Delhi High Court

Braham Prakash & Ors. vs Govt. Of National Capital ... on 17 February, 2021

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Reserved on: January 07, 2021
                                        Pronounced on: February 17, 2021
+     CRL.M.C.1660/2020

      BRAHAM PRAKASH & ORS.                               ..... Petitioners

                         Through:     Mr. M. Dutta, Adv.

                         Versus

      GOVT. OF NATIONAL TERRITORY OF DELHI
      & ANR.                               .......Respondents

                         Through:     Mr. Panna Lal Sharma, APP for State

                                      with SI Lakshmi Singh, PS Ashok

                                      Vihar.

                                      Mr. Raymon Singh, Adv. for R-2


      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                                JUDGMENT

The hearing was conducted through video conferencing.

1. The present petition has been filed by the petitioners under Section

482 Cr.P.C. seeking quashing of FIR No.0187/2019 dated 27.05.2019,

registered at Police Station Ashok Vihar, Delhi.

2. Petitioner Nos.1 and 2 are the parents (father and mother) of the

petitioner No.3. They are permanent residents and citizens of the country of

Sweden, since 15.01.2002, 01.05.2002 and 01.05.2002, respectively.

Petitioner No.1 is an Engineer and Academic by profession. He obtained his

B.Sc. Engineering (Mechanical) and thereafter, M. Tech. and Ph.d. from

India's prestigious Indian Institute of Technology (Delhi). The said

petitioner has served the industry and field of academics in various

assignments with that prestigious industry giants, the Tokyo University of

Science (Tokyo, Japan), the Tokyo Institute of Technology (Tokyo, Japan)

and the Lulea University of Technology (Lulea, Sweden). Presently,

petitioner No.1 is engaged as a Professor Emeritus at the Lulea University of

Technology, Sweden.

3. Petitioner No.2 is a house-wife and social worker committed to social

issues and causes. She remains committed and steadfast in her involvement

towards aiding and assisting those inflicted by the unfortunate "down"

syndrome.

4. Petitioner No.3 is also a qualified Engineer with a degree in M.Sc.

Engineering. The said petitioner is a Global Business Development Manager

having served at Sandavik Coromant AB, Sweden and Cogent Orb Electric

Steels, United Kingdom. Presently, he is employed at a senior level with

SurahammarBruk AB, Sweden (d Division of Tata Steel, Europe). The said

petitioner and the respondent No.2 on their own volition fell in love and got

married on 04.09.2014 at New Delhi, India. At that time, the respondent

No.2 was a resident of Delhi, India. Subsequent to their marriage, the

respondent no.2 by her application/request dated 10.11.2014 applied for

emigrate to Sweden. By her "application for a residence permit based on

family ties in Sweden", the same is annexed herein as Annexure A-2.

5. Accordingly, with the aid and assistance of petitioners, the respondent

No.2 obtained the necessary leave and permission from the Government of

Sweden and in due course emigrated/moved to Sweden around March, 2016.

On emigration and relocation to Sweden, the petitioner No.3 and the

respondent No.2 organised and set-up their matrimonial home at Knutsgatan

9A, 722 14 Vasteras, Sweden.

6. Learned counsel for petitioner submitted that the respondent No.2 did

not live with the petitioner Nos.1 and 2. While they lived/resided at "Lulea",

the petitioner No.3 and the respondent No.2 lived/resided at their

matrimonial home at "Vasteras", located at a distance of (approx.) 900 kms.

from the residence of petitioner Nos.1 and 2. After the petitioner No.1's

retirement from the Lulea University, at Lulea, Sweden on 31.01.2019, the

petitioner Nos.1 and 2 moved to the city of Vasteras, Sweden. However,

they maintained separate residence and never lived with their son (petitioner

No.3) and their daughter-in-law (respondent No.2). Even at Vasteras,

Sweden their residences were at a distance of more than 20 kms. Upon and

after her emigration/relocation to Sweden, the respondent No.2 secured due

employment at Sweden. She is today gainfully employed and a permanent

resident of Sweden. Soon thereafter, serious irreversible and irreconcilable

differences arose in their matrimony threatening their marriage. Despite

various attempts and advice of the petitioner Nos.1 and 2, they were unable

to amicably resolve and reconcile such differences. Consequently, the

petitioner No.3 filed a case for divorce/nullification of their marriage on

19.03.2018 before the competent Swedish Divorce Court. With summons

being effected upon the respondent No.2, by e-mail(s)/ pleas dated

17.04.2018 and 17.10.2018, she sought "six months' reconsideration time"

from the competent Swedish Divorce Court on the premise/ plea "to save the

marriage".

