Sunday 3 July 2022

Whether Offence under S 498A of IPC committed beyond Indian Territory by Indian Citizens can be tried in India?

The Court also finds that under Section 188 and 189

Cr.P.C. the offences alleged to have been committed beyond the

territory of India by an Indian citizen could be investigated into

and also tried in India.

 ALLAHABAD HIGH COURT

Case :- CRIMINAL MISC. WRIT PETITION No. - 7081 of

2021

Petitioner :- Shri Abhishek Shukla

Respondent :- State Of U P And 3 Others

Coram:  Hon'ble Siddhartha Varma, J. Hon'ble Subhash Chandra Sharma, J.

Order Date :- 10.06.2022

These writ petitions have been filed with a prayer that the

First Information Report dated 14.4.2021 under sections 498-A,

323, 506, 406, 342, 313, 351 I.P.C. and sections 3/4 of Dowry

Prohibition Act be quashed. A further prayer has been made that

the petitioners in pursuance of the aforesaid First Information

Report be not arrested.

For the decision of controversy, the facts mentioned in

Criminal Misc. Writ Petition No. 7081 of 2021 are being taken

into consideration.

A perusal of the First Information Report shows that the

respondent no.4 had married the petitioner on 6.5.2011 at Greater

Noida, Uttar Pradesh. This marriage was also got registered as

per law. It has been alleged in the First Information Report that

since the inception of the marriage, the petitioner used to

forcefully take-away the salaries of respondent no.4 and in fact he

had forced the respondent no.4 to transfer almost Rs.2,00,000/- to

clear off his educational loans. He had further forced the

respondent no.4 to give Rs.80,000/- to pay off some other loan. It

has been alleged that the petitioner regularly used to transfer

various amounts from the accounts of respondent no.4 to his

accounts to pursue his higher studies in BITS Pilani. Respondent

no.4 has stated that the petitioner had forced her to leave her job

in India and to go to the USA on an H4 visa and had made her to

work in the USA online despite the fact that the visa did not

permit her to do so. It has been alleged in the First Information

Report that despite the fact that respondent no.4 desired to pursue

her higher studies in Pepperdine University, the petitioner had

restrained her from studying. During their stay as husband and

wife in the USA, in June, 2016, the respondent no.4 had got

pregnant but because of the fact that the petitioner had pushed

her, she had fallen-down and resultantly a miscarriage had taken

place. Subsequently, in 2017, the respondent no.4 again got

pregnant but during the pregnancy, it has been alleged, the

petitioner had never cared for her and, therefore, from May 2017

to August 2017, the respondent no.4 stayed in India. It has been

alleged that despite the fact that the husband did not care for the

respondent no.4, she went back to USA to save her marriage for

the sake of her child which she was bearing. It has also been

stated that despite requests from the in-laws that they may return

her Stridhan, the same was not returned to her. Subsequently,

when the respondent no.4 had gone back to USA and the child,

was born, the petitioner, it has been alleged, did not take care of

the respondent no.4 and did not even take any paternity leave to

take care of the child. On top of that it has been alleged that the

parents of the petitioner also came to USA and the respondent

no.4 was required to conduct the household chores. In June 2018,

the opposite party no.4 flew down to India once again with her

son and in the following July, the petitioner sent her a notice for

divorce. Thereafter, to save the marriage she again flew back in

August 2018 to enquire why all the cruelty was being perpetrated.

It has been alleged that the petitioner had throughout been

ignoring the respondent no.4. In the USA the petitioner had

cancelled all the credit cards which were there with the

respondent no.4. The respondent no. 4 and her son were made to

live in a state of penury without any medical support. Despite the

fact the parents of the respondent no. 4 had sent money, she was

not allowed to pursue her studies. At times, she was closed in the

bath room and was beaten. When the respondent no.4 had desired

the admission of the young child in a day-care centre, the

petitioner had denied the same. It has been alleged in the First

Information Report that when the respondent no.4 on 15.3.2019

had fallen ill, she had to herself go to the hospital and in the

hospital when there was no money with her, the emergency

contact people in USA suggested her that she should go back to

India. It has been alleged that after that she came back to India

where she filed a complaint under the Domestic Violence Act. It

has been alleged that behind the back of respondent no.4, the

petitioner had also filed a case for divorce. When the respondent

no.4 was in India, on 26.2.2021, two persons had come to the

house of respondent no.4 and had threatened her and her parents

to withdraw the cases otherwise they would kill both, the parents

and the son of respondent no.4.

