Rajasthan High Court – Jodhpur
Roofi Nawaz & Ors vs State & Anr on 24 May, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 966 / 2013

1. Roofi Nawaz S/o Bedyujama Sheikh B/c Muslim, aged 35 years.

2. Bedyujama Sheikh S/o Abdul Latif Sheikh, B/c Muslim, aged 68 years.

3. Smt. Shireen Sheikh W/o Bedyujama Sheikh B/c Muslim aged 58 years All are R/o Plot No.6, Road No.4, Sector No.12, New Panvel, New Mumbai.

—-Petitioners Versus

1. State of Rajasthan.

2. Smt. Hoor D/o Mohammed Shabbir Khan B/c Muslim, R/o B-

37, Near Tempu Stand, Air Force Circle, Ratanada, Jodhpur (Complainant).

—-Respondents _____________________________________________________ For Petitioner(s) : Mr. H.M. Saraswat.

For Respondent(s) : Mr. Deepak Choudhary, PP.

Mr. Dinesh Ojha _____________________________________________________ HON’BLE MR. JUSTICE SANDEEP MEHTA Judgment Date of Judgment: 24/05/2018 The instant misc. petition has been preferred by the accused petitioners under Section 482 Cr.P.C. for challenging the order dated 12.04.2013 passed by the learned Sessions Judge, Jodhpur in revision, affirming the order dated 14.03.2011 passed by the learned Metropolitan Magistrate No.2, Jodhpur Metro in connection (2 of 9) [CRLMP-966/2013] with FIR No.26/2010 whereby, cognizance was taken against the petitioners for the offences under Sections 498A and 406 IPC and the matter was transferred to the Court of the learned Judicial Magistrate, Jodhpur District for trial of the criminal case which has been registered as Criminal Original Case No.174/2011.

Facts in brief are that the respondent No.2 Smt. Hoor filed a complaint against the petitioners in the court of Metropolitan Magistrate No.2, Jodhpur alleging inter alia that her marriage was solemnised with the petitioner No.1 Shri Roofi Nawaz at the village Ozhar, District Nasik. Her father gave wholesome dowry articles and cash in the marriage. After two days of the marriage, all of a sudden, behaviour of her husband and in-laws changed towards her. She was ignored and insulting taunts were passed at her owing to her dark complexion. She was stigmatised by saying that a fair match was being sought for Roofi Nawaz, but misfortune had fallen on them as the complainant was of dark complexion. The accused started finding trivial flaws in her work. She was harassed and humiliated and was pressurised to demand cash and a flat from her father. Her husband went abroad in relation to his work. Whenever, the complainant called him, she was abused. On 19.09.2009, the complainant left her matrimonial home and came to Jodhpur where, her father was posted. She called her in-laws from Jodhpur and requested them to return her streedhan articles but they bluntly refused and instead, demanded a car and a bungalow from her. She further alleged that the accused hatched a conspiracy with each other and a totally fake Talaknama fraudulently procured from Rackam’s, Grand Cayman Island was (3 of 9) [CRLMP-966/2013] sent to her through e-mail. The complaint submitted by the respondent No.2 was forwarded to Mahila Thana, Jodhpur where, FIR No.218/2009 was registered and investigation commenced. The police, after investigation, came to a conclusion that no part of the cause of action pertaining to the alleged offences took place within the Jodhpur district and as a matter of fact, the parties married and resided together at the village Ozhar, District Nasik and had never interacted at Jodhpur. Thereupon, a negative final report on the ground of lack of territorial jurisdiction was submitted by the I.O. in the court concerned. The complainant, upon being notified of the Negative Report, filed a protest petition and got herself and her witnesses examined under Sections 200 and 202 Cr.P.C. Thereupon, the learned Magistrate proceeded to pass the order of cognizance dated 14.03.2011 and summoned the accused petitioners for the offences under Sections 498A and 406IPC. While considering the aspect of jurisdiction, the learned Magistrate observed that in the enquiry under Sections 200 and 202 Cr.P.C., the complainant and her witnesses affirmatively stated that while the lady was living at Jodhpur, the accused often called her on phone and abused her and also conveyed their illegal demands to her at Jodhpur and thus, a part of cause of action pertaining to the offences alleged could be considered as having occurred within the territorial jurisdiction of the court at Jodhpur. With this conclusion, the learned Magistrate proceeded to accept the protest petition and took cognizance against the accused petitioners in the above terms. The said order passed by the learned Magistrate was unsuccessfully challenged by the accused (4 of 9) [CRLMP-966/2013] in revision which was dismissed by order dated 12.04.2013. Hence, this misc. petition.

