Patna High Court - Orders
Anshu Devi vs The State Of Bihar on 16 March, 2010
Author: Dipak Misra
Bench: Dipak Misra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr. Misc. No. 2997 of 2010.
ANSHU DEVI, WIFE OF ARUN SINGH, R/O VILL. -
GABADH, P.S. & DIST. SHEIKHPURA - PETITIONER
Versus
THE STATE OF BIHAR ............OPPOSITE PARTY.
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For the Petitioner:- Mr. Ashwini Kumar Sinha, Advocate.
For the Opp.Party:- Mr. Dr. Mayanand Jha, A.P.P.
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PRESENT- THE HON'BLE THE CHIEF JUSTICE
ORDER
(16.03.2010)
Dipak Misra, C.J.-
Invoking the inherent jurisdiction of this Court
under Section 482 of the Code of Criminal Procedure the
petitioner has prayed for quashment of the order dated
07.01.2010passed by the learned Additional Sessions Judge, Fast Track Court No. IV, Sheikhpura in Sessions Trial No. 99 of 2008 whereby he has declined to entertain the petition of the accused-petitioner assailing the jurisdiction of the trial court to proceed with the trial.
2. Bereft of unnecessary details the facts which are required to be exposited for the purpose of adjudication of this application are that the accused petitioner was sent up for trial along with others for offences punishable under Sections 304B, 498A, 323, 497, 302, 201, 120B of the 2 Indian Penal Code and Section 3/4 of the Dowry Prohibition Act, 1961 in Sessions Trial No. 99 of 2008 before the learned Additional Sessions Juge, Fast Track Court No. IV, Sheikhpura. A petition was filed on 17.11.2009 under Section 227 of the Code of Criminal Procedure for discharge of the accused persons on the ground that the material on record do not constitute the offences as alleged against the accused person. Another application was filed on 09.12.2009 that the occurrence had taken place at Deoghar in the State of Jharkhand inasmuch as the deceased was staying with her husband, who was working in a Dairy Farm at Deoghar from 2003 and, therefore, the court at Sheikhpura had no territorial jurisdiction to try the case.
3. The learned trial judge rejected the application for discharge on the foundation that there were, prima facie, material on record to implicate the accused petitioner in the crime in question. While dealing with the application pertaining to jurisdiction, the learned trial judge has expressed the view that on a perusal of the allegations, it would be quite vivid that the place of 3 initiation of the crime in question is Sheikhpura and it ultimately culminated at Deoghar. The trial court in such circumstances came to the conclusion that it had jurisdiction to try the case and accordingly the petition dated 09.12.09 filed by the accused petitioners was rejected.
4. I have heard Mr. Ashwini Kumar Sinha, learned counsel for the petitioner and Mr. Dr. Mayanand Jha, learned Additional Public Prosecutor for the State.
5. It is submitted by Mr. Sinha, learned counsel for the petitioner that the learned trial judge has fallen into error by expressing the opinion that he had the territorial jurisdiction to conduct the trial though there is material on record that the alleged occurrence took place at Deoghar in the State of Jharkhand and no real part of cause of action has arisen at Sheikhpura. To bolster his submission he has commended me to the decision rendered in Bhura Ram Ors. V. State of Rajasthan & Anr., 2008 (3) PLJR (SC)
367.
6. Per contra, it is urged by Mr. Jha that the marriage had taken place at Sheikhpura, the demand of 4 dowry and the acts of cruelty had taken place within the territorial jurisdiction of the trial court and, hence, it had jurisdiction to try the case despite the factum that the death had occurred at Deoghar in the State of Jharkhand. It is also contended by Mr. Jha that the offence under Section 498A I.P.C. is a continuing one and the date having nexus with the demand of dowry, the learned trial judge has correctly held that he had jurisdiction to try the case.
7. Regard being had to the rivalised submissions raised at the Bar it is seemly to refer to Chapter XIII of the Code of Criminal Procedure, 1973, (for brevity `the Code‟). It deals with Jurisdiction of Criminal Courts in inquiries and trials. Section 177, which deals with `Ordinary place of inquiry and trial‟, reads as follows:
"177. Ordinary place of inquiry and trial. - Every offence shall ordinarily be inquired into and trial by a Court within whose local jurisdiction it was committed."
Section 178 of the Code relates to Place of inquiry or trial. The said provision is as follows:
"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 5 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.
