Patna High Court - Orders
Shambhu Prasad @ Shambhu Kumar & Ors vs State Of Bihar & Ors on 22 November, 2012
Author: Rajendra Kumar Mishra
Bench: Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.19353 of 2010
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1. Shambhu Prasad @ Shambhu Kumar.
2. Subodh Kumar.
Both sons of Om Prakash Sah.
3. Om Prakash Sah, son of Late Devi Sah.
4. Smt. Indu Devi, wife of Om Prakash Sah.
5. Bharti Devi, wife of Subodh Kumar.
All residents of village-Main Road Teghra, P.S. Teghra, District-
Begusarai.
.... .... Petitioners.
Versus
1. The State of Bihar.
2. Sampurna Bhaskar, wife of Sudhir Kumar Sah, resident of
village-Teghra, P.S. Teghra, District-Begusarai. Presently
resident of village-Makardahi Ghat, Ward No.18, District-
Samastipur.
3. Sudhir Kumar Sah, son of Om Prakash Sah, resident of village-
Main Road, Teghra, P.S. Teghra, District-Begusarai. Presently
residing at village-Makardahi Ghat, Ward No.18, District-
Samastipur.
.... .... Opposite Parties.
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Appearance :
For the Petitioners. : Mr. Pramod Manbansh, Advocate.
For the Opposite Party No.2 : M/s. Abhay Shanker Singh, Amit Kr.
Mishra and R.S. Vidyarthi, Advocates.
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CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR
MISHRA
CAV ORDER
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6 22-11-2012The petitioners have approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 3.8.2009 passed in Complaint Case No.592 of 2009 by the Sub Divisional Judicial Magistrate, Samastipur, whereby all the accused, named in the complaint petition, including the petitioners have been summoned, on enquiry under Section 202 of the Code of Criminal Procedure, finding prima facie case 2 Patna High Court Cr.Misc. No.19353 of 2010 (6) dt.22-11-2012 2 / 11 under Sections 498-A and 323 of the Indian Penal Code.
2. It appears that the opposite party no.2, Sampurna Bhaskar, filed the Complaint Case No.592 of 2009 with the allegation that her marriage was performed with the accused no.1, Sudhir Kumar Sah (opposite party no.3), on 12.3.2007 according to Hindu Customs and at the time of marriage cash of Rs.1,51,000/-, ornaments, clothes and utensils were given by her parents. In spite of that on the date of marriage the father and both brothers of groom created an odd situation demanding the refrigerator and a motorcycle. Her Maika people arranged cash of Rs.16,000/- and gave the same for refrigerator but demand of motorcycle could not be fulfilled for which her father-in-law (petitioner no.3) told to provide motorcycle at the time of second marriage. After the marriage, she went to her sasural in Bidai and stayed there for about one month and, thereafter, returned to her Maika. Since the father of the opposite party no.2 had died in the year 2003, so her family was being looked after by her sister. Due to bad economical condition of her Maika, the demand of motorcycle could not be fulfilled at the time of second marriage and due to that reason, she was being tortured by her in- laws/accused through various modes on petty matters. Initially, her husband was mum but the parents of her father and brothers 3 Patna High Court Cr.Misc. No.19353 of 2010 (6) dt.22-11-2012 3 / 11 used to give threatening to him to live separately with his wife. Due to that reasons, her husband also indulged in the misdeed of his family members in respect to demand. Lastly, on 3.5.2009, she was removed from her sasural house by her in-laws forcibly keeping her ornaments and personal belongings.
3. After filing of the aforesaid complaint petition by the opposite party no.2, Sampurna Bhaskar, on inquiry under Section 202 of the Code of Criminal Procedure, the Sub Divisional Judicial Magistrate, Samastipur, summoned all the accused, named in the complaint petition, including the petitioners finding prima facie case under Sections 498-A and 323 of the Indian Penal Code through the impugned order dated 3.8.2009.
4. The sole argument as advanced by the learned counsel for the petitioners is that from perusal of the complaint petition, it is apparent that the occurrence as alleged had taken place in the sasural of the opposite party no.2, Sampurna Bhaskar, situated in the district of Begusarai and, as such, the court of Samastipur had no territorial jurisdiction to summon the accused, named in the complaint petition, including the petitioners as per the provision of Section 177 of the Code of Criminal Procedure.
5. On the other hand, learned counsel appearing on 4 Patna High Court Cr.Misc. No.19353 of 2010 (6) dt.22-11-2012 4 / 11 behalf of the opposite party no.2 made submission that from perusal of the complaint petition, it is apparent that the demand of refrigerator and motorcycle was made at the time of the marriage of the opposite party no.2 at her Maika situated in the district of Samastipur, as such, the learned Sub Divisional Judicial Magistrate, Samastipur, has territorial jurisdiction to proceed with the complaint case as filed by the opposite party no.2.
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, Samastipur, 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 498-A and 323 of the Indian Penal Code is made out against the accused, named in the complaint petition, including the 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. 5 Patna High Court Cr.Misc. No.19353 of 2010 (6) dt.22-11-2012
5 / 11 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."
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 6 Patna High Court Cr.Misc. No.19353 of 2010 (6) dt.22-11-2012
6 / 11 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 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 7 Patna High Court Cr.Misc. No.19353 of 2010 (6) dt.22-11-2012 7 / 11 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 Chief Judicial Magistrate, Samastipur, narrating about her marriage with the accused no.1, Sudhir Kumar Sah (opposite party no.3) on 12.3.2007 and stated that after the second marriage, on reaching her sasural situated in the district of Begusarai, she was being tortured by her in-laws due to non fulfillment of their demand of motorcycle, which was made by them at the time of her marriage. Lastly, on 3.5.2009, the opposite party no.2 was removed from her sasural house by her in-laws forcibly keeping her ornaments and personal belongings and, ultimately, she started to reside her Maika situated in the district of Samastipur.
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.
8 Patna High Court Cr.Misc. No.19353 of 2010 (6) dt.22-11-2012
8 / 11
10. 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 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 9 Patna High Court Cr.Misc. No.19353 of 2010 (6) dt.22-11-2012 9 / 11 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 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 10 Patna High Court Cr.Misc. No.19353 of 2010 (6) dt.22-11-2012 10 / 11 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 Code is clearly attracted."
11. 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 all the accused, named in the complaint petition, including the petitioners at her sasural situated in the district of Begusarai and she was driven out from there by them by snatching her personal belongings and she, ultimately, started to reside at her Maika situated in the district of Samastipur. As such, while the cause arose at Begusarai, but the effect of the cause was ensued and was continuing in the district of Samastipur, 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. 11 Patna High Court Cr.Misc. No.19353 of 2010 (6) dt.22-11-2012
11 / 11 As such, I find no illegality in the impugned order dated 3.8.2009 passed in Complaint Case No.592 of 2009 by the Sub Divisional Judicial Magistrate, Samastipur, amounting to abuse of the process of the Court.
12. In the result, this application, being devoid of merit, is dismissed.
(Rajendra Kumar Mishra, J) P.S./-