Patna High Court - Orders
Nandu Hari vs State Of Bihar & Anr on 14 February, 2012
Author: Rajendra Kumar Mishra
Bench: Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.37617 of 2008
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Nandu Hari, son of Sri Sahdeo Hari, resident of village-Ayodhiyaganj,
Kurshela, P.S. Kurshela, District-Katihar.
.... .... Petitioner.
Versus
1. The State of Bihar.
2. Mona Devi, wife of Sri Nandu Hari, daughter of Sahdeo Hari,
resident of Mohalla-Tilka Manjhi, B.R. Ambedkar Road, P.S.
Tilkamanjhi, District-Bhagalpur.
.... .... Opposite Parties.
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Appearance :
For the Petitioner: M/s. Bhola Prasad and Mr. Tarun Prasad Mandal,
Advocates.
For the O.P. No.2: Mr. Dhananjay Kumar Pandey, Advocate.
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CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR
MISHRA
CAV ORDER
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5 14-02-2012The petitioner has approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 19.9.2005 passed by the Sub Divisional Judicial Magistrate, Bhagalpur, in Complaint Case No.1070 of 2004, summoning the accused, named in the complaint petition, including the petitioner under Section 204 of the Code of Criminal Procedure, on inquiry, finding prima facie case under Section 498-A of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act.
2. In brief, the case is that the opposite party no.2, Mona Devi, filed the Complaint Case No.1070 of 2004, alleging therein that her marriage with the accused-petitioner was 2 Patna High Court Cr.Misc. No.37617 of 2008 (5) dt.14-02-2012 2 / 12 performed on 24.4.1999 at her parental house, Tilkamanjhi at Bhagalpur, according to Hindu Customs. At the time of marriage, cash, ornaments and households articles were given to her but in spite of that her father-in-law became annoyed for not providing almirah and he, anyhow, was convinced and Rs.4000/- was given to him for the same. After her Bidai, she came at her sasural village-Ayodhyaganj Kursela from where she went with her husband at Lal Maati Guwahati, where her husband was employed. While she was kept some days properly but thereafter she was being tortured for cash Rs.25000/- and a motorcycle by her father-in-law, mother-in-law, brother-in-law, sister-in-law and husband. Anyhow, she stayed there but her in- laws started to make conspiracy to oust her from sasural house. It is further alleged by the opposite party no.2 that she sent information to her father regarding the aforesaid demand of dowry and torturing for the same. Thereafter, her father gave cash Rs.10,000/- and Rs.5000/- to her husband and then she remained for some days there peacefully but, thereafter, the accused persons again started making demand of cash and a motorcycle. In the meantime, she conceived pregnancy. When her husband and in-laws came to know about her pregnancy, then she was asked by them to go to her Maika for delivery and 3 Patna High Court Cr.Misc. No.37617 of 2008 (5) dt.14-02-2012 3 / 12 they also told her to give information to her father. On receiving aforesaid information, her father sent to her brother for her Bidai and she came to her parental house at Bhagalpur in Bidai but her all personal belongings and ornaments were kept by her husband and mother-in-law. After reaching at her Maika at Bhagalpur, she gave birth to a male child on 27th of August, 2003 but none had come from her sasural house nor any information was received from there in spite of sending the letters by her. It is also alleged by the opposite party no.2 that thereafter her father and brother went to Guwahati on 30.6.2004 and tried to convince her husband and in-laws then they put condition to bring her in Bidai on payment of Rs.25000/- and a motorcycle. Since her father was not in service, so he could not fulfill the demand and she was not taken to her sasural in Bidai by her husband and in- laws and due to that reason, she was suffering mentally and physically at her Maika at Bhagalpur.
3. After filing of the aforesaid complaint petition by the opposite party no.2, the court of the Sub Divisional Judicial Magistrate, Bhagalpur, on enquiry, summoned the accused, named in the complaint petition, including the petitioner, under Section 204 of the Code of Criminal Procedure, finding prima facie case under Section 498-A of the Indian Penal Code and 4 Patna High Court Cr.Misc. No.37617 of 2008 (5) dt.14-02-2012 4 / 12 Sections 3/4 of the Dowry Prohibition Act.
