Allahabad High Court
Ashish Shukla @ Kallu @ Ashok Kumar & Anr. vs State Of U.P. & Anr. on 2 December, 2021
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?A.F.R. Court No. - 14 Case :- U/S 482/378/407 No. - 4301 of 2021 Applicant :- Ashish Shukla @ Kallu @ Ashok Kumar & Anr. Opposite Party :- State Of U.P. & Anr. Counsel for Applicant :- Indresh Kumar Mishra,S.C. Misra Counsel for Opposite Party :- G.A. Hon'ble Rajesh Singh Chauhan,J.
1. Heard Sri Indresh Kumar Mishra, learned counsel for the petitioners and Sri Ran Vijay Singh, learned Additional Government Advocate for the State.
2. By means of this petition filed under Section 482 Cr.P.C., the petitioners have prayed for quashing the Charge-sheet No.128 of 2020 dated 17.03.2020 arising out of Case Crime No.647 of 2018, under Sections 147, 304 & 506 I.P.C. relating to Police Station-Kotwali City Hardoi, as well as the summoning order and also the entire proceeding of Criminal Case No.18362 of 2020 (State vs. Ashish Shukla @ Kallu & others) pending in the Court of the learned Chief Judicial Magistrate, District-Hardoi.
3. On the first date of admission, a pure legal question was argued to the effect that when the appropriate alleged overt act has been committed at Delhi, as to how the investigation can be carried out at Hardoi and pursuant to such investigation as to how the charge-sheet can be filed at Hardoi. Since the charge-sheet was filed at Hardoi, therefore, the cognizance was taken by the learned court below at Hardoi.
4. So learned counsel for the petitioners has submitted that the entire proceedings, investigation and the cognizance order in the present case is nullity in the eyes of law, therefore, the same may be quashed. For this reason, no notice was issued to the private opposite party i.e. opposite party No.2.
5. Since the aforesaid legal question is being dealt with, therefore, notice to opposite party No.2 is hereby dispensed with as no prejudice is being caused him by this order.
6. The brief facts of the present case are that one First Information Report (in short F.I.R.) was lodged bearing Case Crime No./0647 of 2018, under Sections 147, 304 & 506 I.P.C., at Police Station-Kotwali City, District-Hardoi for the incidence dated 15.09.2018 which admittedly took place at Delhi.
7. On account of prosecution story narrated in the F.I.R., the present petitioners and three other persons have assaulted/ beaten the brother of the informant mercilessly at Delhi, resultant thereof, his brother sustained serious injuries at Delhi. Thereafter, the victim got admitted in the Hospital at Delhi on the same day i.e. 15.09.2018 and after being recovered at Delhi, he came to his home at District-Hardoi and informed the informant about the date of incidence which took place on 15.09.2018 at Delhi and in the meantime he (victim) again felt ill and he was got admitted in the Hospital at Hardoi where he expired on 26.09.2018.
8. Learned counsel for the petitioners has drawn attention of this Court towards the postmortem report, which is contained as Annexure No.3 to this petition, such postmortem was conducted at Hardoi and the opinion of Doctor does not suggest as to what is the cause of death of victim inasmuch as the incidence of assault had taken place at Delhi on 15.09.2018. Thereafter, the victim came to Hardoi on 25.09.2018 and died on 26.09.2018. Therefore, Sri Mishra has submitted with vehemence that the place where cause of action has accrued is Delhi, therefore, if the family members of the victim were aggrieved, they should be lodged the F.I.R. at Delhi immediately after 15.09.2018. Further, there is no allegation regarding assault or beating up at Hardoi on or after 15.09.2018, therefore, the impugned F.I.R. should have not been lodged at Hardoi and investigation should have not been conducted at Hardoi. Not only the above, the charge-sheet should have not been filed before the concerning court at Hardoi and the learned court of Magistrate should have not taken cognizance of such charge-sheet where cause of action has accrued at Delhi.
9. In support of his aforesaid submissions, Sri Mishra has placed reliance upon the dictum of Apex Court in re: Y. Abraham Ajith and others vs. Inspector of Police, Chennai and another rendered in Criminal Appeal No.904 of 2004 arising out of SLP (Crl.) No.4573 of 2003) referring paragraphs-7 to 16, which are being reproduced here-in-below:-
"7. In response, learned counsel for respondent no.2-complainant submitted that the offences were continuing in terms of Section 178 (c) of the Code, and therefore The Court had the jurisdiction to deal with the matter.
8. Section 177 of the Code deals with the ordinary place of inquiry and trial, and reads as follows:
"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."
9. Section 177 to 186 deal with venue and place of trial. Section 177 reiterates the well-established common law rule referred to in Halsbury's Laws of England (Vol. IX para 83) that the proper and ordinary venue for the trial of a crime is the area of jurisdiction in which, on the evidence, the facts occur and which alleged to constitute the crime. There are several exceptions to this general rule and some of them are, so far as the present case is concerned, indicated in Section 178 of the Code which read as follows:
"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."
