Rajasthan High Court - Jaipur
Hari Mohan And Ors vs State Of Raj Asthan Through Pp And Anr on 1 July, 2013
Author: R.S. Chauhan
Bench: R.S. Chauhan
In the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur O R D E R S.B. Criminal Miscellaneous Petition No.1247 of 2011. Hari Mohan and Others VERSUS State of Rajasthan and another Date Of Order ::: 01/07/2013. Hon'ble Mr. Justice R.S. Chauhan Mr. Amir Aziz, Counsel for the Petitioners Mr. G.S. Fauzdar, Public Prosecutor for the State Mr. V.S. Badhwar, Counsel for the respondent No.2 *** Reportable: Per Court :
The petitioners are aggrieved by the order dated 05.08.2010 passed by the Civil Judge [Junior Division] cum Judicial Magistrate, 1st Class, Bonli, District Sawai Madhopur, whereby the learned Magistrate has taken cognizance against them for offences under Sections 498-A, 406 and 323 I.P.C.
The brief facts of the case are that the petitioner No.1, Mr. Hari Mohan, was married to the respondent No.2, Ms. Saroj, on 14.11.1997 in accordance with the Hindu customs and rites. At the time of marriage, while Mr. Hari Mohan was fifteen years old, Ms. Saroj was twelve years old. Thus, they got married when they were minors. Nine years later, the gona ceremony was performed. And Ms. Saroj finally went to the matrimonial home. However, according to the petitioners, Ms. Saroj could not adjust well with her husband and her in-laws. Eventually, on 20.04.2010, Mr. Hari Mohan instituted a suit before the Civil Judge [Junior Division] cum Judicial Magistrate, [1st Class], Sawai Madhopur for declaring the marriage as null and void, as the marriage was performed against the law. The learned Magistrate issued notice to Ms. Saroj. Ms. Saroj received the said notice on 20.05.2010.
Immediately, on 29.05.2005, Ms. Saroj filed a complaint before the learned Magistrate at Bonli, District Sawai Madhopur, wherein she arrayed all the eleven members of the in-laws' family as accused-persons. According to her, while she was staying with her in-laws, she was subjected to physical and mental cruelties because of constant dowry demands made upon her and her family. According to her, these incidents had occurred in Village Jadawta, Police Station, Mantown, District Sawai Madhopur.
The learned Magistrate sent the complaint for further investigation under Section 156 (3) Cr.P.C. to the Police Station, Malarna-Doongar, District Sawai Madhopur. After a thorough investigation, the Police filed a charge-sheet only against the petitioners, namely Hari Mohan, Shanti Devi and Ramesh. By order dated 05.08.2010, the learned Magistrate took cognizance against the petitioners, as mentioned above. Hence, this petition before this Court.
Mr. Amir Aziz, the learned counsel for the petitioners, has raised the following contentions before this Court :- firstly, According to Section 177 Cr.P.C., the case can be tried only where the offences have taken place. According to Ms. Saroj all the acts of cruelties were committed at Village, Jadawta, which falls under the jurisdiction of Police Station, Mantown, District Sawai Madhopur. Moreover, the Police Station, Mantown falls within the territorial jurisdiction of Judicial Magistrate, Sawai Madhopur. However, Ms. Saroj has filed a complaint before the Judicial Magistrate, Bonli, who does not have the territorial jurisdiction over the Police Station, Mantown. Therefore, neither the Police Station, Malarna-Dungar has the territorial jurisdiction to investigate the case, nor the Judicial Magistrate, Bonli has the territorial jurisdiction to try the case. Thus, the cognizance order passed by the Judicial Magistrate lacks the territorial jurisdiction, as no offence had taken place under his jurisdiction. In order to buttress this contention, the learned counsel has relied on the cases of Y. Abraham Ajith & Ors. Vs. Inspector of Police, Chennai & Anr. [2004 (2) WLC (SC) Criminal 597], Manish Ratan & Ors. Vs. State of M.P. & Anr. [2007 (1) WLC (SC) Criminal 132], and Mahaveer Mehta & Ors.Vs. State of Rajasthan and Another [2013 (1) Cr.L.R. (Raj.) 506.
