Himachal Pradesh High Court
Sh. Manoj Chhabra & Others vs State Of H.P. And Another on 28 June, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 99 of 2016 .
Judgment Reserved on 23.6.2016 Date of decision: 28.6.2016 Sh. Manoj Chhabra & others. ...Petitioners Versus State of H.P. and Another. ...Respondents of Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 Yes.
rt For the Petitioners: Mr. Balwant Kukreja, Advocate.
For the Respondents: Ms.Meenakshi Sharma, Additional Advocate General, with Mr.J.S. Guleria, Assistant Advocate General, for respondent No. 1.
Ms.Bhawana Dutta, Advocate, vice
Mr.Amit Vaid, Advocate, for
respondent No. 2.
Tarlok Singh Chauhan J.
This petition under Section 482 of the Code of Criminal Procedure seeks quashment of the order passed by the leaned Additional Sessions Judge II, Shimla on 3.3.2016, whereby he set aside the order dated 26.5.2015 passed by learned trial magistrate in case titled State of Himachal Pradesh Vs. Manoj Kumar and others.
2. The facts leading to filing of this petition are that respondent No. 2 filed before Police Station Dhalli, Shimla a complaint under Section 498-A and 506 read with Section 34 of the IPC against the petitioner and one Smt.Ishwari Devi. The same Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 20:42:24 :::HCHP 2 CR.MMO No. 99 of 2016 culminated into a final report and thereafter arguments on charge were heard by the learned trial Magistrate and vide order dated .
26.5.2015 held that the Courts at Shimla had no territorial jurisdiction to try the offence, as the cruelty and demand of dowry, if at all made was at Dehradun as there was no allegation of the alleged act of cruelty/demand of dowry having been committed/made at Shimla.
of
3. This order was assailed by the State by filing Revision Petition before the learned Additional Sessions Judge, Shimla, who rt vide judgment dated 3.3.2016 held that the offence under Section 498-A IPC was a continuing one and therefore, the Courts at Shimla had the jurisdiction.
4. It is this order, which has been assailed by the petitioner on the ground that the same is manifestly erroneous, as the bare reading of the complaint reveals that there are no allegations whatsoever regarding cruelty or demand of dowry having been made at Shimla.
I have heard the learned counsel for the parties and have also gone through the records of the case.
5. Sh. Balwant Kukreja, learned counsel for the petitioner would vehemently argue that even if the offence under Section 498- A is considered to be a continuing offence as distinguishable to one which is committed once for all, even then once the complainant had left the house of the accused/husband on account of alleged cruelty/demand of dowry, even then in absence of any material to show that the complainant continued to be meted out with the cruelty ::: Downloaded on - 15/04/2017 20:42:24 :::HCHP 3 CR.MMO No. 99 of 2016 and demand of dowry was even made at Shimla, the Courts at Shimla would have no jurisdiction.
.
6. In support of his submission reliance has been placed on the following judgments:
Y. Abraham Ajith & Others Vs. Inspector of Police, Chennai & Another, (2004) 8 SCC 100, Preeti Gupta & another of Vs. State of Jharkhand & Another, (2010) 3 SCC 473, Amarendu Jyoti Vs. State of Chattisgarh (2014) 12 SCC 362, Nirasha rt Sharma Vs. State of M.P. and another (2015) 1 MPWN 65 and Swaran Kalra and others Vs. State of H.P. and others 2015 (1) Him.L.R. 163.
7. In Y. Abraham Ajith & Others Vs. Inspector of Police, Chennai & Another, (2004) 8 SCC 100, the Hon'ble Supreme Court held that in absence of their being any material to show that the demand of dowry had been made at Chennai, where the complaint resided, after leaving the house of her husband, then in such circumstances, the Courts at Chennai had no jurisdiction to deal with the matter and the proceedings were liable to be quashed. It is apt to reproduce the following observations:-
"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. Sections 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 ::: Downloaded on - 15/04/2017 20:42:24 :::HCHP 4 CR.MMO No. 99 of 2016 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 of and partly in another, or
(c) where an offence is continuing one, and continues to be committed in more local areas than one, or rt
(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 Purushottamdas 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.
