Nerella Chiranjeevi Arun Kumar vs The State Of Andhra Pradesh
2021 Latest Caselaw 1300 AP

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                                                                       CMR, J.
                                                          Crl. P.No.379 of 2020




     HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

                 Criminal Petition No.379 of 2020

ORDER:

This Criminal Petition under Section 482 Cr.P.C. is filed

seeking quash of F.I.R. in Crime No.54 of 2016 of Mahila Police

Station, Vijayawada, Krishna District.

2. Heard learned counsel for the petitioner and learned

Additional Public Prosecutor for the 1st respondent-State and

learned counsel for the 2nd respondent-de facto complainant.

3. The petitioner is accused No.1 in Crime No.54 of 2016 of

Mahila Police Station, Vijayawada, Krishna District. He is the

husband of the 2nd respondent, who is the de facto

complainant. The 2nd respondent lodged a report with the

Police alleging that her marriage with the petitioner was

solemnized on 04.06.2014 in Vijayawada. Thereafter, they

both lived together for a period of 15 days and after 15 days,

they left for America and they led happy conjugal life for a

period of 2 months in America. Whileso, she got pregnancy.

Thereafter, the petitioner and his parents and the sister of the

petitioner by name Sahithi harassed her both physically and

mentally. Some wild allegations viz the petitioner resorted to

unnatural sex with the de facto complainant by forcing her to

participate in such unnatural sex are also made in the report

lodged by her with the police. It is stated that after harassing

the de facto complainant physically and mentally, the

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petitioner brought her to India and left her at her parents'

house and went away. The said report was registered by the

police as a case in the above crime for the offences punishable

under Sections 377 and 498-A of IPC and Sections 3 and 6 of

the Dowry Prohibition Act. The said case is under

investigation.

4. Learned counsel for the petitioner would submit that the

Apex Court has struck down Section 377 IPC. Therefore, the

present criminal prosecution launched against the petitioner

for the offence punishable under Section 377 IPC is not

maintainable and the same is liable to be quashed.

5. As regards the offence punishable under Section 498-A

of IPC, his contention is two-fold. Firstly, it is contended that

the contents of the F.I.R. show that the alleged physical

harassment said to have been caused by the petitioner to the

de facto complainant took place in America and no such

incident of subjecting the de facto complainant to physical or

mental harassment in India has taken place. Therefore, he

would submit that the present case cannot be registered under

Section 498-A of IPC against the petitioner for the offence that

took place outside India i.e. in America. In support of his

contention, he relied on Section 188 Cr.P.C. He would then

contend that the allegations ascribed against the petitioner in

the F.I.R. are all absolutely false and the petitioner has been

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implicated in a false case. Therefore, on these grounds, he

would pray to quash the F.I.R. lodged against the petitioner.

6. As regards the offence under Section 377 IPC is

concerned, learned Additional Public Prosecutor for the 1st

respondent State and also learned counsel for the 2nd

respondent-de facto complainant, would fairly concede that as

the Apex Court struck down Section 377 of IPC that the

present criminal prosecution of the petitioner for the offence

punishable under Section 377 IPC is not maintainable.

7. However, as regards the offence punishable under

Section 498-A of IPC is concerned, it has been contended that

the facts of the case and the contents of the F.I.R. prima facie

show that the alleged harassment caused to the de facto

complainant, both physically and mentally, by the petitioner

has not only taken place in America, but the same also took

place in India. They would also further submit that even

though the harassment was caused to the de facto

complainant by the petitioner in America, where they lived

together for some time, that the consequence of the said

harassment ensued to the de facto complainant in India when

she was brought by the petitioner to India, and left her in

India. So, they would submit that the case can be registered

even in India.

8. Learned counsel for the 2nd respondent de facto

complainant would submit that even as can be seen from

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Section 188 Cr.P.C. sanction is required only for taking

cognizance of the case and as the case is now under

investigation and charge-sheet is yet to be filed and numbered

that the bar contained in Section 188 Cr.P.C. is not applicable

for registration of F.I.R. and for investigation of the case by the

police. He submits that bar under Section 188 Cr.P.C. applies

only at the time of taking cognizance of the said case by the

trial Court. So, he would contend that as there is no bar on

the police to investigate the case and to file charge-sheet, the

present case cannot be quashed. Therefore, he would pray for

dismissal of the Criminal Petition.

9. Perused the record.

10. As regards the offence punishable under Section 377

IPC, the Apex Court in the case of Navtej Singh Johar v.

