Patna High Court - Orders
Pramod Malakar & Ors vs The State Of Bihar & Anr on 11 May, 2012
Author: Rajendra Kumar Mishra
Bench: Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.29730 of 2008
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1. Pramod Malakar.
2. Niranjan Malakar.
Both sons of Bhola Malakar.
3. Sonia Devi, wife of Bhola Malakar.
4. Bhola Malakar, son of Late Lahsan Malakar.
5. Kiran Devi, wife of Arbind Malakar, daughter of Bhola Malakar.
All residents of village-Kumhari, P.S. Kadwa, District-Katihar.
.... .... Petitioners.
Versus
1. The State of Bihar.
2. Nilu Devi, wife of Pramod Malakar, resident of village-Kumhari,
P.S. Kaduwa, District-Katihar, At present village-Tirahut Bitta,
P.S. Araria, District-Araria.
.... .... Opposite Parties.
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Appearance :
For the Petitioners : Mr. Baidyanath Prasad, Advocate.
For the State : Dr. Mayanand Jha, A.P.P.
For the O.P. No.2 : Mr. Sanjay Kumar Sharma, Advocate.
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CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR
MISHRA
CAV ORDER
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7 11-05-2012The petitioners have approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 12.1.2008 passed in Complaint Case No.C-2620 of 2007 by the Sub Divisional Judicial Magistrate, Araria, summoning the accused-petitioners, on enquiry under Section 202 of the Code of Criminal Procedure, finding prima facie case under Section 498-A of the Indian Penal Code.
2. The brief facts, leading to this application, are that the opposite party no.2, Nilu Devi, filed the Complaint Case No.C-2620 of 2007 against the petitioners and one Dilip Malakar 2 Patna High Court Cr.Misc. No.29730 of 2008 (7) dt.11-05-2012 2 / 12 alleging therein that her marriage was performed with the petitioner no.1, Pramod Malakar, in the year 2001 according to Hindu customs. At the time of her marriage, her father had given the clothes, ornaments, furniture, house utensils etc. to her and clothes, chain, watch, television, bicycle etc. worth of Rs.35- 40 thousand to her husband. Just before two days of her marriage, her father-in-law, Bhola Malakar, petitioner no.4, made demand of cash of Rs.25,000/- as Barat expenses. Her father, finding no way, took the loan of Rs.11,000/- and handed over the same to him as Barat expenses. After marriage, the opposite party no.2 went to her Sasural, where she was kept properly for some days but, thereafter, she was being tortured through various modes for demand of cash of Rs.25,000/- by the accused persons. Her mother-in-law, Sonia Devi, petitioner no.3 and Nanad, Kiran Devi, petitioner no.5, who was residing permanently at her Maika, used to torture and assault her brutally and on intervention of the neighbours, all the accused persons used to say them that she is suffering from the ailment of epilepsy. After the marriage, whenever the opposite party no.2 came to her Maika, her husband, Pramod Malakar, petitioner no.1, used to come for her Bidai and gave pressure on her father to give cash of Rs.25,000/-. Her husband, Pramod Malakar, 3 Patna High Court Cr.Misc. No.29730 of 2008 (7) dt.11-05-2012 3 / 12 petitioner no.1, was labourer at Delhi-Punjab and whenever he made his visit at his village home, on the instigation of the other family members, he used to assault her and the petitioner nos.3 and 4, namely, Sonia Devi and Bhola Malakar, the mother-in- law and father-in-law, used to put pressure on him to perform remarriage, whereas her dewar, Niranjan Malakar, the petitioner no.2, had an evil eye on her and on making complaint by her, she was being brutally assaulted by the accused persons. On 28.8.2007, on the occasion of the festival of Raksha Bandhan, when her brother, Manoj Kumar Malakar, reached at her Sasural then her husband, Pramod Malakar, petitioner no.1, also made demand of cash of Rs.25,000/- and asked him to take her sister and he will perform his remarriage in case of non fulfillment of demand. While her brother made request showing inability to fulfill the demand of cash of Rs.25,000/- but the other family members of her Sasural house were adamant on the demand and brutally assaulted her brother and driven out her from Sasural house snatching her personal belongings. Thereafter, the opposite party no.2 came to her Maika alongwith his brother and narrated all the incidents to her family members and the villagers. While the father of the opposite party no.2 alongwith the witnesses went to her Sasural for Panchayati but the accused 4 Patna High Court Cr.Misc. No.29730 of 2008 (7) dt.11-05-2012 4 / 12 persons were adamant on the demand and humiliated them.