::: Downloaded on - 15/04/2017 20:42:24 :::HCHP 5 CR.MMO No. 99 of 201612. 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 498A, 506 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 of 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 rt 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 ::: Downloaded on - 15/04/2017 20:42:24 :::HCHP 6 CR.MMO No. 99 of 2016 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".
17. The expression "cause of action" has sometimes been of employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been rt used to denote the whole bundle of material facts.
18. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases for sitting; a factual situation that entitles one person to obtain a remedy in court from another person. (Black's Law Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In "Words and Phrases" (4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf.
19. In Halsbury Laws of England (Fourth Edition) it has been stated as follows:
"Cause of action" has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. "Cause of action" has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action".::: Downloaded on - 15/04/2017 20:42:24 :::HCHP 7 CR.MMO No. 99 of 2016
20. When the aforesaid legal principles are applied, to the factual scenario disclosed by the complainant in the complaint petition, the inevitable conclusion is that no part of cause of action arose in Chennai and, therefore, the concerned magistrate had no .
jurisdiction to deal with the matter. The proceedings are quashed. The complaint be returned to respondent No.2 who, if she so chooses, may file the same in the appropriate Court to be dealt with in accordance with law. The appeal is accordingly allowed."
8. In Preeti Gupta & another Vs. State of Jharkhand & of Another, (2010) 3 SCC 473 it was held by the Hon'ble Supreme Court that the powers under Section 482 Cr.P.C. should be rt exercised to prevent injustice and secure justice. It was further observed that the entire provision of Section 498-A requires serious relook by the legislation.
9. In Amarendu Jyoti Vs. State of Chattisgarh (2014) 12 SCC 362, the Hon'ble Supreme Court held that the offence of cruelty in the fact situation obtaining in the said case cannot be said to be a continuing one as contemplated by Sections 178 and 179 of the Code and therefore, it was the Court at Delhi alone which would have the jurisdiction to try the said offence and not the Court at Ambikapur, where the proceedings had in fact been initiated, as would be evident from the following observations:-
"7. The core question thus is whether the allegations made in the F.I.R. constitute a continuing offence. We find from the F.I.R. that all the incidents alleged by the complainant in respect of the alleged cruelty are said to have occurred at Delhi. The cruel and humiliating words spoken to the 2nd respondent/wife by her husband, elder brother-in-law and elder sister-in-law for bringing less dowry are said to have been uttered at Delhi. Allegedly, arbitrary demands of lakhs of rupees in dowry have been made in Delhi. The incident of beating and dragging the respondent no. 2 and abusing her in filthy language also is said to have taken place ::: Downloaded on - 15/04/2017 20:42:24 :::HCHP 8 CR.MMO No. 99 of 2016 at Delhi. Suffice it to say that all overt acts, which are said to have constituted cruelty have allegedly taken place at Delhi. The allegations as to what has happened at Ambikapur are as follows:
No purposeful information has been received from the in-
.
laws of Kiran even on contacting on telephone till today. They have been threatened and abused and two years have been elapsed and the in-laws have not shown any interest to call her to her matrimonial home and since then Kiran is making her both ends meet in her parental home.
of To get rid of the ill-treatment and harassment of the in-laws of Kiran, the complainant is praying for registration of an FIR and request for immediate legal action so that Kiran rt may get appropriate justice.
8. We find that the offence of cruelty cannot be said to be a continuing one as contemplated by Sections 178 and 179 of the Code. We do not agree with the High Court that in this case the mental cruelty inflicted upon the respondent no. 2 'continued unabated' on account of no effort having been made by the appellants to take her back to her matrimonial home, and the threats given by the appellants over the telephone. It might be noted incidentally that the High Court does not make reference to any particular piece of evidence regarding the threats said to have been given by the appellants over the telephone. Thus, going by the complaint, we are of the view that it cannot be held that the Court at Ambikapur has jurisdiction to try the offence since the appropriate Court at Delhi would have jurisdiction to try the said offence. Accordingly, the appeal is allowed."