Union of India1 has struck down Section 377 IPC. The said

judgment striking down Section 377 IPC was rendered on

06.09.2018. It is well settled law when an offence under any

of the provisions of the Indian Penal Code was struck down,

the same applies from the inception of the incorporation of

said section of law in the Indian Penal Code. Therefore, it

equally applies to the present case also which was registered

in the year 2016. So, the launching of criminal prosecution

against the petitioner for the offence punishable under Section

(2018) 10 SCC 1

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377 IPC is not maintainable. Therefore, the F.I.R. in so far as

Section 377 IPC is concerned, it is liable to be quashed.

11. Apropos, the offence punishable under Section 498-A of

IPC is concerned, the F.I.R. cannot be quashed on the ground

that the allegations ascribed by the de facto complainant

against the petitioner regarding physical and mental

harassment caused to her by the petitioner are false. It is not

a valid ground for quashing of F.I.R. It is settled law that the

said disputed question of fact whether the allegations made in

the F.I.R. are true or not cannot be gone into by this Court in a

petition filed under Section 482 Cr.P.C. in exercise of its

inherent powers. It is the matter to be ascertained during the

course of investigation by the Investigating Officer whether the

said allegations are true or not. At this stage, this Court do not

find any valid legal ground warranting its interference under

Section 482 Cr.P.C. to quash the F.I.R. for the offence

punishable under Section 498-A of IPC on the ground that the

allegations ascribed against the petitioner are false.

12. As regards the contention of the learned counsel for the

petitioner that the contents of the F.I.R. prima facie show that

the alleged physical and mental harassment said to have been

caused by the petitioner to the de facto complainant took place

in America, where they lived together for some time, and as no

such incident took place in India that the present F.I.R. cannot

be registered for the offence that took place in America is

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concerned, he relied on Section 188 Cr.P.C. which reads as

follows:

"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."

13. A bare reading of Section 188 Cr.P.C. makes it manifest

that when an offence is committed by a citizen of India,

outside India, whether on the high seas or elsewhere, he can

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. However, only the proviso to Section 188 Cr.P.C. says

that no such offence shall be inquired into or tried in India

except with the previous sanction of the Central Government.

Therefore, the proviso only imposes a bar to inquire into the

offence or trial of the said offence in India without previous

sanction of the Central Government. The proviso did not

impose any bar for registration of the crime and for

investigation of the case, even though the offence that was

committed by a citizen of India took place outside India. The

proviso has imposed bar only to try the case without previous

sanction of the Central Government. The said stage has not

yet arisen in the matter. The matter is still under investigation

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and only after the final report is filed and when the Court

takes cognizance of the said matter, then the sanction of the

Central Government to try the case is required. A careful

perusal of the said Section makes it very clear that sanction of

the Central Government is not required to register the case or

F.I.R. and to investigate the same. Therefore, the present

F.I.R. cannot be quashed on the aforesaid objection raised by

the learned counsel for the petitioner by invoking Section 188

of Cr.P.C.

14. The legal position in this regard is not res integra and the

same has been elaborately dealt with by the Supreme Court in

the case of Thota Venkateswarlu v. State of A.P.2 and by this

Court in the case of Rapolu Anand v. State of A.P.3.

15. Section 3 of IPC is also relevant in this context to

consider and it reads as follows:

"3. Punishment of offences committed beyond, but which by law may be tried within, India.--Any person liable, by any Indian law to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India."

16. Therefore, it is now clear from Section 3 of IPC also that

any person liable, by any Indian Law, be tried for an offence

committed beyond India and shall be dealt with according to

the provisions of the Indian Penal Code for any act committed

beyond India in the same manner as if such act had been

AIR 2011 SC 2900

2012(3) ALT (Cri.) 108

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committed within India. Even Section 4 of IPC also envisages

that the provisions of the Indian Penal Code also apply to any

offence committed by any citizen of India in any place within

and beyond India. Explanation (a) to Section 4 IPC is relevant

to consider which says that the word "offence" includes every

act committed outside India which, if committed in India,

would be punishable under the Indian Penal Code.

17. Further it is also well settled that even when the wife is

subjected to physical and mental harassment by the husband

and his relatives at one place and if the wife who was

discarded by the husband or deserted by him, suffers the

consequences of the said harassment at another place, the

Court at that place, where she has been suffering the

consequences of said harassment, would also have jurisdiction

to try the case in view of Section 179 Cr.P.C. Section 179

Cr.P.C. reads as follows:

"179. Offence triable, where act is done or consequence ensues.

When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued."

