Jharkhand High Court
Sushila Agarwal vs State Of Jharkhand on 6 August, 2010
Equivalent citations: 2011 CRI. L. J. 1100, 2011 (1) AIR JHAR R 40 (2010) 94 ALLINDCAS 910 (JHA), (2010) 94 ALLINDCAS 910 (JHA)
Author: D.G.R.Patnaik
Bench: D.G.R.Patnaik
IN THE HIGHT COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 689 of 2007
1. Sushila Agarwal
2. Alok Kumar Agarwal Petitioners
Verses
1. The State of Jharkhand
2. Shweta Agarwal Opposite parties
CORAM: THE HON'BLE MR. JUSTICE D.G.R. PATNAIK
For the Petitioners : Mr. R.K.Singh, Advocate
For the State : Mr. Jagannath Mahato, A.P.P.
For the O.P. No. 2 : Mr. Prabhat Kumar Sinha, Advocate
5/06.08.2010Heard counsel for the petitioners, counsel for the Opposite Party No. 2 as also counsel for the State.
2. The petitioners in this application under Section 482 Cr.P.C. have prayed for quashing the impugned order of cognizance dated 22.03.2007 passed by the S.D.J.M., Giridih in Complaint Case No. 99 of 2007 (T.R. Case No. 1052 of 2007) whereby cognizance for the offences under Section 498A of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act was taken against the petitioners and summons were issued against them directing them to face trial in this case.
3. Learned counsel for the petitioners submits that the impugned order has been passed without application of judicial mind and without appreciating the admitted facts of the case in proper perspective.
Referring to the allegations in the complaint petition and the supplementary statement made by the complainant/ Opposite Party No. 2 before the court and the order passed by the court below on the basis of the supplementary statement, learned counsel explains that the entire cause of action and place of occurrence, even as admitted by the complainant herself, was at Rohini, New Delhi and no part of any of the alleged offensive transactions took place either in Giridih or any such place within the jurisdiction of the court below. Under such circumstances, the learned court below cannot possibly exercise any jurisdiction for trial of the petitioners or the accused persons in the case at Giridih sinch such powers are restricted under the provisions of Sections 177 and 178 of the Cr.P.C.
To buttress his arguments, learned counsel refers to the judgements passed by this Court in the case of Ajay Kumar Jain Vs. State of Jharkhand 2007(2) JLJR 282 and in the case of Debabrata Saha & Others Vs. State of Jharkhand & another, 2007(2) JLJR 404 and also on the judgement of the Single Bench of this Court in the case of Santokh Singh Vs. State of Jharkhand & another, 2010 (1) JLJ 157.
4. Learned counsel for the Opposite Party No. 2, on the other hand, would argue that the grounds as raised by the petitioner appears to be misconceived and misleading in view of the fact that part of the transaction had also taken place at Giridih. Referring to the allegations contained in para 5 of the complaint petition, learned counsel explains that as alleged in the aforesaid paragraph of the complaint petition, on being telephonically informed about the birth of the female child by the complainant/Opposite Party No. 2, her husband and motherinlaw namely the present petitioners, not only refused to visit the complainant at her father's house to see the child but had also issued threats to her declaring that she would never be taken back to her matrimonial house. This, according to the learned counsel, amounts to causing mental cruelty to the lady which she has suffered while she was living at her father's house at Giridih.
5. I have heard counsel for the parties and I have also gone through the materials available on record including the complaint petition and the supplementary statement filed by the complainant/Opposite Party No. 2 before the court below.
6. From the perusal of the complaint petition it is evident that the Opposite Party No. 2 was married to the petitioner No. 2 on 02.05.2004 at Varanasi. Thereafter she was brought to her father's house at Giridih on 05.06.2004 and later, she was taken by her husband and inlaws to their house at Delhi. It was in course of her sojourn at her matrimonial house that differences cropped up allegedly on account of the dissatisfaction of the husband and the motherinlaw over the meagre amount of dowry which the lady has fetched from her parents. The lady began to be subjected to ill treatment and cruelty both mentally and physically. However, during this period, she had conceived and while she was in her family way, she was brought by her parents to Giridih where, on 15.08.2005, she delivered a girl child at the local hospital. It is alleged that when the husband and the motherinlaw was informed about the birth of the girl child, the accused husband and motherinlaw refused to see the child and had also refused to take the Opposite Party No. 2 back to their house and had abused the lady over telephone.
