Calcutta High Court (Appellete Side)
Deoki Bazaz vs The State Of West Bengal & Anr on 18 January, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
(APPELLATE SIDE)
PRESENT :
The Hon'ble Justice Kanchan Chakraborty
C.R.R No. 1137 of 2009
Deoki Bazaz
Versus
The State of West Bengal & Anr.
For the petitioners : Rabi Sankar Chattopadhyay
Uday Shandar Chattopadhyay
For the State Respondent : Swapan Kumar Mallick
Heard On : 7.1.2011 Judgement On : 18.1. 2011. Kanchan Chakraborty, J: 1) This application under Section 482 Cr.P.C. is taken out by one Deoki Bazaz
@ Deoki Nandan Bazaz and Priti Bazaz praying for quashing of the proceedings in G.R. Case no. 179 of 2008 arising out of Raghunathpur P.S. Case no. 37 of 2008 dated 1.5.2008 under Section 498 A/34 I.P.C. , pending in the Court of learned ACJM, Raghunathpur, Purulia.
2) Mr. Rabi Sankar Chattopadhyay, learned Counsel for the petitioners makes two fold contention. The first point raised is that neither Raghunathpur 2 P.S. has jurisdiction to investigate into the case nor the learned ACJM Raghunathpur has jurisdiction to take cognizance over the offence alleged so far as the petitioners are concerned. His second point of contention is that if the face value of the averments made in the FIR is considered, it will be found that there is no prima facie case under Section 498 A I.P.C. against the petitioners. The entire process, according to Mr. Chattopadhyay, is illegal, irregular, beyond jurisdiction and is liable to be quashed for being abuse of process of the Court.
3) Mr. Swapan Kumar Mallick, the learned Advocate for the State submits that an offence under Section 498 A I.P.C. is a continuos offence and being so, when the alleged torture which started at Asansole and continued at Raghunathpur, both the Raghunathpur P.S. and Asansole P.S. have jurisdiction to investigate in the case and both the Courts at Raghunathpur and Asansol can take cognizance of the same in view of Section 178 (c) of the Code of Cr.P.C. This apart, he submits, when investigation is concluded and charge-sheet is filed against the petitioners and one Tapas, this Court should not exercise its inherent power under Section 482 Cr.P.C.
4) So, the question to be answered by this Court simplicitor is whether the inherent power under Section 482 of the Code is required to be exercising by this Court in the facts and circumstances above in order to prevent abuse of the process of the Court or otherwise to secure the ends of justice. 3
5) As detailed reference to the factual matrix is necessary it is set out below, in short :
6) On 1.5.2002, one Rinku Bazaz lodged one written FIR with Raghunathpur police station alleging therein that after her marriage with Tapas Kumar Bazaz she started living in her matrimonial house at Asansol with her husband Tapas, father in law Deoki Bazaz and sister in law Priti Bazaz. In her matrimonial house at Asansol she was subjected to mental and physical torture. Her husband Tapas, father in law Deoki (petitioner no. 1) and sister in law Priti (petitioner no. 2) pressurised her to bring money from her paternal house. On 5.4.2007, the petitioners Deoki and Priti manhandled and ousted her from their house. Rinku took shelter in her father house at Raghnathpur and since then till the date of lodging of the FIR, she was living in her paternal house at Raghunathpur. On 01.04.2008, Tapas, her husband, came to her paternal house at Raghunathpur and assaulted her mercilessly. He also threatened her of dire consequences in case she fails to provide him with Rs. 5 lakhs. She lodged the FIR in question with Raghunathpur Police station against Tapas and the petitioners on 1.5.2008 which was registered as Raghunathpur police station case no. 37/08 dated 1.5.2008 under Section 498 A/34 I.P.C.
7) The Investigating Officer of Raghunathpur Police station, upon conclusion of the investigation, filed charge-sheet under Section 173 (2) (i) against Tapas and the present petitioners for prosecuting them under Section 498 4 A/34 I.P.C. before the learned ACJM at Raghunathpur who had taken cognizance of alleged offence against all the three accused persons.