10. In Nirasha Sharma Vs. State of M.P. and another (2015) 1 MPWN 65, the law laid down by the Hon'ble Supreme Court in Y. Abraham Ajith case (supra) was re-iterated.
11. In Swaran Kalra and others Vs. State of H.P. and others 2015 (1) Him.L.R. 163, this Court was dealing with a complaint wherein the admitted allegations were that the offence had been committed at Dehradun, while proceedings had been instituted at Kangra only on the pretext that the search warrant has been ::: Downloaded on - 15/04/2017 20:42:24 :::HCHP 9 CR.MMO No. 99 of 2016 issued by the said Court and on the basis of said admitted allegations, this Court quashed the proceeding by observing that the .
learned Magistrate at Kangra had no jurisdiction to entertain, much less issue process in the complaint. This would be evident from the following observations:-
"8. Chapter-XIII of the Code of Criminal Procedure, 1973 (for short of 'Code') relates to jurisdiction of Criminal Courts in inquiries and trials. Section 177 of the Code deals with the place where ordinarily the inquiry and trial would be held and reads thus:-
"177. Ordinary place of inquiry and trial.- Every offence rt shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed."
9. It is apparent from a bare perusal of the aforesaid Section that every offence is required to be ordinarily enquired into and tried by a Court within whose jurisdiction it was committed. Undisputedly, even as per allegations set out in the complaint, the alleged offences had been committed at Dehradun. The mere fact that warrants of search had been issued by the Court at Kangra would not clothe the Court at Kangra with jurisdiction to entertain the complaint as this would apparently be in violation and conflict with Section 177 of the Code.
10. It has to be remembered that Civil law concepts are not strictly applicable to Criminal law when they specially relate to cause of action or place of suing. This was so held in a recent judgment by Hon'ble three judges bench of Hon'ble Supreme Court in Dashrath Rupsingh Rathod v. State of Maharashtra and another JT 2014 (9) SC 81 in the following terms:-
"CIVIL LAW CONCEPTS NOT STRICTLY APPLICABLE
14. We have already cautioned against the extrapolation of civil law concepts such as "cause of action" onto criminal law. Section 177 of the CrPC unambiguously states that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. "Offence", by virtue of the definition ascribed to the word by Section 2(n) of the CrPC means any act or omission made punishable by any law. Halsbury states that the venue for the trial of a crime is confined to the place of ::: Downloaded on - 15/04/2017 20:42:24 :::HCHP 10 CR.MMO No. 99 of 2016 its occurrence. Blackstone opines that crime is local and jurisdiction over it vests in the Court and Country where the crime is committed. This is obviously the raison d'etre for the CrPC making a departure from the CPC in not making .
the "cause of action" routinely relevant for the determination of territoriality of criminal courts. The word "action" has traditionally been understood to be synonymous to "suit", or as ordinary proceedings in a Court of justice for enforcement or protection of the rights of the of initiator of the proceedings. "Action, generally means a litigation in a civil Court for the recovery of individual right or redress of individual wrong, inclusive, in its proper legal rt sense, of suits by the Crown" - [Bradlaugh v. Clarke [8 Appeal Cases 354 p.361]. Unlike civil actions, where the Plaintiff has the burden of filing and proving its case, the responsibility of investigating a crime, marshalling evidence and witnesses, rests with the State. Therefore, while the convenience of the Defendant in a civil action may be relevant, the convenience of the so called complainant/victim has little or no role to play in criminal prosecution. Keeping in perspective the presence of the word "ordinarily" in Section 177 of CrPC, we hasten to adumbrate that the exceptions to it are contained in the CrPC itself, that is, in the contents of the succeeding Section 178. The CrPC also contains an explication of "complaint" as any allegation to a Magistrate with a view to his taking action in respect of the commission of an offence; not being a police report. Prosecution ensues from a Complaint or police report for the purpose of determining the culpability of a person accused of the commission of a crime; and unlike a civil action or suit is carried out (or 'prosecuted') by the State or its nominated agency. The principal definition of "prosecution" imparted by Black's Law Dictionary 5 th Edition is "a criminal action; the proceeding instituted and carried on by due process of law, before a competent Tribunal, for the purpose of determining the guilt or innocence of a person charged with crime." These reflections are necessary because Section 142(b) of the NI Act contains the words, "the cause of action arises under the proviso to Section 138", resulting arguably, but in our ::: Downloaded on - 15/04/2017 20:42:24 :::HCHP 11 CR.MMO No. 99 of 2016 opinion irrelevantly, to the blind borrowing of essentially civil law attributes onto criminal proceedings. We reiterate that Section 178 admits of no debate that in criminal prosecution, the concept of "cause of action", being the .
