arrest bail, he left
India without permission.
16. Having heard learned counsel for the parties and perusing the
material on the record, I find this to be a fit case where this Court should
exercise its extra ordinary jurisdiction to come to the rescue of the petitioner
who is sought to be harassed in a proxy war by respondent No.2/
complainant. Admittedly before marriage, after marriage and even after a
decree of divorce was passed by the court of competent jurisdiction in
England, both the petitioner and respondent No.2/complainant are living in
Criminal Misc. No. 71487-M of 2006 -7-
England. It is only because the laws in India are more stringent and tilt in
favour of the women, the same are sought to be misused by respondent
No.2/ the complainant and his family members to settle the scores with the
petitioner and his family members. Respondent No.2 has even gone to the
extent of levelling allegation of rape against the father of the petitioner in
the FIR. Though in her statement before the Profession Conduct Committee
of the General Medical Council, it was stated that the father of the petitioner
had assaulted her. However as this issue is not under consideration before
this Court, in the present petition, the father of the petitioner being not the
petitioner before this Court, no opinion is being expressed thereon.
17. A plain reading of the FIR shows that the entire allegations run
only against the parents of the petitioner regarding demand of dowry before
the marriage. Admittedly, Shagun ceremony was solemnized in England on
February 14, 2004. After the bald allegation that the gold ornaments of the
complainant were entrusted to all the accused, specific allegations were
sought to be made that one Diamond Set worth Rs. One Lakh was entrusted
to the petitioner, whereas the others were entrusted to the parents in law and
sister in law. There is no reason as to why the gold ornaments belonging to
the complainant were entrusted to different persons in part. Still further the
only bald allegation is that the entire istri-dhan which was given at the time
of marriage was kept by the parents and sister of the petitioner, when the
petitioner along with the complainant left for England.
18. Further from the facts on record it is clear that in the case in
hand the complainant is indulging in forum hopping. It is not disputed that
marriage of the parties was solemnized at Rohtak on June 2, 2004.
Thereafter, again the marriage was solemnized in England on July 28, 2004.
When the parties could not settle in their matrimonial home, the respondent
no.2/complainant filed application for dissolution of marriage in the High
Court of Justice, Principal Registry of the Family Division, England, where
a decree of divorce was passed on July 7, 2006 and the marriage between
the parties was dissolved. When issue came regarding filing of complaint
against the petitioner and his family members, the provisions of IPC were
sought to be relied upon and impugned FIR was got registered at Rohtak on
March 12, 2005, stating that the marriage between the parties was
solemnized at Rohtak, whereas in the divorce petition filed in England, it
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was stated that the marriage between the parites was solemnized in England.
With a view to ensure that jurisdiction of the court in England is not ousted
in the divorce proceedings, respondent No.2/complainant even concealed
the factum of the impugned FIR already pending in India out of the
matrimonial dispute between the parties, in the petition filed for divorce in
England.
19. It is further evident that a compromise was arrived at between
the parties on September 11, 2005 which was reduced into writing
(Annexure P-8), however, as per the assertion of the petitioner the same was
resiled by the respondent no.2/complainant with an intention to harass the
petitioner. The contents of the compromise are extracted hereunder:-
“Today i.e. 11.9.2005, a Panchayat was convened
regarding the matrimonial dispute between the children
of Shri Mukesh Kumar and Shri Surinder Kumar at the
residence of Attar Singh and both the parties have
entered into a compromise. Both the parties will be
bound by the following conditions:-
1. The divorce will be given with the mutual
consent of boy and girl.
2. All the cases would be withdrawn.
3. The boy would give the cheque of Punds 16000
in London and would give Rs. 11,00,000/- in
Sonepat.
The remaining articles are with the girl and are
lying deposed in Police Station and the girl would get
the same.
Shri Bhagwan Dass and Shri Satpal Mor would
be responsible on behalf of party from Narwana and
Attar Singh would be responsible for the party of
Rohtak.”
20. In reply to para 11 of the petition where the averments
regarding the compromise have been made by the petitioner, the factum of
compromise was admitted. However, it was stated that it was the petitioner
who had failed to fulfill the conditions laid down in the compromise. For
that reason only the compromise could not be given effect to. Before this
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court, the definite stand of the petitioner was that he was always ready and
willing to adhere to the terms of the compromise and even still ready.
21. Other undisputed facts on record are that the parties have
already separated by way of a decree of divorce passed in England. Further
as is evident from the order passed by the learned Additional District Judge-
I, Rohtak, on March 3, 2005, the value of the dowry articles had already
been recovered from the complainant’s father-in-law after his arrest on
March 12, 2005. As regards 16000 Pounds deposited in the account of
petitioner by the uncle of the complainant is concerned, the stand of the
petitioner before this court throughout had been that he has not touched that
amount ever. The amount is still lying deposited in his account and he is
ready and willing to return the same to the complainant or her uncle at any
time. Even at the time of hearing of the present case also the same stand was
reiterated.
22. In view of the above discussion, in my opinion, the continuance
prosecution of the petitioner in the present case even after the matter was
compromised between the parties is nothing else but abuse of process of
law, especially in a case where the petitioner and his divorced wife are
living in England and only the present litigation is going on in India.
23. Accordingly, the impugned FIR No.111 dated 12.03.2005,
registered under Sections 406, 498-A, 376(2G), 506 read with Section 34 of
the Indian Penal Code, at Police Station City, Rohtak, and all subsequent
proceedings arising therefrom are quashed qua the petitioner. However, the
same shall be subject to the fulfillment of the conditions as laid down in
compromise/settlement (Annexure P-8), in terms of which the petitioner
was liable to return 16000 Pounds to the respondent no.2/complainant and
pay another sum of Rs.11 lacs at Sonepat to the parents of the respondent
no.2/complainant. The respondent no.2/complainant shall be entitled to get
the possession of dowry articles lying in the police custody in terms of the
compromise. Needful be done within a period of one month from the date of
receipt of certified copy of this order.
24. The petition is disposed of in the terms indicated above.
01.7.2008 (Rajesh Bindal) vs Judge