7. Further submitted that with the petitioner No.3 being a Swedish

citizen, the respondent No.2 being a permanent Swedish Resident and both

parties unequivocally accepting it's jurisdiction, the competent Swedish

Divorce Court was pleased to accede to and grant a period of six months to

the respondent No.2 for "consideration and reflection". Since there was no

improvement in their matrimonial status and the period of "six months of the

consideration and reflection" had adequately lapsed, the competent Swedish

Divorce Court by Judgment/Order dated 13.12.2018 was pleased to pass a

decree of divorce terminating the marriage between the petitioner No.3 and

the respondent No.2.

8. Insofar as matrimonial properties, if any, were concerned, the

competent Swedish Court after recording the respondent No.2's prayer/ plea

"Parul Tewatia contends that the District Court shall appoint an Estate

Administrator to arrange for the apportionment of the Parties matrimonial

property" was pleased to further record the mutual consent of both Parties,

"Neither Party has had any objection to Rebecca Josefsson being given the

assignment as Estate Administrator". Consequently, with the consent of both

parties and subject to their desire, the competent Swedish Divorce Court was

pleased to appoint the aforesaid Estate Administrator, to apportion the

matrimonial property/(ies), if any, between the petitioner No.3 and the

respondent No.2.

9. Being aggrieved, an appeal filed by the respondent No.2 against the

aforesaid decree of divorce before the competent "Svea Court of Appeal",

the same was also dismissed by the Appellate Court's order/decision dated

28.01.2019. Amongst others, the Appellate Court held as under:

"The High Court has gone through the case and concluded that there is no reason to grant a trial in this case."

"The High Court does not grant a trial permission. Tne district court's decision is therefore final."

10. Despite the aforesaid facts, the police authorities instead of closing the

bogus purported complaint of the respondent No.2, proceeded to register an

FIR bearing No.0187 dated 27.05.2019 at Police Station Ashok Vihar, Delhi

against the petitioners herein, for the offences punishable under Sections

498A, 406 and 34 of the Indian Penal Code. Subsequent to the registration of

the aforesaid FIR, the respondent No.1 by e-mail dated 08.01.2020 has

desired and directed the petitioners to attend the investigation proceedings

arising and pending against them. Consequent thereon, the petitioners by

their replies dated 25.01.2020 and 10.02.2020 have filed a detailed response

before the respondent No.1, intimating and informing the said respondent

about absurdities in the complaint, including the fact that they were; a)

Swedish citizens; b) the marriage between the parties stood dissolved by a

decree of divorce; and c) the respondent No.1 did not possess any

jurisdiction to either register the aforesaid FIR or conduct any investigation

against the petitioners. While the aforesaid FIR bearing No.0187/2019 has

remained pending, the respondent No.2 apparently also filed other criminal

proceedings against the petitioner No.3 before the competent Authorities at

Sweden. After examining all allegations, the Office of the Prosecutor,

Vasteras, Sweden by their decision dated 06.04.2020 was pleased to close

all/any investigation against the petitioner No.3, on the premise as under:

"There is no reason to pursue the preliminary investigation. The available material that now exists cannot prove the nature of the person or persons who have been suspected of having committed a crime".

11. The purported complaint of the respondent No.2 was closed with the

further finding "no suspicion remained in the case". Relevant extracts of the

Prosecutor's decision dated 06.04.2020 is annexed and marked herein as

Annexure A-11.

12. Thereafter and recently, the Estate Administrator Ms. Rebecca

Josefsson appointed at the behest of respondent No.2 by the Vastmanland

District Court to apportion the matrimonial properties between the petitioner

No.3 and the respondent No.2, was pleased to pass her Order dated

15.05.2020 apportioning the respective shares of cash, jewellery/stri-dhana

etc., of each party. A Copy of an e-mail dated 05.07.2020 issued by the

respondent No.2 to the petitioner No.3 accepting the Order dated 15.05.2020

passed by the Estate Administrator is annexed and marked herein as

Annexure A-12.

13. Learned counsel for the petitioner submitted that consequently, there

is no dispute whatsoever surviving between the petitioner No.3 and the

respondent No.2. Admittedly, the marriage in question stands dissolved and

all assets etc., of parties including stridhan stands divided and apportioned.

Other criminal allegations leveled against the petitioners, have also been

closed being without any merit. In these circumstances, the present FIR is

bogus, absurd and do not require any investigation, since no grievance

whatsoever arises or can arise against the petitioner. The petitioners cannot

be investigated pursuant to the aforesaid FIR for reasons already disclosed

and narrated above. Continuance of any purported investigation against the

petitioners would be a gross abuse of the process of law and undoubtedly a

travesty of justice. The aforesaid FIR is without jurisdiction, incompetent in

law, without authority and beyond the provisions of the IPC. Thus,

impugned FIR be quashed with emanating proceedings therefrom, if any.

