Rohit Kuthiala & Ors vs State & Anr
2016 Latest Caselaw 2262 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                          Judgment delivered on : March 22, 2016

+       CRL.M.C. 1699/2015
        ROHIT KUTHIALA & ORS                                   ..... Petitioner
                        Through:           Mr.Vikas Pahwa, Sr.Adv. with
                                           Mr.Prosenjeet Banerjee, Mr.Chand
                                           Chopra, Mr.Vipul Sharma and
                                           Mr.Aditya Dogra, Advocates.

                             versus

        STATE & ANR
                                                                   ..... Respondent
                             Through:      Ms.Manjeet Arya, Additional Public
                                           Prosecutor for the State.
                                           Mr.Vishal Chadha, Advocate for
                                           respondent No.2.
        CORAM:
        HON'BLE MR. JUSTICE P.S.TEJI
                           JUDGMENT

P.S.TEJI, J.

1. By this petition filed under Section 482 of Cr. P.C., the petitioners seeks quashing of the summoning order dated 30.07.2014 whereby the petitioners have been summoned and to quash the FIR No. 68/2013, registered at Police Station Crime Against Women Cell, Nanakpura, New Delhi and the proceedings emanating therefrom, passed by learned Metropolitan Magistrate-01, Mahila Court, South- West, Dwarka Courts, Delhi.

2. In nutshell, the brief facts of the case are that the petitioner No.1 got married with respondent No.2 on 04.12.2005 as per Hindu rites and ceremonies at Resort Country Club, Manesar, Haryana. Reception

was held in Gurgaon on 06.12.2005. On 07.12.2005, the newly wedded couple left for Watford Hertfordshire, United Kingdom and started residing as husband and wife. Out of the wedlock of the petitioner No.1 and the respondent No.2, a son - Ronit Kuthiala was born on 13.01.2007 in Watford, U.K. On 24.03.2007, respondent No.2 left her matrimonial house at Watford, UK with all her personal belongings and stayed in a rented accommodation separately. Since she was not living with her husband, therefore, she was not granted dependent visa by the UK immigration authorities and ultimately she had to leave UK in February 2008. The petitioner No.1 filed a divorce petition in Watford County Court, UK on 16.07.2009. During pendency of the divorce petition, correspondences were exchanged between the solicitors of petitioner No.1 and respondent No. 2, wherein the solicitor for respondent No. 2 accepted that the marriage has broken down irretrievably and respondent No. 2 allows the divorce petition to proceed on an undefended basis and vide letter dated 28.10.2009, respondent No. 2 reminded the petitioner to file the divorce as soon as possible in order to minimize costs as the respondent No. 2 was not inclined to file any acknowledgement and cross-petition. Vide letter dated 29.01.2010, the respondent No. 2 while denying the allegations, accepted the fact that the marriage between the petitioner No.1 and respondent No. 2 has broken down. Consequently, on 27.07.2010, the Watford Country Court passed a decree nisi on the ground that the marriage has irretrievably broken down on account of respondent No. 2's unreasonable behavior. Thereafter, upon applying for decree absolute, by the petitioner No.1

on 11.02.2011, the Watford Country Court passed decree absolute on 06.08.2012.

3. As per case of the petitioner, after the decree absolute was granted, respondent No. 2 became vindictive and started sending obscene emails to the petitioner No.1's relatives and employers. A complaint in this regard was filed by the father of the petitioner No.1 against respondent No. 2 on 14.07.2012 and accordingly an FIR No.311/2012 under Section 66C and 67A of I.T. Act 2000 was registered at Police Station Palam Vihar, Gurgaon. In counterblast to the aforesaid complaint of father of the petitioner No.1, respondent No. 2 filed a criminal complaint with the CAW Cell, Nanakpura against the petitioner No.1 and his parents on 01.02.2013. Notices in the said complaint were issued and the petitioners cooperated in the investigation, all the istridhan belonging to respondent No. 2 was returned but still the efforts to settle the matter failed and FIR No. 68/2013 under Section 498A/406/34 of IPC was registered against the petitioners. After completion of investigation, charge sheet in the case was filed on 25.07.2014 and the Court had passed the summoning order on 30.07.2014.

4. Mr. Vikas Pahwa, learned Senior Counsel for the petitioners has raised the issue of jurisdiction of the Delhi court to entertain the complaint filed by respondent No. 2, delay in filing the FIR against the petitioners and application of mind in passing the summoning order by the Trial Court.