Certain other transactions are alleged in the complaint petition, all of which relate to matrimonial house of the lady at Delhi.
It further appears that though the place of occurrence was not specifically mentioned in the complaint petition, the complainant/Opposite Party No. 2, by filing a separate petition, had explained that the non mentioning of the place of occurrence in the complaint petition was an inadvertent lapse and has explained that the entire cause of action, for which the case was instituted by her, had occurred at Delhi and she had sought the permission of the court below to amend her complaint petition accordingly. Such amendment was allowed by the court below by its order dated 08.02.2007.
7. The submission of the counsel for the Opposite Party No. 2 that the threats issued to the Opposite Party No. 2 telephonically by the petitioners when they were intimated about the birth of the girl child, would constitute an act of cruelty which the lady had suffered at her father's house at Giridih and therefore the learned court below has the jurisdiction to try the accused persons of the case, is apparently misconceived and not tenable.
8. A similar issue came up for consideration before this court in the case of Ajay Kumar Jain (Supra) in which, considering the facts of the case and the allegations declaring that no part of the alleged transaction took place within the jurisdiction of the court which had taken cognizance of the offence, this Court after considering the provisions of Sections 177 and 178 Cr.P.C. and upon placing reliance on the ratio decided in the judgement of the Supreme Court in the case of Manish Ratan & Others Vs. State of M.P. & Anr. 2006 (8) Supreme 372 and in the case of Ramesh and Others Vs. State of T.N., AIR 2005 Supreme Court 1989 and also in the case of Y. Abraham Ajith Vs. Inspector of Police, Chennai & Anr., 2004(8) SCC 100, had held that when no part of the alleged acts were committed by the accused persons within the territorial jurisdiction of the court which had taken cognizance of the offences, such court had lacked jurisdiction to take cognizance and try the alleged offenders.
9. From the facts of the present case, admittedly the Opposite Party No. 2, on being brought by her brother and parents, left her matrimonial house and ever since her return to her paternal house, she has been living with her father. There is no allegation that during her stay at her father's house at Giridih, either her husband or any member of her matrimonial house had ever visited her at her father's house or indulged in any such act which would constitute cruelty as explained under the provisions of Section 498A of the Indian Penal Code. The contention of the counsel for the Opposite Party No. 2 that the telephonic threats would amount to cruelty is not acceptable. Even if such threats are taken into consideration, it would only suggest that the accused persons had declared their intention not to accept the lady in their house. Even otherwise, the allegations suggest that the petitioners have never initiated any telephonic call to the complainant or that they had threatened her and her parents for any specific demand through telephonic conversation. As has been held in the case of Debabrata Saha (Supra), an isolated instance of telephonic conversation, in itself would not constitute the offence as explained under Explanation No. 1 or Explanation No. 2 of the provisions of Section 498A of the Indian Penal Code and neither would the refusal of the petitioners to accede to the request of the Opposite Party No. 2 in itself, constitute a continuing offence or a conduct, consequence of which can be claimed to have been suffered by the complainant at the house of her parents at Giridih.
10. It appears that though the same Magistrate, before passing the impugned order of cognizance, had by allowing the complainant to amend her complaint petition, observed that even according to the admission of the complainant, the place of occurrence for which the grievance was raised by her, was at Delhi, yet the learned Magistrate appears to have ignored these aspects and passed the impugned order of cognizance without application of judicial mind and apparently in a mechanical manner.
11. In the light of the facts and circumstances and the discussions made above, I find merit in this application. Accordingly, this application is allowed. The impugned order of cognizance dated 22.03.2007 passed by the court below against the petitioners and the entire criminal proceeding pending against them following the impugned order of cognizance, before the court of S.D.J.M., Giridih vide Complaint Case No. 99 of 2007 (T.R. Case No. 1052 of 2007), is hereby quashed.
(D.G.R.Patnaik, J.) Birendra/