Challenging the instant First Information Report, the

learned counsel for the petitioner Sri Prabhat Jauhar assisted by

Sri Prakhar Saran Srivastava had argued that despite the fact that

respondent no.4 had got admission in the USA, she never studied.

He has submitted that on 14.1.2016, the petitioner had also

purchased a house for the respondent no.4 in NOIDA from his

own pocket. Learned counsel for the petitioner argued that when

respondent no.4 had urged for the admission of the child in a daycare

centre and when there was some dispute regarding that, the

respondent no.4 had approached the US Police which had found

that there was no merit in the complaint. This had happened on

15.3.2019 and the respondent no.4 had come back to India on

19.3.2019. Aggrieved by the actions of the respondent no.4, the

petitioner had sent a legal notice through his attorney to

respondent no.4 to return the minor child and also he had

informed the respondent no.4 about the contemplated divorce

proceedings in the USA. Learned counsel for the petitioner has

also stated that after the divorce petition was filed by the

petitioner in USA on 4.3.2021, the respondent no.4, as a counterblast

to the filing of the divorce case in the US Court, filed the

instant First Information Report on 14.4.2021. He submits that

the order for the custody of the son was passed on 18.12.2020 and

that was also a reason for the F.I.R. In the meantime, it is alleged

that the petitioner had filed a Habeas Corpus Petition for the

custody of the minor child before the Allahabad High Court

which was still pending. Learned counsel for the petitioner has

also stated that the respondent no.4 had filed a Special Leave

Petition against the order of issuance of notice in the Habeas

Corpus Petition and the Supreme Court had also tried

reconciliation but that had failed and, therefore, the Habeas

Corpus Petition in the High Court was to be heard. Learned

counsel for the petitioner has submitted that if the First

Information Report is perused, then it becomes abundantly clear

that all the incidents which had been complained of had occurred

in the USA and, therefore, the respondent no.4 had no cause of

action in India. Learned counsel for the petitioner has also

submitted that the ingredients of Section 498A I.P.C. were also

not present in the First Information Report which was lodged by

the respondent no.4. Learned counsel for the petitioner has stated

that the cruelty of the husband or the relatives of the husband

should have been to the extent that it would have driven the

respondent no.4 to a state when she would have committed

suicide. If that had not happened then the cruelty should have

caused a grave injury or a danger to the life, limb or health

(whether mental or physical) to the respondent No.4. In the

absence of the necessary ingredients as were to be found under

section 498-A I.P.C., the First Information Report was required to

be quashed. Learned counsel for the petitioner has further

submitted that the respondent no.4 had hardly stayed with her inlaws

and, therefore, it could not be said that they had subjected

her to any cruelty or torture. In this regard, learned counsel for

the petitioner has relied upon the decisions of the Supreme Court

in Ruchi Majoo vs. Sanjeev Majoo : (2011) 6 SCC 479; Vipin

Jaiswal (A-1) vs. State of Andhra Pradesh : (2013) 3 SCC 684;

Virala Bharath Kumar & Anr. vs. State of Telangana &

Anr. : (2017) 9 SCC 413 and Kamlesh Ghanshyam Lohia &

Ors. vs. State of Maharashtra, Through the Commissioner of

Police & Ors. : (2019) 4 RCR (Cri.) 169 and has submitted that

if the necessary ingredients for constituting an offence under

section 498-A I.P.C. and other accompanying sections were not

present, the First Information Report ought to be quashed.

Learned counsel for the petitioner further stated that the

lodging of the F.I.R. was an abuse of process of law and if it was

established that there was no cruelty then the F.I.R. should be

quashed.