Secondly, the criminal complaint had been filed only as a counter-blast to the civil suit filed by Mr. Hari Mohan. Therefore, Ms. Saroj is abusing the process of the law, and of the Court in order to wreak personal vengeance against the petitioners. Hence, the criminal proceedings initiated by her are for an ulterior motive.
Thirdly, she claims that she was assaulted on 23.05.2010. However, she had left the matrimonial home much earlier. This fact is obvious as she had received notice of the civil suit at her parental place on 20.05.2010.
Lastly, the learned Magistrate has ignored these facts of the case and has mechanically passed the cognizance order. Hence, the cognizance order deserves to be interfered with.
On the other hand, Mr. V.S. Badhwar, the learned counsel for Ms. Saroj, the respondent No.2, and Mr. G.S. Fauzdar, the learned Public Prosecutor for the State, have raised the following contentions before this Court ;- firstly, while Section 177 Cr.P.C. prescribes the general law with regard to the place where a case can be tried, Sections 179 and 181 Cr.P.C. are exceptions to the general rule contained in Section 177 Cr.P.C. According to Section 179 Cr.P.C. the place where consequences of the offence occurred, the Court having the territorial jurisdiction of such a place, would have the jurisdiction to try the case.
Although the acts of cruelties were committed in Village Jadawat, which falls under the jurisdiction of Judicial Magistrate, Sawai Madhopur, but the complainant-wife had to return to her parental place as a consequence of the acts of cruelties. Since she lives in Village Nimod, which falls under the territorial jurisdiction of Judicial Magistrate, Bonli.
Further, Section 181 Cr.P.C. specifies the Courts, which would have the territorial jurisdiction for specific offences. According to sub-Clause (4) of Section 181 Cr.P.C. an offence of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property was received or retained, or was required to be returned or accounted for by the accused person. According to the learned counsel, admittedly, stridhan was given to the petitioners at Village, Nimod, Tehsil Bonli, where the marriage was performed. Thus, the property was entrusted at Village Nimod, which falls under the territorial jurisdiction of Police Station, Malarna-Dungar. Moreover, Police Station, Malarna-Dungar is within the territorial jurisdiction of Judicial Magistrate, Bonli. Thus, both the Police Station, Malarna-Dungar and Judicial Magistrate, Bonli would have the territorial jurisdiction to investigate, and to try the case respectively. In order to buttress this contention, the learned Counsel has relied on the cases of State of M.P. Vs. Suresh Kaushal & Anr. [(2003) 11 SCC 126], Sunita Kumari Kashyap Vs. State of Bihar & Anr. [(2011) 11 SCC 301] and on the case of Vikas Sawlani Vs. State of Rajasthan & Anr. [S.B. Criminal Miscellaneous Petition No.161/2013, decided on 31.05.2013].
Secondly, since Ms. Saroj had been physically and mentally tortured by the petitioners, since they have continued to retain her stridhan, she has a right to file a criminal complaint against the petitioners. Thus, by filing a criminal complaint, she is merely exercising a right bestowed by Statutes upon her. Hence, her action is neither a counter-blast to the civil suit, nor a means to wreak personal vengeance.
Lastly, while passing cognizance order, the jurisdiction of the learned Magistrate is extremely limited one. At the initial stage, he has to merely see if there is a prima facie evidence to show that the offence has been committed. At the initial stage, the cognizance is taken of the offence, or not. In case, ingredients of the offence exist in the allegation made by the complainant, the learned Magistrate is duty bound to take cognizance of the offence. Moreover, the cognizance is taken of the offence, and not of the offender (s). Thus, at this stage, the learned Magistrate is neither concerned with the veracity of the statements, nor with the issue whether the trial will end with the conviction of the offender or not. Therefore, the issue whether the allegation with regard to inflicting of cruelties on 23.05.2010 is true or not, cannot be appreciated by him at the time of taking of cognizance.
Heard the learned counsel for the parties, perused the impugned order, and considered the case law sited at the Bar.
Chapter-XIII of the Code of Criminal Procedure ('the Code', for short) deals with the Jurisdiction of Criminal Courts for Inquiries and Trial.
Section 177 Cr.P.C. is 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.
Section 178 Cr.P.C. is as under:-
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.
Section 179 Cr.P.C. is as under:-
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.