18. The 3-Judge Bench judgment of the Apex Court in the

case of Rupali Devi v. State of Uttar Pradesh4, while dealing

with Section 179 Cr.P.C. in a matter relating to jurisdiction of

Courts to take cognizance and issue legal proceedings where

AIR 2019 SC 1790

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woman was forced to take shelter with parents or other family

members due to act of cruelty at matrimonial home held as

follows:

"Courts at place where wife took shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498-A of IPC."

The Apex Court further held as follows:

"The adverse effects on mental health in the parental home though on account of the acts committed in matrimonial home would, in our considered view, amount to commission of cruelty within the meaning of Section 498-A of IPC at parental home. The consequences of the cruelty committed at the matrimonial home results in repeated offences being committed at parental home. This is the kind of offences contemplated under Section 179 Cr.P.C. which would squarely be applicable to the present case as an answer to question raised".

19. Relying on the said judgment, this Court also in the case

of Lingam Anil Kumar v. Sowmya Lingam5 held at para.29

as follows:

"It is further clear that as per Section 179 Cr.P.C. that if the offence took place in one local area and its consequence has ensued in another local area, even the Court within whose jurisdiction the consequence has ensued also got jurisdiction to try the case."

20. In the instant case, as the de facto complainant has

suffered the consequences of the alleged harassment said to

have been caused at her matrimonial home here in India

within the jurisdiction of the Police Station which registered

2020 (3) ALT (Cri) 187 (A.P.) = 2020 (2) ALD (Cri) 164

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the case, the said aspect has to be also taken into

consideration in deciding the aspect of jurisdiction as raised

by the petitioner.

21. In this context, it is also relevant to note that in order to

constitute an offence under Section 498-A of IPC, the alleged

harassment need not necessarily be in connection with any

demand for additional dowry or security. The word "cruelty" is

defined in the Explanation appended to Section 498-A of IPC.

It is in two parts (a) and (b). The act of "cruelty" as defined in

clause (a) need not necessarily be in relation to any unlawful

demand for any property or valuable security. A careful

perusal of clause (a) shows that any wilful conduct which is of

such a nature as is likely to drive the woman to commit

suicide or to cause injury or danger to life, limb or health

(whether mental or physical) of the said woman, is said to be

an act of 'cruelty', for the purpose of prosecuting the said

husband or his relative for the offence punishable under

Section 498-A of IPC. As per settled law in this regard, the

said wilful conduct of the accused must be offensively unjust

to a woman and the degree of intensity of such unjust conduct

on the part of the accused must be such as is likely to drive

the woman to commit suicide or such conduct is likely to

cause grave injury or danger to life, limb or to her mental or

physical health.

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22. In the instant case, a perusal of the contents of the F.I.R.

shows that the husband behaved in an abnormal manner

where he has persistently insisted and forced the wife for

unnatural sex. The contents of the F.I.R. speak volumes of the

same. Though it is not an offence under Section 377 of IPC,

certainly, it would be a conduct which is offensively unjust on

the part of the husband to a woman, who is the de facto

complainant, which conduct would likely to cause grave injury

or danger to her life, limb or to her mental or physical health.

Disjunctives are used in clause (a) of Explanation under

Section 498-A of IPC. The said unjust conduct need not

necessarily be a circumstance which may drive the woman to

commit suicide. Since the disjunctives are used and if such

unjust conduct even if it is likely to cause injury to her life,

limb or to her mental or physical health and when it adversely

affects the mental health of a woman, it would fall within the

definition of "cruelty". This Court in the above judgment in

Lingam Anil Kumar5 also dealt with the said legal position at

para.21 of the said judgment. Therefore, these are all the

matters to be elaborately and extensively examined during the

course of investigation and, if charge-sheet is filed, at the time

of taking cognizance.

23. Since, prima facie, the offence under Section 498-A of

IPC is made out from the facts of the case, it is not a case for

quashing the F.I.R. for the offence punishable under Section

498-A of IPC.

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24. Therefore, in view of the aforesaid discussion, this Court

do not find any substance in the contention of the petitioner

that the present F.I.R. cannot be registered in India and that

the same is liable to be quashed in view of Section 188 Cr.P.C.

25. The Criminal Petition is partly allowed quashing the

F.I.R. registered for the offence punishable under Section 377

IPC. As regards the offences punishable under Section 498-A

of IPC and Sections 3 and 6 of the Dowry Prohibition Act are

concerned, the registration of F.I.R. is found to be valid and

investigation shall go on. The Criminal Petition, in respect of

the offences punishable under Section 498-A of IPC and

Sections 3 and 6 of the Dowry Prohibition Act, is hereby

dismissed.

The miscellaneous petitions pending, if any, shall also

stand closed.

________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date:03.03.2021.

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