bundle of facts required to be proved in a suit and accordingly also being relevant for the place of suing, is not pertinent or germane for determining territorial jurisdiction of criminal Trials. Section 178, CrPC explicitly states that every offence shall ordinarily be inquired into and tried by a of Court within whose local jurisdiction it was committed. Section 179 is of similar tenor. We are also unable to locate any provision of the NI Act which indicates or enumerates rt the extraordinary circumstances which would justify a departure from the stipulation that the place where the offence is committed is where the prosecution has to be conducted. In fact, since cognizance of the offence is subject to the five Bhaskaran components or concomitants the concatenation of which ripens the already committed offence under Section 138 NI Act into a prosecutable offence, the employment of the phrase "cause of action" in Section 142 of the NI Act is apposite for taking cognizance, but inappropriate and irrelevant for determining commission of the subject offence. There are myriad examples of the commission of a crime the prosecution of which is dependent on extraneous contingencies such as obtainment of sanction for prosecution under Section 19 of the Prevention of Corruption Act 1988. Similar situation is statutorily created by Section 19 of the Environmental Protection Act 1986, Section 11 of the Central Sales Tax Act 1956, Section 279 of the Income Tax Act, Sections 132 and 308, CrPC, Section 137 of the Customs Act etc. It would be idle to contend that the offence comes into existence only on the grant of permission for prosecution, or that this permission constitutes an integral part of the offence itself. It would also be futile to argue that the place where the permission is granted would provide the venue for the trial. If sanction is not granted the offence does not vanish. Equally, if sanction is granted from a place other than where the crime is committed, it is the latter which will remain the place for its prosecution."::: Downloaded on - 15/04/2017 20:42:24 :::HCHP 12 CR.MMO No. 99 of 2016
11. It cannot be disputed that an order passed in a case, vitiated by the absence of jurisdiction, will be a nullity. Looking into the uncontroverted allegations set out in the complaint and accepted them to be true on its face value, it can safely be concluded that .
no part of the alleged offence was committed within the jurisdiction limits of any of the Courts in Himachal Pradesh. Therefore, the learned Magistrate at Kangra had no jurisdiction to entertain much less issuing process in the complaint instituted by the respondent No.2.
of
12. In view of the aforesaid discussion, the impugned order dated 25.06.2012 issuing process against the petitioners and further consequent proceedings pending before the learned Judicial rt Magistrate Ist Class (II), Kangra in Complaint No.16-I/2014, titled State of H.P. through Paramjit Singh versus Swaran Kalra and others, under Sections 186 and 189 IPC, are quashed and set aside.
13. Accordingly, the petition stands allowed in the aforesaid terms. Pending application, if any, also stands disposed of."