8. The aforesaid two provisions came to be interpreted in Y. Abraham Ajith and ors. v. Inspector of Police, Chennai and Anr., (2004) 8 SCC 100. In the said decision, the Apex Court after referring to the decisions rendered in Purushottamdas Dalmia v. State of W.B., AIR 1961 SC 1589, L.N. Mukherjee v. State of Madras, AIR 1961 SC 1601, Banwarilal Jhunjhunwala v. Union of India, AIR 1963 SC 1620 and Mohan Baitha v. State of Bihar, (2001) 4 SCC 350 held that the word `ordinarily‟ used in Section 177 has its signification and it indicates that the provision is a general one and must be read subject to the special provisions contained in the Code. It was held therein that 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 6 the position different and, hence, the expression "cause of action" in the background of the Code has its own significance. Their Lordships proceeded to deal with the expression "cause of action" as follows:
"17. 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. In 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.
18. In Halsbury's Laws of England (4th Edn.) 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 a 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."7
9. In Bhura Ram & Ors. (supra) the Apex Court was dealing with the jurisdiction of the court to try the offences punishable under Sections 498A, 406 and 147 IPC. Their Lordships after referring to Y. Abraham Ajith and Ors. (supra) analyzed the facts and eventually held thus:
"4. The facts stated in the complaint disclose that the complainant left the place where she was residing with her husband and in-laws and came to the city of Sri Ganganagar, State of Rajasthan and that all the alleged acts as per the complaint had taken place in the State of Punjab. The Court at Rajasthan does not have the jurisdiction to deal with the matter. On the basis of the factual scenario disclosed by the complainant in the complaint, the inevitable conclusion is that no part of cause of action arose in Rajasthan and, therefore, the Magistrate concerned has no jurisdiction to deal with the matter. As a consequence thereof, the proceedings before the Additional Chief Judicial Magistrate, Sri Ganganagar are quashed. The complaint be returned to the complainant and if she so wishes she may file the same in the appropriate court to be dealt with in accordance with law."
10. In this context I may refer with profit to the decision rendered in Manish Ratan and Ors. v. State of M.P. and Anr., (2007) 1 SCC 262. In the said case the appellant 1 was married with respondent no. 2 therein in 8 the District of Tikangarh and they were living at their matrimonial home at Jabalpur. A complaint was lodged by the father-in-law of the appellant 1 at the Police Station Jabalpur alleging that the appellants had been ill-treating his daughter and demanded dowry. The wife lodged another First Information Report against the appellant and others at Police Station Datia wherein a criminal case was registered. In the said complaint it was stated that the incident had taken place at Jabalpur. It was mentioned in the complaint that the wife was ill-treated by the mother- in-law and sister-in-law so much that she left her house and saved her life by some means and reached her uncle‟s house at Bhopal. An application was moved before the High Court questioning the jurisdiction of the court of Chief Judicial Magistrate, Datia. The High Court dismissed the revision holding that the offence being a continuing one, Datia court had jurisdiction to take cognizance of the offence. The Apex Court referred to Sections 177 and 178 of the Code and came to hold that in the obtaining factual matrix the offence could not be held to be continuing only because the complainant was forced 9 to leave her matrimonial home.
11. In the case at hand, on the basis of the complaint petition, a direction was issued to set the criminal law in motion by registering a First Information Report, which would reveal that Rinku Devi, the daughter of the informant went to her matrimonial Village Gawaya in the year 2003 and the accused Ganesh Dutt, the husband did not show good behaviour and did not establish marital relationship with his wife and, being influenced by the accused Anshu Devi, her husband Ganesh Dutt often used to assault her. It is also alleged that accused Ganesh Dutt had illicit relationship with his elder brother‟s wife accused Anshu Devi and, due to the said illicit relationship, Rinku Devi was tortured. It is further alleged, Ganesh Dutt had opened a Dairy Farm at Deoghar with the aid and assistance of Anshu Devi and when the daughter of the informant on 12.03.2006 objected to the illicit relationship between the accused Ganesh Dutta and Anshu Devi, the accused persons assaulted and eventually murdered her.
12. In this factual background it is to be seen 10 whether the cause of action had arisen at Sheikhpura. Submission of Mr. Jha is that 498A offence is a continuing offence and a charge sheet has been filed in respect of the said offence after a thorough inquiry by the investigating agency.
13. In State of Bihar v. Deokaran Nenshi and Anr., AIR 1973 SC 908, the Apex Court dealing with the concept of continuing offence expressed the view as follows:
"5. Continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non- compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission in committed once and for all."
14. In Sujata Mukherjee (Smt.) v. Prashant 11 Kumar Mukherjee, (1997) 5 SCC 30, the Apex Court while dealing with the offence to be continuing one referred to the specific allegations that had been made against the husband and keeping in view the fact situation set aside the decision of the High Court stating as follows:
"3. At the hearing of these appeals, Mr. Gambhir, the learned counsel appearing for the appellant, has submitted that it will be evident from the complaint that the appellant has alleged that she had been subjected to cruel treatment persistently at Raigarh and also at Raipur and incident taking place at Raipur is not an isolated event, but consequential to the series of incidents taking place at Raigarh. Therefore, the High Court was wrong in appreciating the scope of the complaint and proceeding on the footing that several isolated events had taken place at Raigarh and one isolated incident had taken place at Raipur. Hence, the criminal case filed in the Court of the Chief Judicial Magistrate, Raipur was only maintainable against the respondent husband against whom some overt act at Raipur was alleged. But such case was not maintainable against the other respondents."