Section 181 Cr.P.C. is as under:-
181. Place of trial in case of certain offences. (1) Any offence of being a thug, or murder committed by a thug, of dacoity, of dacoity with murder, of belonging to a gang of dacoits, or of escaping from custody, may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the accused person is found.
(2) Any offence of kidnapping or abduction of a person may be inquired into or tried by a Court within whose local jurisdiction the person was kidnapped or abducted or was conveyed or concealed or detained.
(3) Any offence of theft, extortion or robbery may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property which is the subject of the offence was possessed by any person committing it or by any person who received or retained such property knowing or having reason to relieve it to be stolen property.
(4) Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person.
(5) Any offence which includes the possession of stolen property may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property was possessed by any person who received or retained it knowing or having reason to believe it to be stolen property.
A bare perusal of these provisions clearly reveal that the general rule with regard to territorial jurisdiction is that the courts where the offence has been committed would have the territorial jurisdiction to try the case. However, the Code itself makes exceptions to the general rule. Sections 178, 179 and 181 Cr.P.C. are examples of exceptions made by the Code. Section 178 lays down four circumstances when courts other than the court where the act has been committed would equally have the jurisdiction to try the cases: firstly, when it is uncertain in which of several local areas an offence was committed; secondly, where an offence is committed partly in one local area and partly in another; thirdly, where an offence is a continuing one, and continues to be committed in more local areas than one; and lastly, where it consists of several acts done in different local areas.
Similarly Section 179 Cr.P.C. prescribes that the courts where the act was committed, or where the consequences of such an offence follow, both the courts would have the jurisdiction to try the cases. Therefore, it is a fallacious argument to plead that only the said court where the offence has been committed would have the jurisdiction to try the case.
Section 181 Cr.P.C. is also an exception to Section 177 Cr.P.C. According to Section 181 (4), any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person. Hence, it is not necessary that an offence should be tried only where it is committed. In order to deal with variety of circumstances, the Code has prescribed exceptions to the general rule. It has empowered different courts to try the cases depending on the nature of the offence and upon the circumstances of the case.
Moreover, in catena of cases the Apex Court has opined that the principles governing the territorial jurisdiction of the court would also cover the territorial jurisdiction of the police to investigate the case.
Section 179 Cr.P.C. clearly stipulates that the courts where consequences of an offence follow, even those courts would have the territorial jurisdiction to try the case. The complainant had to leave the matrimonial home due to cruelties unleashed upon her by the petitioner and his family members at Village Jadawata. Therefore, as a consequence, she had to return back to her parental home at Village Nimod in Tehsil Bonli. Since consequence of the offence, which was committed at Village Jadawata, occurred at Village Nimod,in Tehsil Bonli, therefore the courts at Bonli, under whose jurisdiction Village Nimod falls, would have the jurisdiction to try the case.
The learned counsel for the petitioner has relied on the case of Y. Abraham Ajith & Ors. (supra) and on the case of Manish Ratan & Ors. (surpa) in order to contend that the complainant can only lodge a F.I.R. and the case can be tried only by the courts where the cruelties were committed. However, neither of these cases dealt with Section 179 Cr.P.C.
It is only in the case of Suresh Kaushal & Anr. (supra) that the Hon'ble Supreme Court has dealt with Section 179 Cr.P.C. at length, and has examined its co-relation with the offence under Section 498-A I.P.C. In the said case the complainant was married at Jabalpur, but her matrimonial home was at Indore. Although allegations about inflicting cruelties related to Indore, but the complaint was filed at Jabalpur. The Hon'ble High Court of Madhya Pradesh interfered and held that the courts at Jabalpur would not have the territorial jurisdiction as the acts of cruelties were committed at Indore. However, setting aside the order passed by the High Court, the Hon'ble Supreme Court held that obviously the learned Single Judge has not considered the implication of Section 179 of the Code of Criminal Procedure. It is extracted before 179 (sic). 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.