Learned counsel for the petitioner has relied upon a reply

of the respondent no. 4 of October 2019 which was sent to the

notice which the petitioner had sent on 26.3.2019 and has stated

that in the reply the respondent no. 4 had stated that if the

petitioner filed a written apology and took the responsibility of

his wife and son and provided a maintenance of $2000 per month

for the basic sustenance and maintenance for his wife and son in

India then she was ready for a settlement. He also relied upon that

portion of the reply wherein it had been stated that if the

petitioner came down to India and took his wife and son to USA

then the respondent no. 4 was ready to condone his cruelty and

submitted that when she was herself ready for rapprochement

then no question of cruelty etc. arose. Learned counsel for the

petitioner has also stated that for all the allegations which the

respondent no. 4 had made in the first information report, namely,

the fact that the petitioner was preventing the respondent no. 4 for

pursuing her studies; maltreatment at USA; the abortion which

had taken place in the year 2016; the maltreatment at his hands

after the child was born and the maltreatment after the petitioner's

parents had gone to USA no report to the Police in USA was

made and, therefore, the allegations made in the first information

report were baseless and an abuse of the process of law. He

further stated that only to wreak vengeance and with malafide

intentions the first information report was lodged. In this regard,

he relied upon a judgement of the Supreme Court reported in

2019 (15) SCC 357 (Rashmi Chopra vs. State of U.P.) and has

submitted that if the FIR was a counter-blast to the divorce

petition which the petitioner had filed and if the ingredients of the

various sections under which the FIR was filed were not fulfilled

then the FIR ought to be quashed.

Learned counsel further relied upon a judgement of the

Supreme Court reported in 2009 (7) SCC 712 (Harmanpreet

Singh Ahluwalia and others vs. State of Punjab and others)

and has submitted that if after the investigation was concluded

and yet a charge sheet was filed against the accused then the same

ought be quashed. He also submits that on the basis of what had

been said in the judgement reported in 2009 (7) SCC 712 (supra)

in paragraph 32 that if from any particular fact of the case it was

found that the FIR had been made with an ulterior motive to

harass the accused then the continuance of criminal proceedings

against the accused would amount to abuse of the process of the

court.

Learned counsel for the petitioner further argued that since

most of the offences had allegedly occurred in the USA the

petitioner could not be investigated against and could not be tried

in India as all the evidence were available only in the USA.

Learned counsel for the petitioner in the end submitted that

there was a Look Out Notice and there was also a non-bailable

warrant issued against the petitioner and if the High Court did not

protect the interest of the petitioner then the petitioners interest

would be greatly jeopardized.

In reply, Sri Ashish Deep Verma assisted by Sri Azad

Khan learned counsel appearing for respondent no.4 has

submitted that if on the perusal of the First Information Report, a

cognizable offence was disclosed, then in a writ petition, the

genuineness or the credibility of the information would not be

relevant. Learned counsel for the respondent no.4 has relied upon

the decisions of the Supreme Court in State of Haryana & Ors.

vs. Bhajan Lal & Ors. : 1992 Supp (1) SCC 335; State of

Kerela & Ors. O.C. Kuttan & Ors. : (1999) 2 SCC 651; State

of Telangana vs. Habib Abdullah Jeelani & Ors. : (2017) 2

SCC 779; P. Chidambaram vs. Director of Enforcement :

(2019) 9 SCC 24 and Neeharika Infrastructure Pvt. Ltd. vs.

State of Maharashtra & Ors. : 2021 SCC Online SC 315 and

has submitted that the High Court should not interfere in the

investigation which was to be done by the State as that would

result in miscarriage of justice. From the judgement of the

Supreme Court in Neeharika Infrastructure Pvt. Ltd. (supra)

learned counsel for the respondent no.4 has stated that the

following principles of law emerged, which are as follows :-

"From the aforesaid decisions of this Court,

right from the decision of the Privy Council in

the case of Khawaja Nazir Ahmad (supra), the

following principles of law emerge:

i) Police has the statutory right and duty under

the relevant provisions of the Code of


Criminal Procedure contained in Chapter XIV

of the Code to investigate into cognizable

offences;

ii) Courts would not thwart any investigation

into the cognizable offences;

iii) However, in cases where no cognizable

offence or offence of any kind is disclosed in

the first information report the Court will not

permit an investigation to go on;