12. On the other hand Mr.J.S. Guleria, Assistant Advocate General has vehemently argued that the offence under Section 498- A is a continuing offence and has relied upon the judgment rendered by Hon'ble Supreme Court in Sunita Kumari Kashyap Vs. State of Bihar and another (2011) 11 SCC 301, wherein it was held that once the offence was continuing one and committed on more than one local area, then the same was triable by Courts having jurisdiction over any such local area. It is apt to reproduce the relevant observations, which reads thus:-
"9. Keeping the above provisions in mind, let us consider the allegations made in the complaint. On 17.10.2007, Sunita Kumari Kashyap - the appellant herein made a complaint to the Inspector In-charge, Magadh Medical College Police Station, Gaya. In the complaint, the appellant, after narrating her marriage with Sanjay Kumar Saini, respondent No.2 herein on 16.04.2000 stated that what had happened immediately after marriage at the instance of ::: Downloaded on - 15/04/2017 20:42:24 :::HCHP 13 CR.MMO No. 99 of 2016 her husband and his family members' ill-treatment, torture and finally complained that she was taken out of the matrimonial home at Ranchi and sent to her parental Home at Gaya with the threat that unless she gets her father's house in the name of her .
husband, she has to stay at her parental house forever. In the said complaint, she also asserted that her husband pressurized her to get her father's house in his name and when she denied she was beaten by her husband. It was also asserted that after keeping her entire jewellery and articles, on 24.12.2006, her husband brought of her at Gaya and left her there warning that till his demands are met, she has to stay at Gaya and if she tries to come back without meeting those demands she will be killed. It was also stated that rt from that date till the date of complaint, her in-laws never enquired about her. Even then she called them but they never talked to her.
10. A perusal of the entire complaint, which was registered as an FIR, clearly shows that there was ill-treatment and cruelty at the hands of her husband and his family members at the matrimonial home at Ranchi and because of their actions and threat she was forcibly taken to her parental home at Gaya where she initiated the criminal proceedings against them for offences punishable under Sections 498A and 406/34 IPC and Sections 3 and 4 of the D.P. Act. Among the offences, offence under Section 498A IPC is the main offence relating to cruelty by husband and his relatives. It is useful to extract the same which is 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 ::: Downloaded on - 15/04/2017 20:42:24 :::HCHP 14 CR.MMO No. 99 of 2016 or valuable security or is on account of failure by her or any person related to her to meet such demand."
18. 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 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 rt 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 illtreatment 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 illtreatment 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.
19. In view of the above discussion and conclusion, the impugned order of the High Court holding that the proceedings at Gaya are not maintainable due to lack of jurisdiction cannot be sustained. The impugned order of the High Court dated 19.03.2010 in Criminal Misc. No. 42478 of 2009 and another order dated 29.04.2010 in Criminal Misc. Case No. 45153 of 2009 are set aside. In view of the same, the SDJM, Gaya is permitted to proceed with the criminal proceedings in trial Nos. 1551 of 2008 and 1224 of 2009 and decide the same in accordance with law."
13. As observed earlier, the FIR has culminated into a charge sheet and therefore, it is not the contents of the FIR alone, but the entire charge sheet accompanied by the documents under sub-section (5) of Section 175 of Cr.P.C., which will now form the basis of the charges and therefore, it is impermissible at this stage to ::: Downloaded on - 15/04/2017 20:42:24 :::HCHP 15 CR.MMO No. 99 of 2016 only consider and refer to the FIR, without looking into the documents and statements of witnesses recorded under Section 161 .
Cr.P.C and quash the proceedings. This was so held by me in Nancy Bhatt & another Vs. State of Himachal Pradesh and another, 2015 (2) Him.L.R. 1095, in the following terms:-
"2. A preliminary objection has been raised by the respondents of that once the FIR has culminated in charge-sheet, the present petition has been rendered infructuous, because it is not the FIR but the chargesheet which forms the basis of criminal trial.
