Allahabad High Court
Dharmendra Kumar Tiwari vs State Of U.P. And Another on 9 July, 2020
Equivalent citations: AIRONLINE 2020 ALL 1551
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 89 Case :- APPLICATION U/S 482 No. - 12537 of 2019 Applicant :- Dharmendra Kumar Tiwari Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kamla Kant Mishra,Varun Mishra Counsel for Opposite Party :- G.A.,Jitendra Kumar Mishra,Lok Nath Shukla Hon'ble Ram Krishna Gautam,J.
1. This application u/s 482 of Cr.P.C. has been filed by Dharmendra Kumar Tiwari against State of U.P. and Ajit Kumar Pandey with a prayer to quash impugned judgment and order dated 16.1.2019, passed by C.J.M., Bhadohi at Gyanpur, along with entire proceeding of Criminal Case No. 2596 of 2015, State Vs. Dilwar Tiwari and others, pending before above court, arising out of Case Crime No. 147 of 2013, u/s 498A, 504, 506 I.P.C. and 3/ 4 D.P. Act, P.S. Gopiganj, District Sant Ravidas Nagar (Bhadohi), because of being beyond jurisdiction of above Court, as per provisions of sections 177 and 178 of Cr.P.C.
2. Learned counsel for applicant argued that Dharmendra Kumar Tiwari was married with Madhulika, daughter of O.P. No. 2 on 2.12.2007, as per Hindu rituals. Child Ansh Tiwari was born on 7.1.2011 at Bangluru, where his parents were residing. On 2.11.2011 Sohan Lal Pandey, father of O.P. No. 2 and grandfather of Madhulika, took Madhulika, leaving behind a tiny child of ten months at Bangluru, to Mungra Badshahpur, District Jaunpur, where O.P. No. 2 was residing, because of being at job of Manager at Hawkins Company, Sathariya, Mungra Badshahpur, District Jaunpur. It was a journey by Flight, born by applicant. Then after Smt. Madhulika refused to cohabitate with applicant at Bangluru. Letters, dated 13/14.6.2013 as well as 1.7.2013, were written for and on behalf of applicant to Smt. Madhulika, requesting her to resume her marital obligations, but she was not amenable. Rather this case crime number was got registered at Police Station Gopiganj, District Sant Ravidas Nagar Bhadohi, with a concocted story on 7.3.2013. A Criminal Misc. Writ Petition No. 14704 of 2013 was filed before this court, with a prayer for quashing of F.I.R. of Case Crime No. 147 of 2013 and it was decided on 5.8.2014. Subsequently, a case for maintenance u/s 125 Cr.P.C. being Case No. 70/21 of 2013, was filed by Madhulika before the Court of Judicial Magistrate Bhadohi and it was decided on 4.12.2017 by the court of Principal Judge, Family Court, Bhadhohi, wherein a restoration application was moved and was decided on 28.8.2018. Investigation resulted in submission of charge sheet for offences punishable u/s 498A, 504, 506 I.P.C. and 3/ 4 D.P. Act, whereas no part of offence ever accrued within the territorial jurisdiction of Sessions Division Bhadohi or Police Station Gopiganj, because just after marriage Madhulika went with applicant at Bangluru, where she resided and from there she was taken by her grandfather to Mungra Badhshahpur, District Jaunpur. Hence cause of action, if any, may be said to have accrued either within the territorial area of Court of Bangluru or Jaunpur. But without any jurisdiction this case crime number was filed and cognizance was taken. This trial was in utter disregard to provisions of sections 177 and 178 of Cr.P.C. and thereby it was beyond jurisdiction of Court of C.J.M., Bhadohi. Madhulika, in her testimony, recorded as PW1 before Court of Additional Judge, Family Court, Bhadohi at Gyanpur, in Case No. 70 of 2013 u/s 125 Cr.P.C., has categorically stated that she was residing with her father at Mungra Badshahpur, District Jaunpur, and this piece of evidence was an evidence under section 3 of the Evidence Act. A proceeding u/s 482 No. 29730 of 2015, Dharmendra Kumar Tiwari and four others Vs. State of U.P. and another, was filed with a prayer to quash the proceeding of aforesaid criminal case, wherein, leaving applicant, for remaining accused persons, accusation was quashed. Then after applicant appeared before Court, wherein he was granted bail. Trial proceeded. Again a proceeding u/s 482 Cr.P.C. was filed before this court with a prayer for quashing proceeding because of devoid of jurisdiction and it was dismissed with an observation of moving discharge application before trial court. Thereafter discharge application was moved before trial court and those facts were mentioned. But the trial court dismissed above application without applying its judicial mind and giving reason for the same. Hence this application has been filed with above prayer for ends of justice and avoiding misuse of process of law.
