Patna High Court
Usha Sarraf & Ors vs State Of Bihar & Anr on 14 December, 2011
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.8726 of 2009
Bhagwati Prasad Kyal & Anr
. .... Petitioners
Versus
State Of Bihar & Anr
.... .... Opposite Parties
With
Criminal Miscellaneous No. 11113 of 2009
Usha Sarraf & Ors
.... .... Petitioners
Versus
State Of Bihar & Anr
.... .... Opposite Parties
Appearance :
For the Petitioners : Mr. Chitranjan Sinha, Sr. Advocate
Mr Satyabir Bharti, Advocate
Mr G.P. Bimal, Advocate
For the State : Mr. P. Mehta, A.P.P
Opposite party no.2: None appeared
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HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA
----------------
Both the above stated criminal
miscellaneous cases have arisen out of the order dated
5.12.2008passed by Sub divisional Judicial Magistrate (East), Muzaffarpur in Complaint case no.2534/2008 by which and whereunder the learned Sub divisional Judicial Magistrate (East), Muzaffarpur, having found prima facie case under section 498A of the IPC and section 4 of the D.P. Act, ordered to issue summons to procure attendance of the petitioners for facing trial in the above stated Complaint case no.2534/2008 and, accordingly, both the above stated criminal miscellaneous cases were heard together and are being disposed off by this common order.
Patna High Court Cr.Misc. No.8726 of 2009 dt.05-12-2011 2
2. Cr. Misc. no. 8726/2009 has been filed by the petitioners- Bhagwati Prasad Kyal and Sulochna Devi Kyal, who are parents-in-law of opposite party no.2, namely, Ekta Devi Kyal whereas petitioners no. 1 to 5 of Cr. Misc. no. 11113/2009 are others in-laws and petitioner no.6 of the aforesaid criminal case is husband of opposite party no.2.
3. The brief fact, which lies to file these quashing petitions, is that opposite party no.2, namely, Ekta Devi Kyal, filed complaint case bearing Complaint case no. 2534/2008 in the court of learned Chief Judicial Magistrate, Muzaffarpur alleging therein that her marriage was solemnized with petitioner no.6 of Cr. Misc. no. 11113/2009 on 13.12.1996 at Raniganj district Burdwan, West Bengal and at the time of her marriage her father had given cash and ornaments worth Rs 7 lakhs. After solemnization of marriage, she went to her matrimonial home and started leading happy married life. On 20th October, 2002, she gave birth to a female child but after birth of female child her in-laws became annoyed and started torturing her in both ways mentally and physically and furthermore, they started mounting pressure upon her to fetch Rs 5 lakhs from her parents so that the aforesaid amount could be deposited in the name of her daughter. She further alleged that on 13.2.2008, she came to her parental home and disclosed the Patna High Court Cr.Misc. No.8726 of 2009 dt.05-12-2011 3 above stated fact to her natal people and again, she went to her matrimonial home but her in-laws did not change their behavior and also stopped providing her food and lastly, on 3.7.2008, she was ousted from her matrimonial home and her in-laws also kept her child as well as her ornaments. She came to her parental home and narrated entire story to her family members. She further alleged that she along with her other family members again went to her in-laws house but she was not allowed to enter into home and later on, she filed the above stated complaint case on 26.9.2008 in the court of the Chief Judicial Magistrate, Muzaffarpur.
4. The learned Sub divisional Judicial Magistrate, Muzaffarpur conducted enquiry under section 202 of the Cr.P.C and passed the impugned order in the manner as stated above.
5. Being aggrieved and dissatisfied with the impugned order all the above stated petitioners have preferred these petitions under section 482 of the Cr.P.C for quashing the order dated 5.12.2008 and for quashing the proceeding of above stated Complaint case no. 2534/2008.
6. It would appear from the record that on 31.8.2010 this court ordered to list Cr. Misc. no. 11113/2009 along with Cr. Misc. no. 8726/2009 and later on, on 8.9.2010, Patna High Court Cr.Misc. No.8726 of 2009 dt.05-12-2011 4 both the above stated criminal miscellaneous cases were admitted for hearing.
7. Opposite party no.2 filed her counter affidavit on 8.9.2010.
8. It would further appear from the record that dispute of the parties was referred to the High Court, Mediation & Conciliation Center but the above stated Center could not succeed to resolve the dispute of the parties through the process of Mediation.
