Calcutta High Court (Appellete Side)
Ram Swarup Agarwal & Ors vs State Of West Bengal & Anr on 20 May, 2011
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Mr. Justice Syamal Kanti Chakrabarti
C. R. R. 1615 of 2010
Ram Swarup Agarwal & Ors.
Vs
State of West Bengal & Anr.
For the Petitioner : Mr. Tapas Kumar Ghosh,
Mr. Tanmoy Chowdhury.
For the Opposite Party No. 1 : Mr. Joymalya Bagchi,
Mr. D. Mitra.
For the State : Mr. Swapan Kumar Mallik,
Mr. Alok Roy Chowdhury.
Heard on : 19.08.2010, 26.08.2010 and
04.10.2010.
Judgement on : 20.05.2011
Syamal Kanti Chakrabarti, J.:
In the present application under Section 482 of the Code of Criminal Procedure a prayer has been made for quashing the proceedings being G.R. Case No. 945 of 2010 arising out of Jagachha Police Station Case No. 90 of 2 2010 dated 16.03.2010 under Section 498A/324/34 of the Indian Penal Code read with Section 3/4 of the Dowry Prohibition Act now pending before the Court of learned Chief Judicial Magistrate, Howrah.
2. The six petitioners herein have contended that the opposite party no.
1 was married to the petitioner no. 3 herein according to Hindu rites and customs on 10th April, 2006. At that time her father gave gold ornaments, cash of Rs. 1 lac and other articles. Questioning the quality of those articles she was subjected to torture by the petitioner/accused who also demanded further money for which her father gave a further sum of Rs. 50,000/- in October, 2006 and thereafter again a further sum of Rs. 50,000/- was paid. Unfortunately, on 24th January, 2010 she was driven out from her matrimonial home by her husband and other in-laws and since then she is residing at her parental home under Dasnagar Police Station, District - Howrah. Accordingly, she has lodged a complaint before the Officer-in-Charge, Jagachha Police Station, Howrah on 16th March, 2010 on grounds of physical and mental torture, cruelty etc. giving rise to the aforesaid P.S. case which is now being challenged.
3. It is contended by the learned lawyer for the petitioners that the said complainant/opposite party no. 1 was in the habit of leaving her 3 matrimonial home frequently without their consent which was opposed by them for which they have been falsely impleaded in this case. From the contents of the FIR it will appear that the place of the alleged assault, torture, cruelty etc. did take place at the matrimonial home of the complainant within the jurisdiction of District Hooghly but the complainant has been lodged before the learned Chief Judicial magistrate, Howrah who has no jurisdiction to entertain such application. Therefore, the proceeding should be quashed.
4. Learned lawyer for the State on the contrary has stated that since the case is at investigation stage, the petitioner/accused cannot raise any question regarding jurisdiction of the Court until charge-sheet is filed and cognizance is taken against them. The points raised by them can be agitated before the learned Trial Court after completion of investigation. Referring to the principles laid down in (1999) 8 Supreme Court Cases 728 [Satvinder Kaur -Versus- State (Govt. of NCT of Delhi) & Anr.] he has contended that the police officer is competent to investigate any cognizable offence but the IO can forward the case to the police station having territorial jurisdiction if he comes to the conclusion that the crime was committed beyond the territorial jurisdiction. It is specifically held therein that for the 4 aforesaid ground the police officer cannot refuse to record the FIR and investigate into the case. Therefore, there is no merit in this application which is liable to be dismissed.
5. I have considered the rival submissions so made by the learned Advocates and perused the petition of complaint. It is alleged therein that in her marriage her father gifted the articles mentioned in the complaint along with cash of Rs. 1 lac, part payment for which were made to her husband, and the rest to her parents-in-law on demands. It is also admitted that her two sisters-in-law, namely, Rubi Agarwal and Reshmi Agarwal, i.e., the accused petitioner nos. 4 and 6 herein are married and residing at their matrimonial houses. It is alleged that under direction of accused Rubi Agarwal all her ornaments given in marriage were kept in the custody of her mother- in-law. She suffered mental agony and pangs since rebuked by her in-laws on account of her failure to discharge her daily domestic duties properly. She was brutally assaulted by her husband at the instigation of her sisters-in-law who controlled her conjugal life in all respects which was beyond her tolerance. Lastly a sum of Rs. 3 lacs was demanded by them from her father. In response they paid Rs. 50,000/- with some fruits in connection with construction of a house 5 at Barrackpore with the expectation of her leading peaceful conjugal life but she was again assaulted on the following date and her father was called and he was driven out from her in-laws' residence without returning her 'Stridhan'. In the said complaint the place of such occurrence of assault, insult, mental torture etc. has been identified as 394, Manna Para, Nandi Bagan, P.S. Barrackpore, District - 24 Parganas North showing the period of alleged occurrence from 18.04.2006 to 24.01.2010.