10. "All crime is local, the jurisdiction over the crime belongs to the country where the crime is committed", as observed by Blackstone. A significant word used in Section 177 of the Code is "ordinarily". Use of the word indicates that the provision is a general one and must be read subject to the special provisions contained in the Code. As observed by the Court in Purshottamdas Dalmia v. State of West Bengal (AIR 1961 SC 1589), L.N. Mukherjee V. State of Madras (AIR 1961 SC 1601),Banwarilal Jhunjhunwalla and Ors. v. Union of India and Anr. (AIR 1963 SC 1620) and Mohan Baitha and Ors. v. State of Bihar and Anr. (2001 (4) SCC 350), exception implied by the word "ordinarily" need not be limited to those specially provided for by the law and exceptions may be provided by law on consideration or may be implied from the provisions of law permitting joint trial of offences by the same Court. No such exception is applicable to the case at hand.
11. As observed by this Court in State of Bihar v. Deokaran Nenshi and Anr. (AIR 1973 SC 908), continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all, that it is 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, liability continues till compliance, that on every occasion such disobedience or non-compliance occurs or recurs, there is the offence committed.
12. A similar plea relating to continuance of the offence was examined by this Court in Sujata Mukherjee (Smt.) v. Prashant Kumar Mukherjee (1997 (5) SCC 30). There the allegations related to commission of alleged offences punishable under Section 498-A and 323 IPC. On the factual background, it was noted that though the dowry demands were made earlier the husband of the complainant went to the place where complainant was residing and had assaulted her. This Court held in that factual background that clause (c) of Section 178 was attracted. But in the present case the factual position is different and the complainant herself left the house of the husband on 15.4.1997 on account of alleged dowry demands by the husband and his relations. There is thereafter not even a whisper of allegations about any demand of dowry or commission of any act constituting an offence much less at Chennai. That being so, the logic of Section 178 (c) of the Code relating to continuance of the offences cannot be applied.
13. The crucial question is whether any part of the cause of action arose within the jurisdiction of the concerned Court. In terms of Section 177 of the Code it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused.
14. While in civil cases, normally the expression "cause of action" is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression "cause of action" is therefore not a stranger to criminal cases.
15. It is settled law that cause of action consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise.
16. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in "cause of action"."
10. Per contra, Sri Ran Vijay Singh, learned Additional Government Advocate has submitted that no doubt the occurrence in question has been committed at Delhi on 15.09.2018 but so as to one allegation regarding threatening of dire consequences is concerned, it is after 15.09.2018 at Hardoi. Therefore, for the section i.e. Section 506 I.P.C. the F.I.R. can be lodged at Hardoi. He has also submitted that since some allegations have been made at Delhi and some allegations are at Hardoi, then as per Section 178 Cr.P.C. the F.I.R. can be lodged at Hardoi and therefore, the charge-sheet can be filed at Hardoi and cognizance can be taken by the competent court of law at Hardoi.
11. Having heard learned counsel for the parties and having perused the material available on record what I find is that the place of occurrence is at Delhi and the date of incidence is also relevant to say is 15.09.2018 and admittedly no F.I.R. was lodged immediately after 15.09.2018 at Delhi. The victim came to Hardoi on 25.09.2018 and thereafter except the allegation that the accused persons have threatened for dire consequences, no other allegations have been levelled against the present petitioners and other persons.
12. At this stage, Section 460 Cr.P.C. is being considered which provides that if any Magistrate not empowered by law to do any of the following things, amongst others clause (c) provides to take cognizance of an offence under clause (a) or clause (b) of sub-Section 1 of Section 190 Cr.P.C. erroneously in good faith, his proceedings shall not be set aside merely on the ground of not being so empowered.
13. In the present case, learned counsel for the petitioners has submitted that the Magistrate was not empowered to take cognizance of offence, which was committed at Delhi but investigated at Hardoi and the charge-sheet has been filed at Hardoi.
14. As per the aforesaid Section 460 Cr.PC, the proceedings shall not be set aside if such erroneous cognizance has been taken in good faith. Section 52 of I.P.C. defines the term "good faith". It says that nothing is said to be done or believed in "good faith" which is done or believed without care and attention.
15. In the present case, such error of the Magistrate may not be considered to be done in good faith inasmuch as the allegations of F.I.R. are of Delhi and there was substantial delay, which is unexplained, of about ten days for not reporting at Delhi immediately after committing an offence in question at Delhi and these facts have not been verified by the Magistrate before taking cognizance of the Charge-sheet so the factum of due care and precaution on the part of the Magistrate was missing in this case. Hence, the aforesaid error done by the Magistrate has not been done in good faith then such proceedings may liable to be quashed on this ground alone.
16. Now, Section 462 Cr.P.C. is being considered which categorically provides that if the proceedings of the criminal court or any finding, or order thereof took place in a wrong Session Division, District, Sub-Division or other local area, shall not be set aside for such reason alone unless it appears that such error has in fact occasioned the failure of justice.