9. Learned senior counsel, Sri Chitranjan Sinha, appearing for the petitioners questioned the jurisdiction of learned court below and, accordingly, sought for quashing the entire proceeding of Complaint case no. 2534/2008 as well as the impugned order dated 5.12.2008 passed in the above stated complaint case.
10. It is contended by him that as per complaint case itself, entire occurrence has taken place at Raniganj district Burdwan, West Bengal and no part of the alleged occurrence has taken place at Muzaffarpur, Bihar. So, the court of Muzaffaprur had got no jurisdiction to entertain complaint petition of opposite party no.2 and, therefore, entire proceedings of Complaint case no. 2534/2008 as well as the impugned order dated 5.12.2008 passed in the above stated Patna High Court Cr.Misc. No.8726 of 2009 dt.05-12-2011 5 complaint case are illegal and liable to be quashed. In support of his contentions, he referred to decision of Y. Abraham Ajith and others vs Inspector of Police, Chennai and others reported in (2004) 8 Supreme Court Case 100 in which it has been held by the Hon'ble Supreme court that the Magistrate concerned had no jurisdiction to deal with the matter, if no part of cause of action for initiation of proceeding against accused had taken place within his local jurisdiction.
11. None had appeared on behalf of opposite party no.2 at the time of hearing but from perusal of the averments of the counter affidavit dated 8.9.2010 filed on behalf of opposite party no.2, it appears that opposite party no.2 has challenged the maintainability of the present petition on the ground of guidelines laid down by the Apex court in the State of Haryana vs. Ch. Bhajan Lal & another reported in AIR 1992 Supreme Court page 604 and furthermore, on the ground that matrimonial suit bearing Matrimonial suit no. 56/2008 filed by her husband in the court of the Principal Judge, Asansol (West Bengal) has already been transferred to the court of Principal Judge, Family Court, Patna by the order of the Hon'ble Supreme court in Transfer petition no. 726/2009 and apart from the aforesaid fact a maintenance case giving rise to Maintenance case no. 57/2009 is also pending between the parties in the court Patna High Court Cr.Misc. No.8726 of 2009 dt.05-12-2011 6 of Principal Judge, Family Court, Muzaffarpur. She has also supported the impugned order stating in her counter affidavit that all the consequences of torture and demand of dowry have ensued at Muzaffarpur, Bihar after she has been driven out from her matrimonial home due to which she has been forced to stay at Muzaffarpur, Bihar and, therefore, part of cause of action has arisen at Muzaffarpur, Bihar and the court of Muzaffarpur, Bihar has got jurisdiction to entertain her complaint petition.
12. Having heard contentions of learned counsel for the petitioners as well as decision cited on their behalf, I went through the record. The only question falls for consideration as to whether the court of Muzaffarpur, Bihar had got jurisdiction to entertain Complaint case no. 2534/2008 filed on behalf of opposite party no.2 or not.
13. Before entering into the facts of this case, I think it proper to refer section 177 of the Cr. P.C which says that every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. The aforesaid section states about a general rule but the aforesaid general rule has some exception also which has been dealt with in sections 178,179, 180,181, 182,183,184, 185 and 186 of the Cr.P.C. In the present case, only sections 178 and 179 of the Cr.P.C are relevant. Section 178(a) says that when it is uncertain Patna High Court Cr.Misc. No.8726 of 2009 dt.05-12-2011 7 in which of several local areas an offence was committed, or (b) where an offence is committed partly in one local area and partly in another, or (c) where an offence is continuing one and continues to be committed in more local areas than one, or (d) where it consists of several acts done in different local areas, it may be inquired into or tried by a court having jurisdiction over any of such local areas.
14. Similarly, section 179 of the Cr. P.C says that 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.
15. Sub-clause (b) and (c) of section 178 as well as section 179 of the Cr.P.C are relevant to decide the question involved in these petitions
16. From a bare perusal of section 178 of the Cr.P.C, it is obvious that an offence can be tried or inquired by a court if some part of the offence has been committed into the local area of the aforesaid court or where offence is continuing offence and continues to be committed in more than one local area, the court having jurisdiction over any of such local area is competent to inquire into and try the offence. Patna High Court Cr.Misc. No.8726 of 2009 dt.05-12-2011 8 Furthermore, it is obvious from perusal of the section 179 of the Cr. P.C that if anything happens as a consequence of the offence the same may be inquired into or tried by a court within local jurisdiction such thing has been done or such consequences have ensued.