8) Going by the facts averred by the FIR and statement recorded under Section 161 Cr.P.C., it appears that two distincts and separate incidents have taken place- one at Asansol and the other at Rghunathpur. The alleged incident at Asansol took place on 5.4.2007 wherein only the present petitioners were involved. It is alleged that on 5.4.2007, the present petitioners manhandled Rinku and ousted her from her matrimonial house at Asansol. The husband Tapas was not, however, connected with that alleged incident.
9) The second incident alleged to have been taken place at Raghunathpur on 1.4.2008, i.e., about 1 year after the alleged first incident. In the alleged second incident which took place in the paternal house of the respondent no. 2 at Raghunathpur, the present petitioners were not atall involved. The FIR was lodged on 1.5.2008, i.e., one month after the alleged second incident at Raghunathpur.
10) I have considered the rival contentions of learned Counsels for both the parties. It appears necessary to set out the relevant provisions of Section 177 and 178 of the Criminal Procedure Code for better appreciation of issue raised at the bar.
"Section 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. 5 Section 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 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."
11) The provisions above establish unequivocally that ordinarily every offence is to be enquired into and tried by Court within whose jurisdiction it is committed. But, this rule has exception. Those exception are mentioned in the Section 178 of the Code. One of the exceptions is Clause (C ) of Section 178 which says that where an offence is a continuing, and continuous to be committed in more local arrears then one, it may be enquired into or tried by Court having jurisdiction over any of such local arrears.
12) Mr. Chattopadhyay submits that the facts which can be gathered from the FIR and material collected in course of investigation altogether indicates clearly that the first incident which was taken place at Asansol on 5.4.2007, has got no connection with the second incident which was taken place on 1.4.2008 at Raghunathpur. The persons involved in the first incident were not also involved in the second incident. Apart from that, he 6 submits, the time gap between the first and second incident was one year. So, it can not be said that the second incident is continuation of the first incident. In other words, his contention is that when the first incident alleged to have been committed by the present petitioners only on 5.4.2007 at Asansol, which has no connection with the second incident dated 1.4.2008 at Raghunathpur allegedly committed by another person, the Raghunathpur police station has no jurisdiction to investigate into the case so far as this petitioners are concerned nor the learned ACJM at Raghunathpur has jurisdiction to take cognizance over the matter so far as the petitioner is concerned. To draw support of his contention, Mr. Chottopadhyay places this Court the following decisions - Manish Ratan and Ors. Vs. State of M.P. and Anr. Reported in (2007) 2 C Cr LR (SC) 46 , Shipra Raj Roy -Vs. The State of W.B. & Anr. Reported in (2007) 1 C Cr LR (Cal) 800 and Y. Abraham Ajith & Ors. Vs. Inspector of Police Chennai and Anr. Reported in JT (2004) 6 SC 497 : (2004) 8 SCC 100 C Cr.LR (SC) 972.
13) Mr. Mallick submits that an offence under Section 498 A I.P.C. which includes physical as well as mental torture is a continuous offences. That being so, when the torture upon the opposite party no. 2 was started at Asansol and continued at Raghunathpur, the provisions relating to jurisdiction to investigate into the matter and taking congnizance are guided by Section 178 ( C) of the Code of Criminal Procedure. Therefore, there is no illegality either in the part of Raghunathpur police station to 7 investigate into the matter or learned ACJM Raghunathpur to take cognizance of the offences against the petitioners. So, he submits, the prayer for quashing of the proceeding as against the present petitioners as prayed for is not tenable.
14) Going by the contention learned Counsel for the parties on facts and legal position, it appears to this Court that the first and foremost point required to be answered in this matter when whether the face value of the averments in the FIR and material collected by the Investigating Officer in course of investigation, if taken together, constitute any continuous offence of subjecting the opposite party no. 2 to cruelty within the meaning of Section 498 A I.P.C.
15) " Continuing offence" has not been defined in the Code. The judicial pronouncements, however, have defined it as series of act so connected together as to form same transaction. It can well be put in another way. For example, an offence partly committed at one place/places and remaining part is committed at different place or places, and if all the acts together form one transaction, it can well be categorized as " continuing offence" .
16) In the State of Bihar Vs. Deokaran Menghi & Ors. AIR 1973( SC) 908, the Apex Court observed that continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all, that this one of those offences which arises out of the failure to obey or comply with a rule or its requirement and which involves a penalty, 8 liability continuous till compliance, that every occasion such disobedience or self compliance occurs or recurs, there is offence committed.