3. After filing of the aforesaid complaint petition by the opposite party no.2, Nilu Devi, on enquiry under Section 202 of the Code of Criminal Procedure, the Sub Divisional Judicial Magistrate, Araria, summoned the accused-petitioners, finding prima facie case under Section 498-A of the Indian Penal Code through the impugned order dated 12.1.2008, which is impugned in the present application.
4. Learned counsel appearing on behalf of the petitioners made sole submission that it would appear from the complaint petition that the entire occurrence, as alleged, took place in the Sasural house of the opposite party no.2, Nilu Devi, situated in district of Katihar but the opposite party no.2, Nilu Devi, filed the complaint case in the district of Araria, where her Maika is situated. As such, the impugned order, summoning the petitioners by the court of the Sub Divisional Judicial Magistrate, Araria, is without jurisdiction and placed reliance on the decision of the Hon'ble Apex Court in the case of Y. Abraham Ajith and others Vs. Inspector of Police, Chennai and another {(2004) 8 Supreme Court Cases 100}.
5. On the other hand, learned counsel for the opposite party no.2 submitted that the offence under Section 498-A of the 5 Patna High Court Cr.Misc. No.29730 of 2008 (7) dt.11-05-2012 5 / 12 Indian Penal Code is continuing in nature and, therefore, the court of Araria, had jurisdiction to summon the accused- petitioners as the opposite party no.2 started to reside at her Maika situated in the district of Araria after the alleged occurrence.
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, Araria, 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 Section 498-A 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 6 Patna High Court Cr.Misc. No.29730 of 2008 (7) dt.11-05-2012 6 / 12 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."
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, 7 Patna High Court Cr.Misc. No.29730 of 2008 (7) dt.11-05-2012
7 / 12 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 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 Patna High Court Cr.Misc. No.29730 of 2008 (7) dt.11-05-2012
8 / 12
8. In the present case, the opposite party no.2 has filed the complaint petition in the court of the Chief Judicial Magistrate, Araria, narrating about her marriage with the petitioner no.1, Pramod Malakar, and stated that on reaching at her Sasural, she was being assaulted by the accused persons through various modes for demand of cash of Rs.25,000/-. It has also been alleged by the opposite party no.2 that whenever her husband used to go to her Maika, he gave pressure on her father to give cash of Rs.25,000/-. The opposite party no.2 has further alleged in her complaint petition that on 28.8.2007 when her brother had come to her Sasural on the occasion of the festival of Raksha Bandhan, her husband, Pramod Malakar, made demand of cash of Rs.25,000/- and all the accused persons assaulted him brutally and she was also driven out from her Sasural house by them by snatching her personal belongings. Ultimately, she alongwith her brother went to her Maika situated in the district of Araria and narrated all the incidents to her family members and the villagers. Thereafter, the father of the opposite party no.2 alongwith the witnesses went to her Sasural for Panchayati but the accused persons were adamant on their demand and humiliated them also.
9. On going through the provision of Section 498-A of 9 Patna High Court Cr.Misc. No.29730 of 2008 (7) dt.11-05-2012 9 / 12 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 case of Y. Abraham Ajith (supra), on which the learned counsel for the petitioners has placed reliance, the Hon'ble Apex Court quashed the proceeding holding that the inevitable conclusion is that no part of cause of action arose in Chennai and, therefore, the Magistrate concerned had no jurisdiction to deal with the matter.
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 the Dowry Prohibition Act in which on submission of the chargesheet, the Chief Judicial Magistrate, Gaya, had taken the 10 Patna High Court Cr.Misc. No.29730 of 2008 (7) dt.11-05-2012 10 / 12 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 "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 11 Patna High Court Cr.Misc. No.29730 of 2008 (7) dt.11-05-2012 11 / 12 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 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 12 Patna High Court Cr.Misc. No.29730 of 2008 (7) dt.11-05-2012 12 / 12 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 Katihar and she was driven out from there by them by snatching her personal belongings and she, ultimately, reached at her Maika alongwith his brother situated in the district of Araria. As such, while the cause arose at Katihar, but the effect of the cause was ensued and was continuing in the district of Araria, 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 12.1.2008 passed by the Sub Divisional Judicial Magistrate, Araria, in Complaint Case No.C-2620 of 2007, amounting to abuse of the process of the Court.
13. In the result, this application, being devoid of merit, is dismissed.
(Rajendra Kumar Mishra, J) P.S./-