17. Now, let us see the fact of the Complaint Case no. 2534/2008. It is specific case of opposite party no.2 that her marriage was solemnized on 13.12.1996 at Marriage Hall, Raniganj district Burdwan, West Bengal and after solemnization of her marriage, she went to her matrimonial home situated at Raniganj district Burdwan, West Bengal. It is also specific case of opposite party no.2 that entire occurrence took place at her matrimonial home situated at Raniganj district Burdwan, West Bengal and after her ouster from her matrimonial home neither her husband nor any in-laws visited at her natal place i.e. Muzaffarpur. Therefore, the averments of complaint petition clearly go to show that case of the complainant does not come under the purview of section 178(b) of the Cr. P.C.
18. No doubt, section 498A of the IPC is a continuing offence but for application of section 178 ( c ) of the Cr. P.C the continuing offence must be committed in more local areas than one. So far as the case of opposite party no.2 is Patna High Court Cr.Misc. No.8726 of 2009 dt.05-12-2011 9 concerned, admittedly, neither she was tortured nor any demand was made from her by the petitioners at Muzaffarpur, Bihar. So, even if section 498A of the IPC is a continuing offence, then also, the aforesaid offence has not been committed at Muzaffarpur, Bihar.
19. Similarly, section 179 of the Cr. P.C is also not applicable in the present case because for application of section 179 of the Cr. P.C there must be consequence of an act or illegal omission. The words "consequence which has ensued"
obviously, mean "by reason of any consequence" that is consequence must be necessary ingredient of the offence and where the act itself is complete offence irrespective of any consequence which has ensued, section 179 of the Cr. P.C does not apply and at the place where act was committed determines the jurisdiction. In the present case, the alleged illegal demand and torture were made at Raniganj, Burdwan, West Bengal and, merely, after ouster from her matrimonial home the opposite party no.2 came at Muzaffarpur and she suffered there from mental agony, it can not be said that part of the alleged occurrence has also taken place at Muzaffarpur. Therefore, I am of the opinion that no consequences of the alleged occurrence have happened at Muzaffarpur, Bihar and the offence of section 498A of the IPC and 4 of the D.P. Act were completed at Patna High Court Cr.Misc. No.8726 of 2009 dt.05-12-2011 10 Raniganj district Burdwan, West Bengal and, so, I am of the considered view that section 179 of the Cr. P.C is not applicable in the present case.
20. In Y. Abraham Ajith and others vs Inspector of Police Chennai & another reported in (2004) 8 Supreme court cases 100 at para 12, the Hon'ble Supreme court has held that to decide the question of jurisdiction of a court the crucial question is as to whether any part of cause of action arose within the jurisdiction of the court concerned or not and in essence, it is the cause of action for initiation of proceedings against the accused.
21. Therefore, in view of the above stated decision of the Hon'ble Supreme court, I have no hesitation to hold that the court of Muzaffarpur, Bihar had got no jurisdiction to entertain complaint of opposite party no.2.
22. In course of hearing, a decision reported in AIR 2011 SC 1674 Sunita kumari Kashyap vs. State of Bihar & another was brought to my notice but the aforesaid decision is not applicable in the present case because admittedly, in the aforesaid decision, the husband of the complainant had given threatening of dire consequence at Gaya the natal place of the aforesaid complainant and that was the reason the Apex court of the country has held that the court at Gaya had jurisdiction to Patna High Court Cr.Misc. No.8726 of 2009 dt.05-12-2011 11 entertain the complaint filed by complainant of the aforesaid case. So far as the present case is concerned, according to the averments of the complaint petition itself, none of the part of the alleged occurrence has taken place at Muzaffarpur, Bihar.
23. On the basis of the aforesaid discussions, I am of the opinion that it is a fit case in which this court should exercise its extra ordinary power vested section 482 of the Cr. P.C because this case is squarely covered by the guideline no.6 given by the Apex court of this country in Ch. Bhajan Lal case (supra).
24. Accordingly, both the above stated criminal miscellaneous cases are allowed and entire proceedings of Complaint Case no. 2534/2008 as well as impugned order dated 5.12.2008 passed in above stated Complaint Case no. 2534/2008 pending in the court of Sub divisional Judicial Magistrate, East, Muzaffarpur are, hereby, quashed.
25. However, the learned trial court should return the complaint petition to opposite party no.2 and opposite party no.2 may file the aforesaid complaint petition before the competent court where the occurrence had taken place, if she so likes.
The 14th December, 2011 Shahid/ NAFR ( Hemant Kumar Srivastava,J)