5. Learned Senior Counsel for the petitioners contended on behalf of the petitioners that the family members of petitioner No.1 and respondent No. 2 were residing in India, therefore, both of them decided to solemnize their marriage in India at Manesar, Haryana on 04.12.2005. Since the residence of parents of petitioner No.1 was at Haryana, therefore after marriage petitioner No.1 and respondent No. 2 went to the parental house of the petitioner No.1 and on 06.12.2005 a wedding reception was hosted in Gurgaon, Haryana. Ultimately, on 07.12.2005, both the newly wedded couple left for London. It is contended that the marriage was a love marriage therefore, there was no demand of dowry either at the time of marriage or even thereafter. Parties resided in Gurgaon, Haryana only for a period of three days, therefore, nothing had occurred within the territorial jurisdiction of Delhi Courts.

6. Learned Senior Counsel for the petitioners further contended that the husband and wife resided together at Watford Herefordshire United Kingdom and never ever resided together in India thereafter. Their son was born on 13.01.2007 at London. It is further contended that it was respondent No. 2 who left her matrimonial home at London on her own leaving behind the newly born child while carrying all her belongings and valuables including jewellery, laptop, passport, degrees etc. and started residing in a rented house. It is further contended that the child was operated upon for hernia but respondent No. 2 did not even turn up to look after the child. Since respondent No. 2 left the company of petitioner No.1, Visa Authorities did not

grant her spouse/dependent visa therefore, she was asked to leave London. Accordingly, she returned to India and on 28.02.2008 left India to join her new job at China.

7. Learned Senior Counsel for the petitioners contended that since petitioner No.1 was made to understand that respondent No. 2 would not join the company of petitioner No.1, he filed a divorce petition on 16.07.2009, in Watford County Court, Watford, U.K. on the ground of cruel behavior of respondent No. 2 which resulted in irretrievable breakdown of marriage. Consequently, on 27.07.2010, Watford Country Court passed a divorce decree (nisi) while observing that respondent No. 2 has behaved in such a way that the petitioner No.1 cannot reasonably be expected to live with respondent No. 2 and the marriage between the parties has broken down irretrievably. Respondent No. 2 conveyed the petitioner No.1 through series of emails asking him to apply for the decree absolute, which was passed on 06.08.2012 and the marriage was dissolved. Thereafter, financial settlement proceedings were initiated as per the laws in U.K. before the District Judge, Watford County Court, but despite having an opportunity to raise her claims, respondent No. 2 did not make any financial claims upon petitioner No.1 and consequently financial claims between the parties were settled vide order dated 03.01.2014.

8. It is further contended on behalf of the petitioners that after passing the divorce decree by United Kingdom Court, respondent No. 2 got furious and started making allegations in the society against the petitioners and in pursuance thereto, she hacked the emails and sent

derogatory emails to the family members as well as professional colleagues of petitioner No.1. She also sent derogatory emails to petitioner No.2 (her father-in-law), consequent thereof, petitioner No.2 registered a complaint which was registered as FIR No. 311/2012 at Police Station Palam Vihar, Gurgaon. During investigation thereof, respondent No. 2 was also interrogated. It is only thereafter as a counter blast, respondent No. 2 filed a police complaint before the Deputy Commissioner of Police, Crime Against Women Cell, Nanakpur, New Delhi, on 01.02.2013, in which notice was issued by CAW and petitioners joined the investigation and clarified the actual position about the articles/istridhan/jewellery/gifts etc, belonging to respondent No. 2 that all the articles have already been taken by respondent No. 2. Charge sheet has been submitted and the concerned Court had passed the summoning order on 30.07.2014.

9. While challenging the order, the learned Senior Counsel for the petitioners contended that the Trial Court has not considered the fact that the Watford County Court, UK has made the divorce decree absolute and even as on the date of registration of the complaint with the CAW Cell, petitioner No.1 and respondent No. 2 were not living as husband and wife. Apart from the aforesaid, learned Senior Counsel for the petitioners further contended that the Trial Court has no jurisdiction to pass an order summoning the petitioners in the present facts and circumstances of the case, as the petitioners as well as respondent No. 2 never resided in Delhi, but lived at Gurgaon address after their marriage and that too for only three days and thereafter they

left for U.K., where both the parties have taken divorce and the Watford County Court, UK has made the divorce decree absolute.