iv) The power of quashing should be exercised

sparingly with circumspection, in the ‘rarest of

rare cases’. (The rarest of rare cases standard

in its application for quashing under Section

482 Cr.P.C. is not to be confused with the

norm which has been formulated in the

context of the death penalty, as explained

previously by this Court);

v) While examining an FIR/complaint,

quashing of which is sought, the court cannot

embark upon an enquiry as to the reliability or

genuineness or otherwise of the allegations

made in the FIR/complaint;

vi) Criminal proceedings ought not to be

scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an

exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from

usurping the jurisdiction of the police, since

the two organs of the State operate in two

specific spheres of activities. The inherent

power of the court is, however, recognised to

secure the ends of justice or prevent the above

of the process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the

police are complementary, not overlapping;

x) Save in exceptional cases where noninterference

would result in miscarriage of

justice, the Court and the judicial process

should not interfere at the stage of

investigation of offences;

xi) Extraordinary and inherent powers of the

Court do not confer an arbitrary jurisdiction

on the Court to act according to its whims or

caprice;

xii) The first information report is not an

encyclopaedia which must disclose all facts

and details relating to the offence reported.

Therefore, when the investigation by the

police is in progress, the court should not go

into the merits of the allegations in the FIR.

Police must be permitted to complete the

investigation. It would be premature to

pronounce the conclusion based on hazy facts

that the complaint/FIR does not deserve to be

investigated or that it amounts to abuse of

process of law. During or after investigation,

if the investigating officer finds that there is

no substance in the application made by the

complainant, the investigating officer may file

an appropriate report/summary before the

learned Magistrate which may be considered

by the learned Magistrate in accordance with

the known procedure;

xiii) The power under Section 482 Cr.P.C. is

very wide, but conferment of wide power

requires the court to be cautious. It casts an

onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it

thinks fit, regard being had to the parameters

of quashing and the self-restraint imposed by

law, more particularly the parameters laid

down by this Court in the cases of R.P. Kapur

(supra) and Bhajan Lal (supra), has the

jurisdiction to quash the FIR/complaint; and

xv) When a prayer for quashing the FIR is

made by the alleged accused, the court when it

exercises the power under Section 482

Cr.P.C., only has to consider whether or not

the allegations in the FIR disclose the

commission of a cognizable offence and is not

required to consider on merits whether the

allegations make out a cognizable offence or

not and the court has to permit the

investigating agency/police to investigate the

allegations in the FIR."

Learned counsel for the respondent no. 4 further states that even

on facts the petitioner could not be exonerated of the charges of cruelty

as he had though purchased the property in question in the name of his

wife, he had yet to pay 40% of the cost of it and because he had

stopped giving the various instalments the builder was after the life of

the respondent no. 4 to pay remaining installments. Learned counsel

for the respondent no. 4 also submitted that the offences which had

been alleged against the petitioner were continuous in nature. The

offences of cruelty had started off right from the date the couple had

got married. The FIR was a result of all that had happened in the past

so many years and, therefore, the petitioner could not get away by

saying that there was no particular incident of cruelty.

Learned counsel for the respondent no. 4 further submitted that

cruelty is a term which has a different meaning for every individual.

For arriving at a conclusion as to whether there was cruelty against a

particular individual all surrounding circumstances had to be looked

into. In the instant case, he submits that the respondent no. 4 came

from a very well-to-do family and was a well educated lady and,

therefore, she expected a treatment which was of a nature which would

go with her upbringing. He submits that when proper treatment was

not meted out to her then it was definitely cruelty. Learned counsel for

the respondent no. 4 has also submitted that not only the petitioner had

filed the divorce petition in the USA but he had also filed a divorce

suit in August 2019 in India (This fact has not been controverted by

the learned counsel for the petitioner).

Learned counsel submitted that the reply which the respondent

no. 4 had sent in October 2019 and the Email which she had sent

showed how disgruntled she was with her situation and that she was in

fact being cruelly deprived of her maintenance.

Learned counsel for the respondent no. 4 further submitted that

under Section 498-A of the IPC, the cruelty had not only to be physical

torture or atrocity. There could be a mental and emotional injury while

physical injury was not present, which was a latent form of cruelty but

was equally serious in the terms of the provisions of statutes and this

cruelty would also embrace the attributes of cruelty in terms of Section

498-A of the IPC.