14. On the other hand, learned counsel for respondent No.2 submitted that

the present petition is baseless and misconceived filed under Section 482

Cr.P.C. by the petitioners inter-alia seeking quashing of the aforesaid FIR

and stay of further investigation/summons qua the petitioners in the said

FIR. The present petition has been filed on the pretext that the petitioners

were desirous of coming to India to meet an ailing relative, once

international travel resumes, however, in spite of categorical statement, the

petitioners till date have not come to India and further have refused to join

the investigation. It is important to state that despite of being served with

notices to join investigation on multiple occasions, the petitioners have

failed to join the investigation without any cogent reason. The Hon'ble

Supreme Court in the case of The State of Telangana Vs. Habib Abdullah

Jeelani and Ors. AIR 2017 SC 373 held that:-

"...16. ....It has noted and correctly that the investigation is in progress and it is not appropriate to stay the investigation of the case. It has disposed of the application Under Section 482 Code of Criminal Procedure and while doing that it has directed that the investigating agency shall not arrest the accused persons. This direction "amounts" to an order Under Section 438 Code of Criminal Procedure, albeit without satisfaction of the conditions of the said provision. This is legally unacceptable....

....23. .....The Courts should oust and obstruct unscrupulous litigants from invoking the inherent

jurisdiction of the Court on the drop of a hat to file an application for quashing of launching an FIR or investigation and then seek relief by an interim order. It is the obligation of the court to keep such unprincipled and unethical litigants at bay..."

15. Therefore, in view of the said settled position of law, the present FIR

which is at a nascent stage of investigation can not to be quashed nor an

order of the nature of interfering the process of investigation may be passed.

Furthermore, if after investigation, the investigating agency finds at any

stage that no case is made out, it is well within its power to file a closure

report with regard to the offence in question.

16. Further submitted that the present FIR satisfies the primary test, as it

prima facie discloses commission of a cognizable offence within the

territory of India. Furthermore, present FIR is still pending and is at a

nascent stage of investigation, therefore, the defence of the petitioner can

only be considered at an appropriate stage. In case of Ravindra Kumar

Madhanlal Goenka and Anr. Vs. Rugmini Ram Raghav Spinners Pvt. Ltd.

AIR 2009 SC 2383, the Apex court held that defence material cannot be

considered in proceedings filed under Section 482 Cr.P.C. The relevant

portion is reiterated herein below:

"...18. While entertaining a petition under Section 482 CrPC, the materials furnished by the defence cannot be

looked into and the defence materials can be entertained only at the time of trial. It is a well-settled position of law that when there are prima facie materials available, a petition for quashing the criminal proceedings cannot be entertained. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases.

19. While considering the facts of the present case, we are of the considered opinion that the present case is not one of those extreme cases where criminal prosecution can be quashed by the Court at the very threshold. A defence case is pleaded but such defence is required to be considered at a later stage and not at this stage. The appellants would have ample opportunity to raise all the issues urged in this appeal at an appropriate later stage, where such pleas would be and could be properly analysed and scrutinised...."

17. In view of the aforesaid settled position of law, this Court in exercise

of its powers under Section 482 Cr.P.C. ought not to consider the defence of

the petitioner at this preliminary stage of investigation. Furthermore, it

would not be appropriate for this Court, to evaluate the merit of the

contentions and authenticity of the documents filed by the petitioners

annexed with the present petition. Such materials can be produced by the

petitioners before the appropriate authority in accordance with law.

Furthermore, the petitioners have sought the quashing of the present FIR on

the ground that it does not reveal or disclose detailed facts and

circumstances, however, it has been laid down by the Apex Court in Satpal

V. State of Haryana (2018) 6 SCC 610 that an FIR is not to be read as an

encyclopedia requiring every minute detail of the occurrence to be

mentioned therein. Therefore, the present petition is neither maintainable nor

tenable. Thus, deserves to be dismissed.

18. Heard learned counsel for the parties and perused the material on

record.

19. Sections 1 and 4 of IPC read with Section 188 of Cr.P.C. make it

abundantly clear that the provisions of the Code apply and extend; a) only

within the territory of India; and b) to citizens of India beyond the territory

of India. The provisions of IPC and Cr.P.C. thus make it unambiguously and

unequivocally clear that they are inapplicable to; a) territories beyond the

territory of India except and in case of Indian citizens; and b) to foreigners

non-Indian citizens beyond the territory of India. In interpreting and

commenting on the aforesaid provisions, the Supreme Court in case of

Central Bank of India versus Ram Narain AIR 1955 SC 36, categorically

held as under:

"If however, at the time of the commission of the offence the accused person is not a citizen of India, then the provisions of these sections have no application whatsoever."