rt
3. I have heard learned counsel for the parties and gone through the records of the case carefully.
4. In State of Punjab vs. Dharam Vir Singh Jethi 1994 SCC (Cri.) 500, the Hon'ble Supreme Court held that when the chargesheet was submitted, quashing of FIR is not permissible since it would be open to the Court to refuse to frame charge. It was observed as under:
"2. Heard learned counsel for the State as well as the contesting respondent. We are afraid that the High Court was not right in quashing the First Information Report on the plea that the said respondent had no role to play and was never the custodian of the paddy in question. In fact it was averred in the counter-affidavit filed in the High Court that the said respondent had acted in collusion with Kashmira Singh resulting in the latter misappropriating the paddy in question. At the relevant point of time the respondent concerned, it is alleged, was in overall charge of the Government Seed Farm, Trehan. This allegation forms the basis of the involvement of the respondent concerned. The High Court was, therefore, wrong in saying that the respondent concerned had no role to play. A specific role is assigned to him, it may be proved or may fail. In any case, pursuant to the First Information Report the investigation was undertaken and a charge sheet or a police report under Section 173(2) of the Code of Criminal Procedure was filed in the court. If the investigation papers annexed to the charge sheet do not disclose the commission of any crime by the respondent concerned, it ::: Downloaded on - 15/04/2017 20:42:24 :::HCHP 16 CR.MMO No. 99 of 2016 would be open to the court to refuse to frame a charge, but quashing of the First Information Report was not permissible.
.
5. In Vineet Narain and others vs. Union of India and another (1996) 2 SCC 199, the Supreme Court after refusing to quash the FIR, held that when a chargesheet was filed in the competent Court, it is that Court alone which will then deal with the case on merits, in accordance with law.
of
6. This legal position has been reiterated in number of cases. (See: Anukul Chandra Pradhan vs. Union of India and others (1996) 6 SCC 354 and Jakia Nasim Ahesan and another vs. State rt of Gujarat and others (2011) 12 SCC 302).
7. Admittedly the FIR is not a substantive piece of evidence. It is information of a cognizable offence given under Section 154 of the Code of Criminal Procedure (for short 'Code'). The legislature in its wisdom under the provisions of the Code has given limited/restrictive power to the Court to intervene at the stage of investigation by the police. Investigation is the exclusive domain of the police. Ordinarily, it is only when the charge sheet is filed that the Court is empowered either to take cognizance and to frame charge or to refuse to do the same.
8. The FIR is the sheet anchor on the basis of which the investigation ensues. However, once the FIR on the basis of which the investigation was initiated has culminated into a chargesheet, the FIR does not remain the sheet anchor because the same alone then cannot be read and has to be read along with the material gathered by the investigating agency during the course of the investigation."
14. The case is at the stage where investigation has been completed and final report has been lodged, but the trial has not yet started. No doubt, the appellants have got every right to approach this Court under Section 482 Cr.P.C and need not wait for the trial, provided that there is no material to believe, hold or infer that they have not prima facie committed any offence. But if the material ::: Downloaded on - 15/04/2017 20:42:24 :::HCHP 17 CR.MMO No. 99 of 2016 gathered by way of investigation discloses the commission of offence, then this Court will not interfere at this stage to quash the .
proceedings.
15. However, learned counsel for the petitioners would still argue that statements of witnesses recorded under Section 161 Cr.P.C. at this stage is inadmissible in evidence and therefore, on of the strength of inadmissible evidence the petitioners cannot be compelled to undergo agony of facing the trial at Shimla, more rt particularly when the First Information Report does not make a whisper about any offence having been committed within the territorial jurisdiction of the Courts at Shimla.
16. In so far as the admissibility of the statements of witnesses recorded under Section 161 Cr.P.C at the stage of quashing is concerned, one only needs to refer to the judgment of Hon'ble Supreme Court in K. Ramakrishna and others Vs. State of Bihar and another (2000) 8 SCC 547, wherein the Hon'ble Supreme Court has held as follows:-
"5..... We have perused all those paras and other parts of the case diary and find that the Trial Magistrate was not justified in his observations so far as the appellants are concerned. In paragraph 48 of the case diary the investigation officer has mentioned the fact of his visiting the branch office of the United Bank of India on 29.11.1987 at 11 a.m. where despite notice, the officers of the bank were not present. Thereafter he served notice upon the Assistant Manager asking him to cause the presence of all the officers in the police station on 15.12.1987. In paragraph 63 a fact is mentioned about the presence of the officers of the bank at the police station. In Paragraphs 64 and 71 the statement of appellant No.1 is stated to have been recorded. In paragraph 79 it is recorded, "diary should be perused because documents of United Bank has not been received and proceedings is being initiated for ::: Downloaded on - 15/04/2017 20:42:24 :::HCHP 18 CR.MMO No. 99 of 2016 finding it". In paragraph 82 it is mentioned that on number of occasions person was sent to the United bank, Bokaro for getting the papers of the case but papers were not received. In paragraph 83 a mention is made of "documents or papers have been .
