Patna High Court
Smt. Baleshwari Devi vs Bikram Singh on 5 March, 1968
Equivalent citations: AIR1968PAT383, 1968CRILJ1296, AIR 1968 PATNA 383, 1968 BLJR 781
ORDER K.K. Dutta, J.
1. This reference under Section 438 of the Code of Criminal Procedure has been made by the Additional Sessions Judge of Arrah for setting aside the order passed on the 5th November, 1966, in a proceeding under Section 488 of the Code of Criminal Procedure, whereby the Magistrate has held that the proceeding is not maintainable in his court as the opposite party resides in another sub-division of the some district (the date of the order has been wrongly mentioned as 3-11-66. in the letter of reference of the Additional Sessions Judge).
2. It appears that the petitioner at whose instance the reference has been made was residing at the time of filing her petition under Section 488, Code of Criminal Procedure, at a place within the Buxar sub-division and the opposite party, who is admittedly her husband, was residing at a place within Sasaram sub-division. Both Sasaram and Buxar sub-divisions appertain to the same district, that is the Shahabad district. The opposite party filed an objection petition in the court of the Magistrate to the effect that as he resides within Sasaram Sub-division and the petitioner had admittedly last resided with him in that very subdivision, the case was not maintainable in any court within the Buxar subdivision. This contention was accepted by the learned Magistrate and he accordingly directed the petitioner to apply under Section 488, Code of Criminal Procedure, to the Sub-divisional Magistrate under whose jurisdiction her husband was residing The petitioner moved the Sessions Judge against this order and the learned Additional Sessions Judge, who heard the matter, has made the reference for settina aside the above order on the ground that the Magistrate at Buxar had jurisdiction to entertain the proceeding in view of the provision of Sub-section (8) of Section 488, Code of Criminal Procedure.
3. Sub-section (8) of Section 488, Coda of Criminal Procedure, provides as follows:
"Proceedings under this Section may be taken against any person in any district where he resides or is, or where he last resided with his wife, or, as the case may be, the mother of the illegitimate child."
It appears that there are some conflicting decisions as between the Madras High Court and the Bombay High Court on the interpretation of this sub-section. In the case of Shantabai v Vishnupant Atmaram, AIR 1965 Bom 107 it was held by the Bombay High Court that in view of the provisions of this sub-section a proceeding under Section 488, Code of Criminal Procedure, could be instituted at any competent court within the district in which the husband resides or the district, where he last resided with his wife, or, as the case may be, the mother of the illegitimate child on whose behalf such an application has been filed. The Madras High Court has taken a different view in the case of Sakuntala v. Thirumalayya: (1966) 2 Mad LJ 326. It was held in that case that in view of the provisions of subsection (8) of Section 488, Code of Criminal Procedure, read with that of Section 12 of the same Code, the court at which such an application can be filed must not only be a court in the district in which the husband resides or last resided with his wife or, as the case may be, the mother of the illegitimate child, but must also have territorial jurisdiction over the place in which the husband resides or last resided with his wife, or, as the case may be, the mother of the illegitimate child. The view taken by the Madras High Court does not, however, appear to me to be correct.
As will appear from the provisions of Section 12 of the Code of Criminal Procedure, the territorial jurisdiction of every Magistrate in a district extends throughout the district, Sub-section (1) of that Section provides that the State Government or the District Magistrate subject to the control of the State Government, may, from time to time define local areas within which such Magistrates may exercise all or any of the powers with which they may respectively be in invested under the Code and Sub-section (2) provides that except where the powers have been defined the jurisdiction and powers of such Magistrate shall extend throughout the district. In the present case no copy of the notification under which the Magistrate concerned was posted in the Buxar sub-division has been produced to show that his jurisdiction was confined to the limits of the Buxar sub-division under the order of the State Government when he was posted at this place, nor is there anything to show that his jurisdiction was subsequently limited to any particular area under the orders of the District Magistrate. Even assuming that there has been any such order whereby his territorial jurisdiction has been confined to the Buxar Sub-Divi-sion that does not affect his power to entertain a proceeding under Section 488, Code of Criminal Procedure.
The only limitations that have been imposed by this Code for exercise of jurisdiction in proceedings under Section 488, Code of Criminal Procedure, are (1) that the Magistrate entertaining the proceedings must be either the District Magistrate or Presidency Magistrate or Magistrate of the first class as provided in Sub-section (1) of Section 488 Code of Criminal Procedure and (2) that such proceedings can be taken against a person only in the district wherein he resides or is, or, where he last resided with his wife, or, as the case may be, the mother of the illegitimate child as provided in Sub-section (8). There is no provision in the Code that the place where the husband resides or is, or, where he last resided with his wife or the mother of the illegitimate child must also be within the territorial jurisdiction of the Magistrate concerned In this connection it may be jointed out that the provisions of Section 177 Code of Criminal Procedure which provides that every offence shall ordinarily be inquired into and tried by a court within the local limits of whose jurisdiction it was committed, has no bearing so far as proceedings under Section 488 of the Code are concerned as such proceedings do not relate to the commission of any offence.
In view of the absence of any specific provision in the Code of Criminal Procedure corresponding to Section 177 restricting the filing of hearing of proceedings under Section 488 Code of Criminal Procedure, to a court within whose territorial jurisdiction the husband resides or is it is not possible to accept the contention that the husband must be residing or must have last resided with his wife, or, as the case may be, the mother of the illegitimate child within the territorial jurisdiction of the magistrate concerned in order that such a magistrate may have jurisdiction to entertain the proceeding On the contrary, in view of the specific provision incorporated in Sub-section (8) of Section 488, Code of Criminal Procedure, any magistrate of the class referred to in Sub-section (1) of Section 488 is competent to entertain such a proceeding provided the condition laid down in Sub-section (8) is also satisfied, that is, provided the husband resides or is, or last resided with his wife or the mother of the illegitimate child within the district in which such magistrate is functioning.
4. I am, therefore, quite unable to accept the contention raised on behalf of the opposite party that the Magistrate at Buxar had no jurisdiction to entertain the above proceeding. The present reference is accordingly accepted and the order dated the 5th November, 1966, as passed by the Magistrate is hereby set aside and he is directed to dispose of the petition under Section 488, Code of Criminal Procedure, in accordance with law.