6. From the nature of alleged assault and the petition of complaint, it is, therefore, apparent that the alleged occurrence of torture, extortion of money etc. did take place at Barrackpore within the District of North 24 Parganas and not at the parental house of the complainant at Howrah. Yet the complaint was lodged before the learned Chief Judicial Magistrate, Howrah at whose instance investigation has been undertaken without any legal authority or jurisdiction.
7. In such a case this Hon'ble High Court has taken conflicting views regarding continuation of such void proceeding. In the case of Shipra Raj Roy -Versus- The State of west Bengal & Anr., reported in (2007) 1 C Cr LR (Cal) 800 the alleged offence under Sections 198A/406/420/506/34 was committed at Mumbai by the accused 6 persons at the matrimonial home of the complainant. No part of the cause of action for the offences took place at Durgapur within the District of Burdwan, West Bengal. It is held by this Hon'ble Court that such offence cannot be said to be continuing offence and accordingly this Hon'ble Court held that the Additional Chief Judicial Magistrate, Durgapur has no jurisdiction to entertain the complainant or hold trial of the case within the meaning of Sections 179, 181(4) and 184 Cr.P.C. His Lordship while discussing the matter was of further opinion that the entire elements of Section 498A IPC, if any, as well as Section 406 IPC, if any, allegedly have taken place within the jurisdiction of Mumbai Court. If jurisdiction of Durgapur Court is invoked with the aid of Section 179 and 181(4) of the Code it would have far reaching consequences. Anybody in order to harass a person may lodge complaint in any part of this vast country, if it is construed that provisions of Sections 179 and 181(4) of the Code empowers a Magistrate of a particular area in the matter of investigation and trial though, in fact the entire incident took place in a different area beyond the territorial jurisdiction of the said Magistrate. So this Hon'ble Court quashed the proceedings and directed the learned ACJM, Durgapur to return the complaint/FIR to 7 the complainant giving her liberty to file the same in the appropriate Court to be dealt with in accordance with law.
8. In another case of Binod Kumar Sil & Ors. -Versus- State of West Bengal & Anr., reported in 2010(2) E Cr. N (Cal) 374 another Single Bench of this Hon'ble Court has observed that if the allegation of subjecting the wife to cruelty by the in-laws on demand of dowry at her in-laws' house within the jurisdiction of the learned ACJM, Barrackpore takes place, the wife after going back to her father's place within the jurisdiction of the learned ACJM, Durgapur cannot lodge any complaint and on the basis of such complaint the learned ACJM, Durgapur has no territorial jurisdiction to take cognizance. Because the alleged offence cannot be said to have been committed wholly or partly within the local jurisdiction of the learned ACJM, Durgapur. The allegations that the articles were received by the accused during marriage at Durgapur has no consequence. Therefore, His Lordship was pleased to transfer the case setting aside the order of the learned Judicial Magistrate, Durgapur and directed him to transfer the same to the Court of the learned Additional Chief Judicial magistrate, Barrackpore.
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9. From the above decisions it will appear that by judicial precedent it has been established beyond doubt that if a criminal case is filed before a Court having no territorial jurisdiction, the same is not sustainable in law. From the copy of relevant order-sheet dated 30.03.2010 I find that the learned Chief Judicial Magistrate, Howrah perused the petition of complaint filed before the IC, Dasnagar Police Station, Howrah received on 16.03.2010 which was placed before him on 30.03.2010 and fixed 30.07.2010 for IO's report. Since then the investigation is pending. Obviously in the given circumstances no cause of action or part thereof did take place within the jurisdiction of the learned Chief Judicial Magistrate, Howrah. Therefore, it appears that he has no jurisdiction to try the offence and further continuation of the the aforesaid proceeding is not in conformity with the provisions laid down in Section 177 Cr.P.C. which provides that every offence shall ordinarily be enquired into and tried by a Court within its local jurisdiction. The alleged offence did take place at Barrackpore, i.e., outside his jurisdiction and further continuation of such proceeding will be an abuse of the process of law and incompatible with the binding rules of precedent laid down in both the cases reported in paras 7 and 8 supra which ought to have been followed by the learned Chief Judicial Magistrate, Howrah. 9
10. In the case of Satvinder Kaur relied upon by the learned State Counsel, the complaint was lodged before Kotwali Police Station under D. D. No. 18 and subsequently at Paschim Vihar Police Station and not before the learned Chief Judicial Magistrate and as such the IO had no option to refuse registering of the cognizable offence. In the case of IO it was his statutory obligation to register the FIR on cognizable offence. But in the case of Chief Judicial magistrate it is his statutory obligation to consider the point of his jurisdiction before entertaining any complaint on cognizable offence which question has been set at rest by the High Court to which he is subordinate. Therefore, I hold that under such different context and circumstances the principles relied upon by the learned State Counsel relating to jurisdiction of police to investigate such case cannot be applicable.