17. In the present case, the incidence in question took place at a particular place of Delhi on 15.09.2018, thereafter, the victim was admitted at Pt. Madan Mohan Malviya Hospital, Malviya Nagar, New Delhi for getting treatment on the same day i.e. 15.09.2018 and after being discharged from the hospital he reached at his native village situated at district-Hardoi on 25.09.2018.
18. As per version of the F.I.R., the victim was discharged from hospital after being recovered and there is no allegation of any assault or attack at Hardoi against the petitioners. No F.I.R. under Sections 147 and 304 I.P.C. could have been lodged against the petitioners at Hardoi. Even the postmortem, which was done at Hardoi, is not very clear about the period of injury so sustained by the victim. Had the F.I.R. been lodged at Delhi immediately after 15.09.2018, the police concerned at Delhi must have investigated such serious allegations by examining the relevant persons and material by approaching the hospital where the victim had taken for his treatment after 15.09.2018. Therefore, it appears that on account of lapse on the part of the informant the proper investigation of the issue in question, which could have been conducted at Delhi, could not be made.
19. Notably, on account of failure on the part of the complainant/ informant the actual truth could not comeforth and for the unexplained reason as to why the F.I.R. was not lodged at Delhi and also as to why the substantial delay has been done in lodging the F.I.R., it would be a failure of justice. Therefore, in view of the peculiar facts of the instant case, for the aforesaid reasons, this Court is considering it as a failure of justice, therefore, the proceedings pending before the court at Hardoi are liable to be set aside.
20. It would not be out of place to mention here that if the opposite party No.2 is issued notice, he cannot change his allegations of F.I.R., e.g. date of incidence, place of incidence, no explanation for not lodging the F.I.R. at Delhi immediately after 15.09.2018, the admission that the victim was discharged from Pt. Madan Mohan Malviya Hospital, Malviya Nagar, New Delhi after being recovered, unexplained delay of more than ten days in lodging F.I.R. and no overt act has been committed by the petitioners against the victim at Hardoi between 25.09.2018 to 26.09.2018. In other words, after putting appearance before this Court, he would not be able to improve his case. However, he may take appropriate remedy before appropriate authority as per law inasmuch as in view of the trite law no one can be left remedy less.
21. As per the scheme of Cr.P.C., Section 177 clearly mandates that every offence shall ordinarily be incurred into and tried by the court, within whose local jurisdiction it was committed. In the present case, the offence in question, if any, has been committed at Delhi.
22. Section 178 Cr.P.C. provides further that if it is uncertain about place of offence which could have been committed in several local areas the inquiry or trial may be conducted by the court having jurisdiction in such local areas. In the present case, on the basis of allegations of F.I.R., it appears that offence in question, if any, has been committed only at Delhi.
23. The law is trite that the Magistrate can take cognizance of offence not the offender and while taking cognizance his prima-facie satisfaction is sufficient as he should not to explained reasons elaborately at that point of time but he will have to peruse the material available with the charge-sheet. If he is not satisfied considering the material available on record to take cognizance, he may pass such appropriate order.
24. In the case in hand, before taking cognizance of the charge-sheet the Magistrate concerned should have applied its mind by asking the Investigating Officer as to what offence has been committed at Hardoi and also as to why the F.I.R. was not lodged at Delhi and as to what is explanation of delay of more than ten days in lodging the F.I.R. Had this exercise been carried out by the Magistrate at Hardoi while taking cognizance, any appropriate order would have been passed in stead of taking cognizance. This cognizance may not be said to be taken in good faith, therefore, the protection of Section 460 Cr.P.C. may not be extended to such cognizance order. Besides, the mere allegations of F.I.R. itself creates some confusion as discussed above, therefore, if the proceedings are permitted to be continued at Hardoi, it would cause failure of justice, hence, such proceedings may not be saved by virtue of Section 462 Cr.P.C.
25. The Apex Court in re: Y. Abraham Ajith and others (supra) has categorically held that cause of action consists of bundle of facts and expression "cause of action" has acquired a judicially settled meaning, which means the circumstances forming the infraction of the right or the immediate occasion for the action.
26. In the aforesaid judgment, the Apex Court has considered the term "cause of action" from Halsbury Laws of England (Fourth Edition), which says that "cause of action" is simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another aspect.
27. Therefore, in the present case, the cause of action has accrued at Delhi where no F.I.R. was lodged and for the cause of action which accrued at Delhi the investigation has been done at Hardoi, charge-sheet has been filed at Hardoi and the cognizance has been taken by the learned court below concerned at Hardoi, which is not permissible in the eyes of law.
28. In view of the above, I hereby allow the present petition.
29. Since no cause of action has accrued at Hardoi, therefore, the concerned Magistrate at Hardoi had no jurisdiction to deal with the matter. Accordingly, the proceedings of the aforesaid criminal case are quashed. The informant/ complainant would be at liberty to take appropriate steps against the accused persons, strictly in accordance with law, if he so chooses to do so.
30. No order as to costs.
Order Date :- 2.12.2021 [Rajesh Singh Chauhan,J.]
Suresh/