17) In the case in hand, there is an allegation of dowry demand in the matrimonial house at Asansol of the opposite party no. 2 prior to 5.4.2007. The petitioners herein alleged to have subjected the opposite party no. 2 to cruelty, which is subject to strict proof, and ousted her thereform on 5.4.2007. It is a distinct and specific allegation against the petitioners which was committed at Asansol. Thereafter, no whisper, whatsoever, of any kind of cruelty on the opposite party no. 2 by the petitioners. The opposite party no. 2 has lodged no complaint/FIR against the petitioners for the alleged occurrence dated 5.4.2007 at Asansol. She started living in her paternal house since 5.4.2007. The matter appears to be a closed chapter so far as incident dated 5.4.2007 is concerned. Nothing untowards incident took place thereafter till 01.4.2008 when Tapas, the husband of the opposite party no. 2 alone came to the paternal house of the opposite party no. 2 at Raghunathpur, assaulted her mercilessly and threatened her of dire consequences if Rs. 5 lakhs is not paid to him. The alleged incident dated 01.04.2008 appears to be a completely different, distinct and separate one having no connection, whatsoever, with the incident dated 5.4.2007. According to the FIR, only the petitioners were involved in the incident dated 5.4.2007. Tapas was no way connected with that incident. On the other hand, only Taps was involved in the incident dated 1.4.2008 - not the petitioners. The time gape between those two incidence is one year 9 also and within this long period of one year there is no history of any kind of incident connecting the incidence dated 5.4.2007 and dated 1.4.2008. It appears that had there been no incident on 01.04.2008, no FIR perhaps would have been lodged on 1.5.2008.
18) One aspect, in the above backdrop, should not be lost sight of, i.e., the case is initiated against the petitioners and Tapas only under Section 498A/34 I.P.C. and the opposite party no. 2 remained inactive till 1.5.2008, one month after commission of the second incident by Tapas only at Raghunathpur.
19) The expression cause of action if used in its comprehensive sense herein, in that case also it can not possibly be said that the cause of action for filing the FIR at Raghunathpur against the present petitioner had its origin on 5.4.2007 at Asansol. The incident dated 5.4.2007 and 1.4.2008 can not said to be a bundle of materials of fact constitute one offence.
20) In Manish Ratan and Ors. Vs. State of M.P (Supra), the Hon'ble Apex Court while distinguishing facts of the case in Sujata Mukherjee 1997 C CRLR (SC) 214 with the facts of the case of Y. Abraham Ajit and Ors. Vs. Inspector of police, Channia and Ors. (supra), held that the expression 'ordinarily' used in Section 177 of the Code need not be limited to those specially provided for by the law and exception may be provided by law on consideration or may be implied from the provision of law permitting joint trial of offence by the same Court. So, in the factual background of Sujata Mukherjee's case (Supra) where clause (C ) of 178 was attracted, in the 10 factual position in Y Abraham Ajit's case (Supra) which is different, the same is not applicable.
21) The factual aspect of the case in hand having similarity with Y. Abraham Ajit's case (supra) the principle laid down therein is squarely applicable.
22) In the conspectus of the facts and circumstances above I find substances in the contention of Mr. Chattopadhyay. The application is allowed and the charge-sheet filed by Rathunathpur Police Station against the present petitioners and cognizance taken by the Raghunathpur Court against them is quashed. However, the proceeding against Tapas will continue.
23) Mr. Mallick draws attention to the facts that no criminal case was lodged at Asansol against the present petitioners for the offences allegedly committed by them on 5.4.2007. However, in Y. Abraham Ajit's case (supra) all the accused persons were involved in the incidence took place in Mumbai and Chennai. In the case in hand, the petitioner were not at all involved in the act of cruelty allegedly has taken place at Raghunathpur. Only Tapas the husband of the opposite party no. 2 allegedly committed that offence on 1.4.2008. That being so, the case investigated by Raghunathpur police station and cognizance by the learned Magistrate at Raghunathpur is not required to be splited up and no direction is required to be given for transfer of the case to Asansol Court for separately prosecuting the petitioners only for alleged incident dated 4.5.2007. Option is left with the opposite party no. 2.
24) Accordingly, the petition is disposed of.
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(Kanchan Chakraborty,J)