The case of Suresh Kaushal & Anr. (supra) has recently been followed by the Apex Court in the case of Sunita Kumari Kashyap (supra). In this case the complainant-wife was married at Gaya. The acts of cruelties were inflicted upon her at Ranchi. Due to the cruelties inflicted upon her, she returned back to her parental home at Gaya; the FIR was lodged at Police Station Magadh Medical College, Gaya. A contention was raised that the courts at Gaya had no jurisdiction as the acts of cruelties were committed at Ranchi. However, the learned Magistrate rejected this contention. The matter traveled upto the Hon'ble Patna High Court. The Hon'ble Patna High Court quashed the criminal proceedings at Gaya as it held that the courts at Ranchi would have the territorial jurisdiction. Thus, the complainant-wife approached the Apex Court. The Apex Court not only relied on Sections 177, 178 and 179 Cr.P.C., but also noticed its decision in the case of Sujata Mukherjee (Smt.) (supra) and Suresh Kaushal & Anr. (supra) and concluded as under:-
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.
In the case of Gulshan Kapoor & Ors. Vs. State of Rajasthan & Anr. [RLW 2011 (4) Raj. 3520], this court, too, has relied upon the judgment of the Apex Court in order to conclude that the court where the consequence of an offence follow would have the jurisdiction to try the case. In this case also the parties were married and lived in Delhi. But due to the atrocities committed by the husband, Gulshan Kapoor, the wife, returned back to her parental home at Atalbandh, District Bharatpur. Subsequently she lodged a FIR at Police Station Atalbandh (Bharatpur). The police, after investigation, submitted a chargesheet against Gulshan Kapoor and others. The learned trial court took cognizance. Gulshan Kapoor and others filed an application under Section 177 Cr.PC. wherein they raised the issue of territorial jurisdiction of the court. However, the learned Magistrate dismissed their application. Hence, Gulshan Kapoor and others approached this Court. But even this Court, while relying on Sections 177, 178, 179 and 181 Cr.P.C. and upon the case laws cites above, clearly held that the courts where the consequences of offence follow would have the territorial jurisdiction to try the case.
Recently, in the case of Vikas Sawlani [supra] an identical issue had been raised. Even in that case this Court had held that under Section 179 and Section 181 Cr.P.C. the Courts where consequences of the offences occurred, or where stridhan was entrusted and needs to be returned, the Courts would have the jurisdiction to try the case.
Thus, in the light of the relevant provisions of law, mentioned above, and in the light of the case laws it is rather apparent that the courts where the consequence of an offence occurs, the said courts would have the territorial jurisdiction to try the case. In the present case, as mentioned above, the respondent-wife had to leave Village Jadawata and had to return to her paternal place at Village Nimod. Hence, both the police station at Malarna-Dungar, and the courts at Bonli under whose jurisdiction Village Nimod falls, would have the territorial jurisdiction to investigate and try the case respectively.
Moreover, in the present case, allegedly the stridhan was given at Village Nimod where the marriage had taken place. It was also required to be returned back at Village Nimod where the complainant-wife was residing with her parents. Thus, under Section 181 (4) Cr.P.C., the police at Malarna-Dungar would have the power to investigate the case and the Court at Bonli under whose jurisdiction Village Nimod falls, would have jurisdiction to try the case.
The learned Counsel has relied on the case of Mahaveer Mehta [supra]. However, a bare perusal of the said judgment clearly reveals that Section 179 and Section 181 Cr.P.C. were not brought to the notice of the Court. Moreover, the learned Judge had merely considered the cases of Y. Abraham Ajith [supra] and Manish Ratan [supra]. However, the other cases relevant to the controversy involved, namely Suresh Kaushal [supra] and Sunita Kumari Kashyap [supra] were not brought to the notice of the Court. Most importantly, the learned Judge was of the opinion that the facts narrated by the complainant-wife did not constitute cruelty as defined under Section 498-A I.P.C. Therefore, the learned Judge had quashed the F.I.R. The said judgment is clearly distinguishable from the present case on the basis of the factual matrix itself. For, the allegations made in the criminal complaint in the present case prima-facie bring the case within the ambit of Sections 498-A, 406 and 323 I.P.C. Thus, the case of Mahaveer Mehta & Ors. [supra] does not rush to the rescue of the petitioners.
For the reasons stated above, this Court does not find any illegality or perversity in the impugned order dated 05.08.2010. Therefore, there is no merit in the present petition: it is, hereby, dismissed. Consequent upon dismissal of the main petition, the stay application, filed therewith, does not survive; the same is also dismissed.
[R.S. Chauhan] J.
ashok/ Certificate - All corrections have been incorporated in the judgment/order being emailed.
Ashok Kumar Songara/P.A.cum J.W