11. In the circumstances it is to be considered as to whether such a case should be transferred to the Court having territorial jurisdiction or proceedings should be quashed giving liberty to the complainant to lodge the complaint before the learned Magistrate having territorial jurisdiction. For this purpose entire scheme of the Code of Criminal Procedure should be kept in view so that interpretation of one section 10 in exercise of High Court's power under Section 482 cannot impede operation of another Section or provision of the Code.
12. In Section 2(h) of the Cr.P.C. 'investigation' has been defined as all proceedings under the Code for collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf. Therefore, authorization of a Magistrate is pre-requisite for holding an investigation by any police officer. Then who is the Magistrate competent to authorize such investigation?
13. The answer is related to 'local jurisdiction' as defined in Section 2(j) of the Code. It is defined therein that 'local jurisdiction' in relation to a Court or Magistrate means the local area within which the Court or Magistrate may exercise all or any of its or his powers under the Code.
14. Section 11 of the Code provides that in every district (not being a metropolitan area) there shall be established as many Courts of Judicial Magistrates of the first class and of the second class and at such places, as the State Government, after consultation with the High Court, by notification specify. There is no denial of the fact that 11 in exercise of such powers the State Government has already determined the jurisdiction of the Court of Chief Judicial Magistrate at Howrah as well as that of the Chief Judicial Magistrate at Barrackpore. If one Chief Judicial Magistrate usurps jurisdiction of another Chief Judicial Magistrate, it defeats the very object of establishment of different Courts of Judicial Magistrate contemplated under Section 11 of the Code. In such event every unscrupulous litigant will be tempted to file the complaint before any Court of Chief or Additional Chief Judicial Magistrate and ask him to transfer the same to the Court of competent jurisdiction which is not at all contemplated by the Legislature at the time of drafting the Code.
15. The ambit of interoperation has been expressed by Plowden in the following ways:
"Put into homely metaphor it is this: A judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases. (The Discipline of Law by Lord Denning, Second Impression 2009 at Page 11). "12
For the purpose of harmonious construction, I therefore, hold that if a complaint is filed and investigated by a Magistrate having no jurisdiction, the proceedings should be quashed instead of transferring the same to the Court of competent jurisdiction otherwise said provisions of the Code will be inoperative. Therefore, I am inclined to follow the ratio in Shipra Raj Roy reported in (2007) 1 C.Cr.L.R. (Cal) 800 whereby this Hon'ble Court has quashed the proceedings preserving right of the complainant to approach Court of competent jurisdiction in like cases and hold that act done by the Magistrate without jurisdiction is void and such void act should not be regularized by exercise of powers under Section 482 Cr.P.C. I further hold while interpreting combined effect of the provisions of Sections 2(h), 2(j), 11 and 177 Cr.P.C. the revisional Court should give equal emphasis on all such provisions and in interpreting ambit of Section 177, object of Sections 2(h), 2(j) and 11 Cr.P.C. cannot be ignored.
16. So, relying upon the above principles I hold that the instant proceeding is not sustainable in law which is accordingly quashed. The learned Chief Judicial Magistrate, Howrah is directed to return 13 the complaint/FIR to the complainant giving liberty to file the same before the appropriate Court to be dealt with according to law.
17. This revisional application is, thus, disposed of.
18. I make no order as to costs.
19. Let a copy of this order be sent to the learned Chief Judicial Magistrate, Howrah for his information and communication to the complainant in such manner as he would deem fit and proper within a period of fifteen days from the date of communication of this order.
20. Urgent certified photocopies of this order, if applied for, be supplied to the parties, on compliance of all requisite formalities.
(Syamal Kanti Chakrabarti, J.)