20. In the present case, the impugned FIR has been registered against the

petitioners who are foreigners/citizens of the Country of Sweden. Thus, no

criminal proceedings including the impugned FIR can be registered nor any

investigation as sought to be pursued by the respondent No.1 against the

petitioners under the provisions of either the Indian Penal Code or the Code

of Criminal Procedure on the grounds as under:

"a) the matrimonial home of the parties herein /(the petitioner No.3 and the respondent No.2) was located at Sweden and not at India/or within the territorial jurisdiction of this Court;

b) every and all purported offence alleged to have been committed by the petitioners are alleged to be so committed during the period of matrimony at Sweden;

c) none or no offence was and is alleged to have been committed at Delhi or within the territorial jurisdiction of this Court; and

d) lastly, no complaint whatsoever alleging any form of violence or criminal wrong was ever filed by the respondent No.2 against the petitioners during her period of matrimony between 2015 and December, 2018 before any Forum whatsoever at Sweden."

21. Be that as it may, admittedly, the marriage between the parties was

duly terminated by the competent Swedish Divorce Court by a decree of

divorce dated 13.12.2018. Even the appeal filed against such decree by the

respondent No.2, was also dismissed by the competent Appellate Court on

28.01.2019. Moreover, the respondent No.2 admittedly accepted and

acceded to the jurisdiction of the competent Swedish Divorce Court and

voluntarily participated in divorce proceedings held before the competent

Swedish Divorce Court. Having accepted and acceded to the jurisdiction of

the competent Swedish Divorce Court, the respondent No.2 being a

permanent resident of Sweden is bound by the decree of the Swedish

Divorce Court.

22. The impugned FIR dated 27.05.2019 is evidently filed subsequent to

the decree of divorce and the dismissal of appeal against the decree of

divorce as an apparent act of vengeance and personal grudge, knowing the

petitioners were foreigners and apprehensive of the Indian law enforcement

authorities. Despite the respondent's knowledge that the petitioner Nos.1 and

2 never resided at the matrimonial home of the parties, false, absurd and

baseless allegations have been levelled against them, again only to wreak

vengeance, grudge and animosity.

23. On the contrary, it is and was the respondent No.2's very own case

before the Swedish Divorce Court that she may be granted a period of six

months to enable her to "reconsider" and "reflect" upon the matter.

Accordingly, the Swedish Divorce Court granted such time to the

respondent No.2 and it is only upon the expiration of such time/period of six

months with parties failing to reconcile their differences, the Swedish

Divorce Court proceeded to pass and grant decree of divorce in favour of the

parties.

24. The aforesaid grounds and facts as pleaded in the present petition

does emphatically establish that the impugned FIR is without jurisdiction,

unlawful, malafide, malicious and an evident act of personal vengeance and

grudge. The malafides and malice apparent in the present FIR further borne

from the facts that despite the parties having duly divorced, the FIR is

conspicuously silent in failing to disclose and reveal that a decree of divorce

had been granted by the competent Swedish Divorce Court.

25. The only and sole incident attributed to the territorial jurisdiction of

this Court, pertain to alleged jewellery and stridhan being retained by the

petitioner No.2 at New Delhi in a locker maintained with HDFC Bank, New

Delhi. This sole and isolated plea is evidently vague, ambiguous and without

description. It fails to specify when such stridhan was taken by the petitioner

No.2 and why such a plea was not raised before the Swedish Divorce Court.

The parties were married in 2014 and it is for the first time in 2019 that the

respondent No.2 is raising such a claim. Thus, from the facts, it establishes

that such plea was absolutely belated, delayed and subjected to unwarranted

embellishment and exaggerations.

26. In addition to above, post-registration of the FIR dated 27.05.2019,

the respondent No.2 filed/leveled serious criminal allegations against the

petitioner No.3 alleging violation of Women's Rights and Rape during their

period of matrimony before the competent Swedish Authority at Vasteras,

Sweden. The Office of the Prosecutor, Vasteras, Sweden through its

Prosecutor Ms.Anna Elmlov by her Order dated 06.04.2020, while rejecting

all / any such allegations and directing closure of all investigations, held as

under:

"There is no reason to pursue the preliminary investigation. The available material that now exists cannot prove the nature of the person or persons who have been suspected of having committed a crime."

In conclusion, the Prosecutor further held "no suspicion remained in

the case."

27. It is apparent that similar allegations of violation of Women's Rights

are contained in the present FIR, which have been duly closed by the

competent Swedish Authorities. Evidently, the Estate Administrator by her

Order dated 15.05.2020 has apportioned and distributed all assets including

bank deposits, jewellery/stridhan etc., between the respective parties.

Consequently, nothing further survives for distribution/retention by

anyone/or the other party.

28. In view of the aforesaid facts, in my considered view, nothing further

survives in the present FIR to be investigated or pursued. Any and

everything of consequence has been duly addressed and adjudicated by the