Patna High Court - Orders
Chando Yadav & Ors vs State Of Bihar & Anr on 24 February, 2012
Author: Rajendra Kumar Mishra
Bench: Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.36115 of 2008
=====================================================
1. Chando Yadav, son of Ganesh Yadav.
2. Ganesh Yadav, son of Late Bayal Yadav.
3. Mannu Yadav, son of Ganesh Yadav.
4. Munni Yadav, son of Ganesh Yadav.
5. Piloyea Devi, daughter of Aklu Yadav.
6. Shamni Devi, wife of Ganesh Yadav.
All resident of village-Ghanghari, P.S. Bashishtha Nagar, District-
Chatra (Jharkhand).
.... .... Petitioners.
Versus
1. The State of Bihar.
2. Shilabi Devi, daughter of Bhunder Yadav, resident of village- I
awa, P.S. Roshanganj, District-Gaya.
.... .... Opposite Parties.
=====================================================
Appearance :
For the Petitioners : M/s. Ashok Kumar Sinha and Sudhi Kumar
Sinha, Advocates.
For the State : Mr. J.K. Singh, A.P.P.
For the O.P. No.2 : Mr. Rashid Izhar, Advocate.
=====================================================
CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR
MISHRA
CAV ORDER
--------------
5 24-02-2012The petitioners have approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 9.6.2006 passed by the Sub Divisional Judicial Magistrate, Sherghati, Gaya, in Complaint Case No.29 of 2006, summoning the accused-petitioners, on enquiry under Section 202 of the Code of Criminal Procedure, finding prima facie case under Sections 148, 323, 498-A, 341 and 504 of the Indian Penal Code.
2. In brief, the case is that the opposite party no.2, 2 Patna High Court Cr.Misc. No.36115 of 2008 (5) dt.24-02-2012 2 / 13 Shilabi Devi, filed the complaint petition, numbered as Complaint Case No.29 of 2006, in the court of the Sub Divisional Judicial Magistrate, Sherghati, Gaya, against the accused-petitioners alleging therein that her marriage was performed before 15-16 years with the accused-petitioner no.1, Chando Yadav, and her father had given the articles and cash according to his capacity in the marriage. She led her life two years properly at her sasural house. In the meantime, she gave birth to a female child. Thereafter, all the accused-petitioners started to torture, abuse and assault her. It is further alleged that in this regard many times panchayti was arranged and her in- laws were convinced and she, anyhow, led her life at her sasural with her daughter. In the meantime, her husband, accused- petitioner no.1, Chando Yadav, under conspiracy with other accused, performed his re-marriage with the accused-petitioner no.5, Piloyea Devi and, thereafter, she was being tortured through various modes. Lastly, on 15.1.2006, she was ousted alongwith her daughter from her sasural house by the accused snatching her personal belongings worth Rs.10,000/- by accused-petitioner no.1, Chando Yadav after breaking the lock of the box and she was asked to bring cash of Rs.50,000/- for the purpose of performing the marriage of her daughter. Thereafter, 3 Patna High Court Cr.Misc. No.36115 of 2008 (5) dt.24-02-2012 3 / 13 opposite party no.2 alongwith her daughter came to her parental house at village- Itawa situated in the district of Gaya, and narrated all the incidents in presence of the witnesses. Then on the next day, the father of the opposite party no.2 and others went to her sasural village-Ghanghari, situated in the district of Chatra (Jharkhand) and tried to convince her in-laws but they were adamant on their demand.
3. After filing of the complaint petition by the opposite party no.2, on inquiry under Section 202 of the Code of Criminal Procedure, the Sub Divisional Judicial Magistrate, Sherghati, Gaya, summoned the accused-petitioners through the impugned order dated 9.6.2006, finding prima facie case under Sections 148, 323, 498-A, 341 and 504 of the Indian Penal Code.
4. Learned counsel appearing on behalf of the petitioners made sole submission that if the allegation, as made in the complaint petition, is taken to be true for a moment, it would appear from the complaint petition that the entire occurrence took place at the matrimonial home of the opposite party no.2, situated in village-Ghanghari, P.S. Bashishtha Nagar, District-Chatra (Jharkhand). As such the court of Sherghati, Gaya, had no jurisdiction to entertain the complaint petition of the opposite party no.2. In support of his submission, learned 4 Patna High Court Cr.Misc. No.36115 of 2008 (5) dt.24-02-2012 4 / 13 counsel for the petitioners placed reliance on a judgment dated 23rd of November, 2007, of a Bench of this Court passed in Criminal Misc.No.15710 of 2007 (Sant Bilash Singh and others Vs. State of Bihar and another) as contained in Annexure-„3‟ to this application.
5. On the other hand, learned A.P.P. for the State submitted that the offence under Section 498-A of the Indian Penal Code is continuing in nature and, therefore, the court of Sherghati, Gaya, had jurisdiction to summon the accused- petitioners as the opposite party no.2 alongwith her daughter, Manju Kumari, used to reside at her Maika situated in the village-Itawa of the district of Gaya, after removal from her sasural house situated in village-Ghanghari of the district of Chatra (Jharkhand) by the accused-petitioners.