During the pendency of the misc. petition, this Court attempted to mediate between the parties. On 10.01.2018, Shri H.M. Saraswat, learned counsel representing the petitioners, conveyed to this Court that the complainant has compromised the matter with the petitioner and has remarried. On this statement of Shri Saraswat, this Court directed the learned counsel representing the complainant to keep her client present in the Court on the next date. The matter was taken up on 22.02.2018 on which date, Shri Dinesh Ojha, Advocate appeared on behalf of the complainant and apprised the Court that his client has remarried and is living abroad and hence, she is unable to come down to Jodhpur. He, upon being instructed, apprised the Court that the only surviving grievance of the complainant as against the accused as on date is that her streedhan articles are still lying in matrimonial home at the village Ozhar, District Nasik and that the same should be brought down to Jodhpur and returned to her. Shri Saraswat, learned counsel representing the accused petitioners emphatically stated that it was the complainant who deserted the matrimonial home and she is always free to approach the petitioners’ house and take whatever articles of her which may be still lying there. However, Shri Ojha persisted with the submission that the articles should be brought to Jodhpur and then only, the complainant would consider the offer of compromise. Shri Saraswat also made an alternative offer that if at all, the complainant’s allegation regarding retention of her dowry articles (5 of 9) [CRLMP-966/2013] is accepted as per the list supplied then the current value thereof would not exceed beyond Rs.2,00,000/- as a fair offer of compensating her, and the accused are ready to pay the complainant a sum of Rs.3,50,000/- which would more than cover the value of the stridhan articles claimed by the complainant. However, Shri Ojha contacted his client and apprised the Court that she is not willing to accept the said offer. Thus, the matter was heard on merits.

Shri Saraswat learned counsel representing the petitioners relied upon the Supreme Court decision in the case of Y. Abraham Ajith & Ors. vs. Inspector of Police, Chennai & Anr., reported in AIR 2004 SC 4286 and urged that even if the allegations of the complainant are accepted as they are, no part of the cause of action pertaining to the alleged offences took place within Jodhpur district and hence, trial of the present petitioners is not permissible in any court at Jodhpur. Both the parties belong to Maharashtra and admittedly, the complainant married petitioner Roofi Nawaz in the district Nasik and the entire duration for which the spouses resided together was spent in the matrimonial home at the village Ozhar, District Nasik. As per Shri Saraswat, the complainant herself could not adjust in the matrimonial home and voluntarily came down to Jodhpur because at that point of time, her father was posted here. None of the petitioners ever came down to Jodhpur to meet or interact with the complainant during this period. Rather, after the complainant had returned to Jodhpur, the petitioner Roofi Nawaz communicated the Talaknama to her through an e-mail dated 26.09.2009. He urged that in the typed (6 of 9) [CRLMP-966/2013] FIR lodged by the respondent No.2, she alleged that she left for Jodhpur on 19.09.2009 and then, she claims to have called the petitioners No.2 Bedyujama Sheikh (father in-law) and petitioner No.3 Smt. Shireen Sheikh (mother-in-law) on mobile on 28.09.2009 who allegedly threatened her that she would not be allowed to stay in the matrimonial home unless she brought a car or a bungalow in gift. As per Shri Saraswat, the complainant had already been communicated with the divorce forwarded by the petitioner No.2 through e-mail dated 26.09.2009, there was no occasion for any demand being made from her thereafter i.e. on 28.0.2009 and the allegation made in this behalf is concocted. He thus urges that the trial of the accused in the court at Jodhpur is absolutely illegal and without jurisdiction and hence the entire proceedings should be quashed.