4. The sole argument as advanced by the learned counsel for the petitioner was that from the complaint petition, it is apparent that the occurrence as alleged took place at Lal Maati, Guwahati, where the petitioner used to reside in connection with his job. As such, the court of Bhagalpur had no jurisdiction to summon the accused-petitioner with respect to the alleged occurrence said to have taken place at Lal Maati, Guwahati. In support of his submission, learned counsel for the petitioner also placed reliance on a decision of a Bench of this Court rendered in Shailendra Kumar Singh Vs. The State of Bihar and another {2009(4) PLJR 189}.
5. On the other hand, learned counsel appearing for the opposite party no.2 made submission that the offence under Section 498-A of the Indian Penal Code is continuing in nature and, therefore, the court of Bhagalpur, had jurisdiction to summon the accused-petitioner as the opposite party no.2 used to reside at her Maika situated in the district of Bhagalpur after the alleged occurrence and suffering mental cruelty due to demand of cash and a motorcycle in dowry by the accused persons including the petitioner.
6. As in the present case, the issue is confined only to 5 Patna High Court Cr.Misc. No.37617 of 2008 (5) dt.14-02-2012 5 / 12 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, Bhagalpur, 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 and Sections 3/4 of the Dowry Prohibition Act is made out against the accused-petitioner, 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 6 Patna High Court Cr.Misc. No.37617 of 2008 (5) dt.14-02-2012
6 / 12 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, 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 7 Patna High Court Cr.Misc. No.37617 of 2008 (5) dt.14-02-2012
7 / 12 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. In the present case, the opposite party no.2 has filed the complaint petition in the court of the Chief Judicial Magistrate, Bhagalpur, which was transferred to the court of the Sub Divisional Judicial Magistrate, Bhagalpur, for inquiry, narrating about her marriage with the petitioner on 24.4.1999 at 8 Patna High Court Cr.Misc. No.37617 of 2008 (5) dt.14-02-2012 8 / 12 her parental house at Tilka Manjhi at Bhagalpur. The opposite party no.2 has also stated in the complaint petition that at the time of her marriage, her father-in-law had become annoyed due to not providing of almirah and he was convinced on giving Rs.4000/- and, thereafter, she was taken in Bidai at her sasural village-Ayodhyaganj Kurshela, from where she was taken at Lal Maati, Guwahati, where her husband was in service but she was sent at her Maika under conspiracy to give the first delivery at her Maika but she was not taken in Bidai to her sasural again by her in-laws due to non fulfillment of dowry demand of cash and a motorcycle and, thereafter, she started to reside at her Maika situated in the District of Bhagalpur.
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 case of Shailendra Kumar Singh (Supra), as relied upon by the learned counsel for the petitioners, a Bench 9 Patna High Court Cr.Misc. No.37617 of 2008 (5) dt.14-02-2012 9 / 12 of this Court relying on a decision of the Hon'ble Apex Court in the case of Y. Abraham Ajith & Ors. vs. Inspector of Police, Chennai & Anr. {(2004) 8 SCC 100} and in the case of Md. Kalim & Ors. vs. The State of Bihar & Anr. {2009(1) PLJR 111} has held that the cause of action has arisen in the district of Samastipur which is evident from a broad reading of the allegations made in the F.I.R. and not in the district of Khagaria, where F.I.R. had been lodged and, accordingly, quashed the cognizance order of the Chief Judicial Magistrate, Khagaria.
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 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 10 Patna High Court Cr.Misc. No.37617 of 2008 (5) dt.14-02-2012 10 / 12 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 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, 11 Patna High Court Cr.Misc. No.37617 of 2008 (5) dt.14-02-2012 11 / 12 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 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 12 Patna High Court Cr.Misc. No.37617 of 2008 (5) dt.14-02-2012 12 / 12 was caused to the opposite party no.2 at the hands of the accused, named in the complaint petition, including the petitioner at Lal Maati, Guwahati and under conspiracy she was sent to her Maika retaining her personal belongings for delivery by them but later on, she was not taken in Bidai to her sasural for non fulfillment dowry demand of cash and a motorcycle. As such, while the cause arose at Lal Maati, Guwahati, but the effect of the cause was ensued and was continuing in the district of Bhagalpur, 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 19.9.2005 passed by the Sub Divisional Judicial Magistrate, Bhagalpur, in Complaint Case No.1070 of 2004, 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./-