Eventually, their Lordships in paragraph 7 have held as follows:
"7. ...............We have taken into consideration the complaint filed by the appellant and it appears to us that the complaint reveals a continuing offence of maltreatment and humiliation meted out to the appellant in the hands of all the accused respondents and in such continuing offence, on some occasions all the respondents had taken part and on other 12 occasion, one of the respondents had taken part. Therefore, clause (c) of Section 178 of the Code of Criminal Procedure is clearly attracted. ......"
15. In Ramesh and others v. State of Tamil Nadu, AIR 2005 SC 1989, while dealing with territorial jurisdiction in relation to an offence under Section 498A IPC, the Apex Court had expressed the view thus:
"11. In the view we are taking, it is not necessary for us to delve into the question of territorial jurisdiction of the Court at Trichy in detail. Suffice it to say that on looking at the complaint at its face value, the offences alleged cannot be said to have been committed wholly or partly within the local jurisdiction of the Magistrate‟s Court at Trichy. Prima facie, none of the ingredients constituting the offence can be said to have occurred within the local jurisdiction of that Court. Almost all the allegations pertain to acts of cruelty for the purpose of extracting additional property as dowry while she was in the matrimonial home at Mumbai and the alleged acts of misappropriation of her movable property at Mumbai. However, there is one allegation relevant to Section 498-A from which it could be inferred that one of the acts giving rise to the offence under the said Section had taken place in Chennai. It is alleged that when the relations of the informant met her in-laws at a hotel in Chennai where they were staying on 13-10-1998, there was again a demand for dowry and a threat to torture her in case she was sent back to Mumbai without the money and articles demanded.
12. Thus the alleged acts which according to the petitioner constitute the offences under Sections 498-A and 406 were done by the accused mostly in Mumbai and partly in Chennai. Prima facie, 13 there is nothing in the entire complaint which goes to show that any acts constituting the alleged offences were at all committed at Trichy."
16. I have referred to the aforesaid decision in extenso to appreciate the factual scenario that the place of residence does not ipso facto give rise to the cause of action. It is worth noting in Manish Ratan and Ors. (supra) the Apex Court has held that the term `ordinarily‟ has to be construed in terms of the provisions contained in Section 178(c) of the Code.
17. In the obtaining factual matrix, as the allegations would expose, the entire occurrence had taken place at Deoghar. What is alleged is that at one point of time the husband had come to the in-laws‟ house and had made a demand which was satisfied. In Y. Abraham Ajith and Ors. (supra), their Lordships after referring to Sujata Mukherjee(Smt) (supra) and dwelling upon the factual background in the said case distinguished the same by holding as follows:
"11. ........... 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 14 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."
18. In view of the aforesaid analysis I am of the considered opinion that no cause of action had arisen at Sheikhpura and the cause of action had arisen within the territorial jurisdiction of the District of Deoghar in the State of Jharkhand.
19. Though I have held that the learned trial judge did not have jurisdiction to proceed with the trial that would not be a ground for quashment of the charge sheet. In this regard I may fruitfully refer to the decision in Satvinder Kaur v. State (Govt. of N.C.T. of Delhi) and another, AIR 1999 SC 3596, wherein the Apex Court has held as follows:
"10. It is true that territorial jurisdiction also is prescribed under sub-section (1) to the extent that the officer can investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such police station would have power to inquire into or try under the provisions of Chapter XIII. However, sub- section (2) makes the position clear by providing that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered to investigate. After investigation is completed, the result of such investigation is required to be submitted as 15 provided under Ss. 168, 169 and 170. Section 170 specifically provides that if, upon an investigation, it appears to the officer-in-charge of the police station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a magistrate, such officer shall, forward the accused under custody to a Magistrate, empowered to take cognizance of the offence upon a police report and to try the accused or commit for trial. Further, if the Investigating Officer arrives at the conclusion that the crime was not committed within the territorial jurisdiction of the police station, then F.I.R. can be forwarded to the police station having jurisdiction over the area in which crime is committed. But this would not mean that in a case which requires investigation, the police officer can refuse to record the FIR and/or investigate it."
20. In view of the aforesaid enunciation of law the order passed by the learned trial judge is set aside and it is directed that the learned trial judge shall return the charge sheet to the concerned Investigating Officer for filing it before the court of competent jurisdiction.
21. Resultantly, the application is allowed to the extent indicated above.
( Dipak Misra, C.J. ) Patna High Court.
The 16th March, 2010.
AFR.
Dilip.