Per contra, Shri Dinesh Ojha learned counsel representing the complainant placed reliance on the Supreme Court decision in the cases of Sunita Kumari Kashyap vs. State of Bihar & Anr., reported in (2011)11 SCC 301 and Chandralekha vs. State of Rajasthan & Anr., reported in (2013)14 SCC 374 and urged that in both these cases, Hon’ble the Supreme Court has considered the issue regarding harassment being meted out to the complainant through telephonic calls and on the basis thereof, the jurisdiction to try the case was held to be within the domain of the court at the place where the calls were received. He urged that in the present matter also, the accused demanded valuables i.e. a flat and a car during the mobile conversation held with the complainant who was at Jodhpur and thus, the court at Jodhpur (7 of 9) [CRLMP-966/2013] has jurisdiction to try the case. He thus craved dismissal of the instant misc. petition.

I have given my thoughtful consideration to the arguments advanced at bar and have gone through the material available on record.

In view of the preceding facts pertaining to the offer made by Shri Saraswat for paying a sum of Rs.3,50,000/- to the complainant towards her dowry articles and the refusal of Shri Ojha on being instructed by his client, this Court has to remain conscious of the motive and intent of the complainant. The spouses hail from Maharashtra and were married at the village Ozhar, District Nasik on 27.07.2008. Manifestly, the matrimonial relations between the petitioner Roofi Nawaz and the respondent No.2 complainant survived for a period shy of one year. The petitioner Roofi Nawaz, left for the foreign country where he was working and in the month of September, 2009, the complainant left the matrimonial home and came down to Jodhpur of her own volition because her father was posted here. As per the FIR, there was no untoward incident when the complainant left the matrimonial home and rather it is clear that her departure from the matrimonial home was in a congenial atmosphere. As per the complainant’s own case, the petitioner Roofi Nawaz gave her telephonic assent and the accused petitioners No.2 and 3 gave her oral permission to visit her parents. Apparently, neither was any demand made by the complainant for return of streedhan articles at that time nor did the accused restrain her from carrying the same with her while she was leaving the matrimonial home of her (8 of 9) [CRLMP-966/2013] own volition. Manifestly thus, till that time, there was no issue regarding so called illegal retention of the complainant’s streedhan articles. The complainant has tried to convey in her investigational and inquiry statements that the accused demanded a flat and a car from her in the telephonic conversation which took place with her at Jodhpur on 28.09.2009. Apparently, this averment made by the complainant in her FIR is nothing but the part of the design to create a foundation for lodging the FIR at Jodhpur because bereft of such allegation, the complainant would not have been entertained. Be that as it may. Nether any call details have been provided by the complainant nor were collected by the I.O. so as to fortify the assertion regarding any demand having been made by the accused from the complainant during the so-called mobile conversation. It is an admitted position that the petitioner Roofi Nawaj communicated a divorce to the complainant on 26.09.2009. Thus, there was no accusation for any demand being made from her thereafter as, the matrimonial status stood severed. It is also not disputed that after the petitioner Roofi Nawaz divorced Smt. Hoor through e-mail, she has remarried and is presently living abroad.

In this background, permitting trial of the accused petitioners, who are residents of the village Ozhar, District Nasik, to be continued in the court at Jodhpur would be nothing short of a gross abuse of process of law. As has been discussed above, this Court is duly satisfied that no part of the cause of action pertaining to the offences alleged took place at Jodhpur so as to allow continuance of proceedings in the court at Jodhpur.

(9 of 9) [CRLMP-966/2013] As a consequence of the above discussion, the instant misc. petition deserves to be and is hereby allowed. The impugned order dated 12.04.2013 passed by the learned Sessions Judge, Jodhpur and the order dated 14.03.2011 passed by the learned Metropolitan Magistrate No.2, Jodhpur Metro are quashed and set aside. The trial court shall transfer the original record of the case to the court of the District Judge, Nasik who shall assign trial of the case to the Magistrate having jurisdiction. The parties shall be notified of the registration of the criminal case at Nasik as per law.

(SANDEEP MEHTA), J.

tikam daiya/

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