received about which the proceedings should be initiated after the discussion with the ASP City". Paragraph 84 mentions the compliance of order of ASP City. Paragraph 86 records that the documents received were shown to S/Shri Balakrishna Rai and Ram Kishore Rai who after seeing the papers and documents told of that they do not bear the signature of Shri Sanjay Kumar Roy. In paragraph 110 it is recorded that IO reached the office of the bank at Bokaro and searched Shri Ram Deo Yadav, Branch Manager rt but what was recovered upon search is not noticed. In paragraphs 112-113, the IO has recorded "I proceeded from Dhanbad in connection with the investigation of other case". On perusal of the other paragraphs of the case diaries we noticed not an iota of evidence against any appellants. We are conscious of the fact that in the normal circumstances, this Court or the High Court while deciding the sufficiency of the evidence would not resort to the perusal of the case diary and sit in appeal over the judgment of the investigating officer but as the Trial Magistrate is apparently shown to have recorded wrongly with respect to the facts allegedly noticed in the case diary, this Court vide order dated 17.7.1998 had no option but to direct the counsel of the respondent-State to produce the documents referred to in the report filed under Section 173 of the Code of Criminal Procedure.
6. On perusal of FIR, the final report under Section 173 of the Code of Criminal Procedure and all other documents accompanying it, we are satisfied that no case is made out against any of the appellants and the pendency of the proceedings against them before the Magistrate is an abuse of process of court....."
17. It is clearly evident from the above that the documents accompanying the final report can always be looked into for the purpose of ascertaining as to whether a prima facie case against the petitioners within the territorial jurisdiction of Shimla has been made out, so as to compel them to face the trial at Shimla. Undoubtedly, ::: Downloaded on - 15/04/2017 20:42:24 :::HCHP 19 CR.MMO No. 99 of 2016 the statements recorded under Section 161 Cr.P.C. are not substantial piece of evidence for the purpose of basing a conviction .
in a criminal trial but at the same time, for the purpose of ascertaining whether a prima facie case has been made out against the concerned accused either at the time of framing of charges or to quash the proceedings under Section 482 Cr.P.C., the statements of recorded of the witnesses under Section 161 Cr.P.C. have to be taken into consideration and they are valid documents insofar as this rt stage is concerned and it is only during the course of trial that those documents loses their importance and significance except for the purpose of contradicting the witnesses who made the earlier statements.
18. In light of the above, this Court can look into the statements of witnesses also and on perusal of the same it would be apparent that some of them have clearly stated that the complainant was meted out with cruelty at Sanjauli, within the territorial jurisdiction of Shimla. (Such statements are found at pages 33 to 35 of the final report.) However, these statements are not being discussed in detail, lest it causes prejudice to either of the parties, more particularly the accused.
19. The judgments relied upon by learned counsel for the petitioner are not at all applicable to the case in hand, as in the instant case, there is prima facie material available on record to suggest that some part of the offence was committed within the local area of Shimla.
::: Downloaded on - 15/04/2017 20:42:24 :::HCHP 20 CR.MMO No. 99 of 201620. In view of the aforesaid discussion, I find no merit in this petition and the same is accordingly dismissed. Consequently, the .
interim order passed by this Court on 12.4.2016 is ordered to be vacated.
(Tarlok Singh Chauhan), Judge.
28th June, 2016 (KRS) of rt ::: Downloaded on - 15/04/2017 20:42:24 :::HCHP