2006 Supreme(AP) 1174

Andhra Pradesh High Court
Judges : A.GOPAL REDDY
VIJAYA SARADHI VAJJA - Appellant
Versus
DEVI SRIROPA MADAPATI - Respondent
Decided On : 10/10/2006
Crl. P. 3934 Of 2005

Headnote:Criminal Procedure Code, 1973—Section 188—Petition to quash FIR and investigation in an offence under Sections 498A and 506 Indian Penal Code registered on complaint of wife of petitioner—Plea that petitioner was citizen of USA and without prior sanction of Central Government contemplated under Section 188 Criminal Procedure Code, police could not register and investigate into the matter —Whether the bar contained in proviso to Section 188 Criminal Procedure Code would extend to investigation also? No.

       Held: Before considering the rival contentions, the facts which are not in dispute have to be noticed are: That the petitioner married the complainant on 6.8.1995 and since then they lived in USA where a male child was born on 6.4.2000; later differences arose between the parties; the spouses approached the Circuit Court of Fairfax Country, Virginia, USA and obtained a final decree on 14.1.2004; while granting divorce the said Court permitted the father and mother to share the custody of the child; the father became a citizen of America in the year 2003 i.e. three years after the birth of the child and consequent upon the divorce, the mother, not being a citizen of America, returned back to India along with the child and later filed O.P. No. 326 of 2004 under Section 9 of the Guardians and Wards Act, 1980 seeking custody of the child, in which petitioner filed I.A. No. 845 of 2004 under Order XIV Rules 1 and 2 r/w 151 CPC to try the issue of jurisdiction and maintainability of the O.P. as a preliminary issue. On dismissal of the said I.A. petitioner filed FCA No. 33 of 2005 wherein this Court by order dated 24.2.2006 dismissed the appeal with a direction to the Family Court to dispose of the O.P. filed by the complainant expeditiously. Pending the above proceedings it appears that the petitioner obtained a decree on 18.6.2004 wherein the Circuit Court directed the complainant to return the minor child to the petitioner at his residence in Virginia, which triggered the filing of the complaint.

       This Court cannot go into the validity of the consent decree obtained by the petitioner, suffice it to say that the 1st respondent/complainant had not brought to my notice of her filing any O.P. to nullify the consent decree passed by the Circuit Court nor it is disputed that the petitioner has acquired American citizenship in the year 2003.

       The issue that falls for consideration is: “Whether the bar contained in proviso to Section 188 Criminal Procedure Code is also extended to investigation ?” (Paras 5 to 7)

       “Inequity” relates to proceedings before Magistrate prior to trial, while “investigation” is confined to proceedings taken by the police or by any person other than a Magistrate who is authorized in his behalf. The object of an investigation is the collection of evidence and of an inquiry the taking of evidence for further action. Investigation consists generally of—(i) Proceeding to the spot; (ii) Ascertainment of facts and circumstances; (iii) Discovery and arrest of suspected offender; (iv) Collection of evidence which may consist of (a) examination of persons (including accused) and recording statements if thought fit, (b) search of place and seizure of things; (v) consideration whether the materials are enough for submitting a charge-sheet before the Court. (See H.N. Rishbud v. State of Delhi, AIR 1955 SC 196; State of M.P. v. Mubarak Ali, AIR 1959 SC 707; State of U.P. v. Bhagwant Kishore Joshi, AIR 1964 SC 221. A Police Officer investigates a case by himself or under the order of a Magistrate under Section 202. In view of the same, the word ‘inquiry’ used in proviso to Section 188 Criminal Procedure Code is confined to proceedings before the Magistrate prior to trial alone but cannot be extended to ‘investigation’ by the police. The bar, if any, will operate to inquiry before the Magistrate after the police laid the charge-sheet for the offence. (Para 17)

       Proviso to Section 188 Criminal Procedure Code however provides the safeguard for the NRI to guard against any unwarranted harassment by directing, “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”. Since the proviso begins with a non-obstante clause its observance is mandatory. But it would come into play only if the principal clause is applicable, namely, it is established that an offence as defined in clause (n) of Section 2 of the Cr.P.C. has been committed and it has been committed outside the country. (Para 18)

       In view of the law as aforementioned once the allegations in the complaint disclose that threats were received telephonically at India and crime is registered for the offence under Section 506, it is not desirable to scuttle the investigation at the prime stage.

       Since no other grounds have been urged for staying the investigation, there is no bar for the police to investigate into the crime registered for the alleged offence and filing of charge-sheet. On filing the charge-sheet only when the Magistrate proceeds to make an inquiry into the matter, having regard to the nature of allegations, petitioner can insist for sanction of Central Government for collection of evidence during the course of trial into the charges so framed. (Paras 22 and 23)

       Result: Petition disposed of.