6. As in the present case, the issue is confined only to territorial jurisdiction about the criminal proceedings initiated by the opposite party no.2, hence, there is no need to go into other factual aspects. Since the Sub Divisional Judicial Magistrate, Sherghati, Gaya, on perusal of the complaint petition, solemn affirmation of the opposite party no.2 and the statements of the witnesses, as examined in course of inquiry, arrived at the conclusion that prima facie the case under Sections 148, 323, 5 Patna High Court Cr.Misc. No.36115 of 2008 (5) dt.24-02-2012 5 / 13 498-A, 341 and 504 of the Indian Penal Code is made out against the accused-petitioners, it is desirable to refer to the provision of Section 498-A of the Indian Penal Code relating to cruelty at the hands of the husband or relatives of the husband of a women and also Sections 177-179 of Chapter-XIII of the Code of Criminal Procedure, which deal with the jurisdiction of the criminal courts in inquiries and trials.
Section 498-A of the Indian Penal Code is read as under:
"498-A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.-For the purpose of this section, "cruelty"
means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."6 Patna High Court Cr.Misc. No.36115 of 2008 (5) dt.24-02-2012
6 / 13 Sections 177-179 of Chapter XIII of the Code of Criminal Procedure are read as under:
"177. Ordinary place of inquiry and trial.-Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.
178. Place of inquiry or trial.-(a) When it is uncertain 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 a 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.
179. Offence triable where act is done or consequence ensues.- 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."
7. It is clear from the above provisions of Sections 177- 179 of Chapter XIII of the Code of Criminal Procedure that normally the offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. When it is uncertain in which of several local areas an offence 7 Patna High Court Cr.Misc. No.36115 of 2008 (5) dt.24-02-2012 7 / 13 was committed or where an offence was committed partly in one local area and partly in another or where an offence is a continuing one, and continues to be committed in more than one local areas or the offence consist of several acts done in different local areas, as per Section 178 the Court having jurisdiction over any of such local areas is competent to inquire into and try the offence. Section 179 makes it clear that if anything happened as a consequence of the offence, the same may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence had ensued.
8. In the present case, the opposite party no.2 has filed the complaint petition in the court of the Sub Divisional Judicial Magistrate, Sherghati, Gaya, stating about her marriage with the accused-petitioner no.1, Chando Yadav, before 15-16 years and stated that she led her life about two years properly at the sasural house, situated in the village-Ghanghari of the District of Chatra (Jharkhand) and she gave birth to a female child. Thereafter, all the accused-petitioners started to abuse and torture her. Anyhow, she led her life alongwith her daughter, Manju Kumari, at the sasural house for sometimes. In that course, her husband, accused-petitioner no.1, Chando Yadav, performed remarriage with the accused-petitioner no.5, Piloyea Devi, and lastely, on 8 Patna High Court Cr.Misc. No.36115 of 2008 (5) dt.24-02-2012 8 / 13 15.1.2006, she alongwith her daughter, Manju Kumari, was ousted from her sasural house, situated in the village-Ghanghari of the District of Chatra (Jharkhand) by her husband, the accused-petitioner no.1, Chando Yadav. Thereafter, she alongwith her daughter, Manju Kumari, went to her Maika, situated in the village-Itawa of the district of Gaya and narrated all the incidents in presence of the witnesses. Thereafter, her father alongwith others on the next day went to her matrimonial home, situated in the village-Ghanghari of the district of Chatra (Jharkhand) and tried to convince the accused-persons but they were adamant on their demand and, ultimately, the opposite party no.2 alongwith her daughter started to live at her Maika, situated in the village-Itawa of the District of Gaya.
9. On going through the provision of Section 498-A of the Indian Penal Code referred to above, it is clear that harassment and cruelty at the hands of the husband or relatives of the husband of a woman is punishable with imprisonment for a term which may extend to three years and also with fine. In explanation appended to Section 498-A of the Indian Penal Code, not only the physical but the mental cruelty has also been included as an act of the offence.
10. In the judgment dated 23rd of November, 2007 9 Patna High Court Cr.Misc. No.36115 of 2008 (5) dt.24-02-2012 9 / 13 passed in Criminal Misc. No.15710 of 2007 (Sant Bilash Singh and others Vs. State of Bihar and another) as relied upon by the learned counsel for the petitioners, a Bench of this Court relying on a decision of the Hon‟ble Apex Court in the case of Y. Abraham Ajith vs. Inspector of Police {(2004) 8 SCC 100} and in the case of Ramesh Vs. State of Tamil Nadu {(2005)3 SCC 507} held that prima facie none of the ingredients constituting the offence can be said to have occurred within the local jurisdiction of the Gaya Court and almost all the allegations pertain to alleged acts of cruelty while the complainant was in the marital home at Hajipur and even the alleged occurrence of her box containing jewellary and clothes being snatched from her took place at Hajipur within the judgeship of Vaishali and, accordingly, quashed the proceeding of the complaint case filed in the jurisdiction of the Gaya court.