Learned counsel for the respondent no.4 also relied upon the

provisions of Section 188 and 189 of the Cr.P.C. which are being

reproduced here as under:-

"188. Offence committed outside India. When an offence is

committed outside India-

(a) by a citizen of India, whether on the high seas or 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:

Provided 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."

189. Receipt of evidence relating to offences committed

outside India. When any offence alleged to have been

committed in a territory outside India is being inquired into or

tried under the provisions of section 188, the Central

Government may, if it thinks fit, direct that copies of

depositions made or exhibits produced before a judicial officer

in or for that territory or before a diplomatic or consular

representative of India in or for that territory shall be received

as evidence by the Court holding such inquiry or trial in any

case in which such Court might issue a commission for taking

evidence as to the matters to which such depositions or exhibits

relate.

He submits that the petitioner could be tried in India even for

the offences which he had committed in the USA. He submits that for

investigation, in fact, no sanction of the Central Government was also

required. For this purpose, he relied upon 2011 (9) SCC 527 (Thota

Venkateshwarlu vs. State of Andhra Pradesh through Principal

Secretary and another). So far as the evidence was concerned,

learned counsel for the respondent no. 4 submitted that under Section

189 Cr.P.C. all the evidence could be obtained by the investigating

agency even from the USA.

Learned counsel for the respondent no. 4 replying to the

arguments of the petitioner that a protection was required from the

High Court because the look out notice had been issued against the

petitioner and that a non-bailable warrant had been issued, submitted

that the petitioner had throughout avoided investigation vis-a-vis the

FIR which was lodged on 14.4.2021 and, therefore, no indulgence be

granted to the petitioner. He further submits that if the offences were

cognizable in nature the FIR could not be quashed and, therefore, the

prayer for a protection could not be granted to the petitioner.

Learned counsel for the respondent no. 4 thus submitted

that the case could very well be looked into by the police as also

by the Courts at Gautam Budh Nagar under the provisions of

Section 188 Cr.P.C. He also relied upon the decision of the

Supreme Court in Om Hemrajani vs. State of U.P. & Ors. :

AIR 2005 SC 392 and submitted that the offence which were

committed outside India could be very much tried in India.

Learned AGA Sri Arunendra Kumar Singh also submitted

that the FIR could not be tinkered with lightly. He relied upon the

judgements of the Supreme Court which had been relied upon by

the learned counsel for the respondent no. 4.

Learned counsel for the State also submitted that the

offences alleged in the FIR were of a continuing nature and they

could not be taken lightly. Still further, learned AGA submitted

that most of the judgements which had been cited by the learned

counsel for the petitioner were for the quashing of the charge

sheet.

Having heard learned counsel for the parties, the Court

finds from the perusal of the First Information Report that there

are allegations which reveal the commission of a cognizable

offence. Respondent No. 4 has alleged various kinds of cruelties

which had led her to various illnesses. The respondent no. 4 had

also alleged that there was a miscarriage which had resulted

because of the fact that the petitioner had pushed her. Still further

the Court finds that the respondent no. 4 was being deprived of

her financial resources and that had driven her to come back to

India and in India also, the Court finds, there was a threat made

vis-a-vis the respondent no. 4 and her parents on 26.2.2021 when

two persons had reached her house at 5.30 PM and had threatened

her with dire consequences. The arguments of the learned counsel

for the petitioner that the FIR was a counter-blast to the notice for

divorce and that the FIR itself was a malicious persecution of the

petitioner do not hold any water.

Under such circumstances, when the First Information

Report definitely discloses the commission of cognizable

offences the writ petition does not warrant any interference.

The Court also finds that under Section 188 and 189

Cr.P.C. the offences alleged to have been committed beyond the

territory of India by an Indian citizen could be investigated into

and also tried in India.

Both the writ petitions are, accordingly, dismissed.

Dismissal of the Criminal Misc. Writ Petition No. 7081 of

2021 and Criminal Misc. Writ Petition No. 7082 of 2021 would

not in any manner come in the way of the petitioner in availing

the remedies which might be available under the Cr.P.C.

Order Date :- 10.06.2022


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