10. In support of the aforesaid submissions, learned Senior Counsel for the petitioners has relied upon the judgments related to jurisdiction points in Preeti Gupta vs. State of Jharkhand, AIR 2010 SC 3363; Harmanpreet Singh Ahluwalia vs. State of Punjab (2009) 7 SCC 712; Chandralekha vs. State of Rajasthan, (2013) 14 SCC 374; Amarendu Jyoti vs. State of Chhattisgarh, 2014 (9) SCALE 162; Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273. Reliance was also placed on the point of summoning order to be passed only after due application of mind, in Pepsi Foods Ltd. vs. Special Judicial Magistrate, (1998) 5 SCC 749; Sunil Bharti Mittal vs. CBI, (2015) 4 SCC 609; Pooja Ravinder Devidasani vs. State of Maharashtra, (2014) 16 SCC 1.

11. Ms. Manjeet Arya, Additional Public Prosecutor appearing for the State submitted that the order passed by learned Metropolitan Magistrate does not call for any interference by this Court. Respondent No. 2 has made specific allegations against the petitioners in her complaint, which can be proved during trial of the case.

12. I have heard the submissions made on behalf of the petitioners as well as the material placed on record. I have also gone through the impugned orders passed by learned Metropolitan Magistrate.

13. After careful scrutiny of the case in hand, this Court observes that the admitted facts between the parties are that their marriage was

solemnized as per Hindu Rites and Ceremonies on 04.12.2005 at Resort Country Club, Manesar, Haryana and after solemnization of marriage, the couple went to the house of the parents of petitioner No.1 at Gurgaon and on 06.12.2005 a wedding reception was hosted at Gurgaon, Haryana and thereafter, on 07.12.2005, petitioner No.1 and respondent No. 2 left for London, where they started residing as husband and wife. On 13.01.2007, out of the wedlock, a son was born in London. Divorce petition was filed and divorce decree (nisi) was passed on 27.07.2010 by the Watford County Court, UK and the same was made absolute on 06.08.2012. Thereafter, respondent No. 2 came to India and started living at Niti Bagh. Respondent No. 2 has filed a complaint against the petitioners under Section 498A-406/34 of IPC, in which the Trial Court has passed summoning order to the petitioners.

14. It would also be relevant to reproduce the extract of a judgment of Hon'ble Supreme Court in Pepsi Foods v. Special Judicial Magistrate, JT 1997(8) SC 705, which, time and again has observed that the summoning of accused in criminal case is a serious matter and criminal law cannot be set in motion as a matter of course. It read as under:

"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course, it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The

order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

15. This Court is conscious of the fact that the complaint filed by respondent No. 2 relates to matrimonial offence and there are specific allegations made against the petitioners in the complaint itself, which can be adjudicated during trial. So far as the summoning order passed by the Trial Court is concerned, this Court is of the considered view that in deciding whether a process should be issued, the learned Magistrate can take into consideration improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. The learned Magistrate has been given an undoubted discretion in the

matter and the discretion has to be judicially exercised by him. Once the learned Magistrate has exercised his discretion, it is not for this Court, to substitute its own discretion for that of the learned Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. It would be relevant to refer to the decision in Dy. Chief Controller of Imports and Exports v. Roshanlal Agarwal and Ors. (2003) 4 SCC 139, wherein the Hon'ble Supreme Court, held as under:

"9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons.

16. It further went on observing that -

"The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that

the Magistrate had not passed a speaking order."

17. In U.P. Pollution Control Board v. Dr. Bhupendra Kumar Modi and Anr. (2009) 2 SCC 147, this Court, in paragraph 23, held as under:

"23. It is a settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused."

18. This Court observes that the charge sheet has been filed in this case against the petitioners for the offences punishable under Section 498-A/406/34 of IPC and there are very clear and specific allegations against the petitioners which can be adjudicated during trial of the case. So far as the jurisdiction point is concerned, that is also a subject matter of trial and need not to be tried here. The petitioner has filed the present petition under Section 482 of Cr. P.C. seeking quashing of the summoning order dated 30.07.2014 passed by the Trial Court, and this Court is primarily required to see as to whether the petitioners have been able to make out prima facie case to exercise the discretion of this Court.

19. After going through the contents of the complaint made by respondent No. 2, this Court observes that there are very specific allegations against the petitioners, therefore, this Court does not find

any illegality or infirmity in the impugned order passed by learned Metropolitan Magistrate.

20. Resultantly, the present petition filed by the petitioners is dismissed and the petitioners are directed to appear before the Trial Court and to take appropriate legal remedies as available under the law.

21. A copy of this order be sent to Trial Court for information.

22. With aforesaid directions, the present petition stands disposed of.

(P.S.TEJI) JUDGE MARCH 22, 2016 pkb