11. In the case of Sunita Kumari Kashyap Vs. State of Bihar & Anr. {2011(2) PLJR 191 (SC)} similar issue was considered by the Hon‟ble Apex Court. In the said case, Sunita Kumari Kashyap, was the appellant before the Hon‟ble Apex Court, who had lodged the F.I.R. bearing No.66 of 2007 at Magadh Medical College Police Station, Gaya, under Sections 498-A and 406/34 of the Indian Penal Code and Sections 3/4 of 10 Patna High Court Cr.Misc. No.36115 of 2008 (5) dt.24-02-2012 10 / 13 the Dowry Prohibition Act in which on submission of the chargesheet, the Chief Judicial Magistrate, Gaya, had taken the cognizance of the offence under the aforesaid Sections and had transferred the record to the court of the Sub Divisional Judicial Magistrate,Gaya, where an objection was raised by the husband and in-laws, who were accused in that case, about the territorial jurisdiction of the court at district-Gaya, but the same was rejected. Thereafter, Criminal Misc. Nos.42478 of 2009 and 45153 of 2009 were filed by the in-laws and husband respectively of Sunita Kumari Kashyap before this Court, which were allowed by different Benches of this Court vide order dated 19.3.2010 and 29.4.2010 respectively, holding the lack of territorial jurisdiction. The aforesaid orders, i.e., the order dated 19.3.2010 passed in Criminal Misc. No.42478 of 2009 and the order dated 29.4.2010 passed in Criminal Misc. No.45153 of 2009, were set aside by the Hon‟ble Apex Court. The Hon‟ble Apex Court while setting aside the aforesaid orders, in its decision, in the case of Sunita Kumari Kashyap (Supra), held in paragraphs-10 and 11, as under:
"10. Mr. Sanyal also relied on a decision of this Court in Bhura Ram and Others vs. State of Rajasthan and Another, (2008) 11 SCC 103 wherein following the decision in Y. Abraham Ajith and Others (supra), this Court held that 11 Patna High Court Cr.Misc. No.36115 of 2008 (5) dt.24-02-2012 11 / 13 "cause of action" having arisen within the jurisdiction of the court where the offence was committed, could not be tried by the court where no part of offence was committed. For the same reasons, as mentioned in the earlier paragraph, while there is no dispute as to the proposition in view of the fact that in the case on hand, the offence was a continuing one and the episode at Gaya was only a consequence at the continuing offence of harassment and ill-treatment meted out to the complainant, clause (c) of Section 178 is attracted. In view of the above reason, both the decisions are not applicable to the facts of this case and we are unable to accept the stand taken by Mr. Sanyal.
11. We have already adverted to the details made by the appellant in the complaint. In view of the specific assertion by the appellant-wife about the ill-treatment and cruelty at the hands of the husband and his relatives at Ranchi and of the fact that because of their action, she was taken to her parental home at Gaya by her husband with a threat of dire consequences for not fulfilling their demand of dowry, we hold that in view of Sections 178 and 179 of the Code, the offence in this case was a continuing one having been committed in more local areas and one of the local areas being Gaya, the learned Magistrate at Gaya has jurisdiction to proceed with the criminal case instituted therein. In other words, the offence was a continuing one and the episode at Gaya was only a consequence of continuing offence of harassment of ill treatment meted out to the complainant, clause (c) of Section 178 is attracted. Further, from the allegations in the complaint, it appears to us that it is a continuing offence of ill treatment and humiliation meted out to the appellant in the hands of all the accused persons and in such 12 Patna High Court Cr.Misc. No.36115 of 2008 (5) dt.24-02-2012 12 / 13 continuing offence, on some occasion all had taken part and on other occasion one of the accused, namely, husband had taken part, therefore, undoubtedly clause (c) of Section 178 of the Code is clearly attracted."
12. From the aforesaid facts and the circumstances of the case, it is no doubt that the harassment and cruelty as alleged was caused to the opposite party no.2 at the hands of the accused-petitioners at her sasural situated in the district of Chatra (Jharkhand) and she alongwith her daughter, Manju Devi, was driven out from there by them by snatching her personal belongings and she alongwith her daughter, Manju Kumari, ultimately, reached at her Maika in the district of Gaya and started to reside there. As such, while the cause arose in the district of Chatra (Jharkhand), but the effect of the cause was ensued and was continuing in the district of Gaya, due to the mental cruelty suffered continuously by the opposite party no.2 in view of the provisions of Sections 178 (c) and 179 of Chapter- XIII of the Code of Criminal Procedure. As such, I find no illegality in the impugned order dated 9.6.2006 passed by the Sub Divisional Judicial Magistrate, Sherghati, Gaya, in Complaint Case No.29 of 2006, amounting to abuse of the process of the Court.
13 Patna High Court Cr.Misc. No.36115 of 2008 (5) dt.24-02-2012
13 / 13
13. In the result, this application, being devoid of merit, is dismissed.
(Rajendra Kumar Mishra, J) P.S./-