3. Learned counsel for O.P. No. 2 has vehemently opposed the application by pressing counter affidavit, filed by O.P. No. 2, that it was a marriage solemnized in between applicant and Madhulika at parental house situated at Village Bhawanipur, within the area of P.S. Gopiganj, and Sessions Division Bhadohi at Gyanpur. Dowry, as per rituals, were given, then after Smt. Madhulika was taken to Bangluru, where persistent demand of dowry, in form of Rs. Five lacs, and cruelty with regard to it was there. Sometimes, it was partly fulfilled and persuasion with request was being made for not doing such cruelty. In between child Ansh was born. Then after cruelty accelerated. The grandfather of Madhulika brought her from Bangluru to Delhi and from Delhi to Mungra Badshahpur, District Jaunpur, where father of Madhulika was at job as Manager in Hawkins Company, Sathariya, District Jaunpur and was residing there at. Subsequently she was taken by applicant, her child was snatched and she was brought by Bolero and was thrashed, abused and left over near a tubewell of village Bhawanipur, P.S. Gopiganj, District Bhadohi, at 9.00 A.M. of 01.6.2013, from where she went to her ancestral house in above village and this report was got lodged, wherein two times proceedings were challenged in applications moved u/s 482 Cr.P.C. and this fact was taken by applicant. For husband both of applications were dismissed and this was not accepted by this court in above proceedings u/s 482 Cr.P.C. Though, an option for moving discharge application at appropriate stage was given. But the charge was already framed and trial was proceeding, wherein three witnesses including victim were examined and then after an application u/s 239 Cr.P.C. was moved with same repetition of allegations and vide impugned order it was rejected. This order is a reasoned and elaborate order. Offence punishable u/s 498A I.P.C. is a continuing offence. Admittedly, marriage was performed at Village Bhawanipur, within the area of P.S. Gopiganj, and of Sessions Division Bhadohi at Gyanpur, and since marriage, performed on 2.12.2007, there was persistent demand of dowry coupled with cruelty with regard to it. The sequence of cruelty was there, including one occurrence wherein grandfather of Madhulika had brought her to Jaunpur. This occurrence of 1.6.2013 was the last cruelty made by applicant and his relatives and this occurred as a part of cruelty at above village of Bhawanipur within the area of Sessions Division Bhadohi at Gyanpur. Hence this application is of no force, be dismissed.
4. Learned AGA has also vehemently opposed the application.
5. The submissions made by learned counsel for the applicant call for adjudication on pure questions of fact, which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. Veracity of the statements are material evidence of fact and is not to be ascertained in this proceeding u/s 482 Cr.P.C. by this Court. Because the same is within the jurisdiction of Trial Court and is a point of fact to be seen in the trial.
6. Offence punishable u/s 498A of I.P.C. was added in the Penal Code by Criminal Law (Second Amendment) Act of 1983, which came into force with effect from 25th of December, 1983. This section reflects the anxiety to extend protection of the weaker spouse. Traditionally in any society, a woman is subjected to the whims or caprices of man, especially when it relates to the relationship of husband and wife. Life for a woman in the family of the husband is sometimes so intolerable and so miserable that it drags the woman towards suicide and it is in such cases that Section 498-A I.P.C. comes into play. This offence is a continuing offence.
7. Section 177 of Chapter XI of Code of Criminal Procedure, 1973 provides about ordinary place of enquiry and trial that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. This section has been elaborately discussed by the Apex Court in Naresh Kavarchand Khatri Vs. State of Gujarat, (2008) 8 SCC 300 that whether an officer-in-charge of a police station has the requisite jurisdiction to make investigation or not? will depend upon a large number of factors, including those contained in section 177, 178 and 181 of the Code of Criminal Procedure. In a case where a trial can be held in any of the places falling within the purview of the aforementioned provision, investigation can be conducted by the officer-in-charge of the police station concerned, which has jurisdiction to investigate in relation there to. Section 181(4) Cr.P.C. is also relevant in this regard.
8. Section 178 in the Code Of Criminal Procedure, 1973 provides 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 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.
9. Meaning thereby section 178(b) of Cr.P.C. does not envisage a position in which one ingredient of the offence is committed at one place and other is committed at another place. But it speaks of cases when an offence is committed partly in one area and partly in another area, that the courts having jurisdiction in both the areas have got territorial jurisdiction to take cognizance of an offence.
10. In the present case, it is an undisputed fact that the marriage was performed at Village Bhawanipur, within the area of police station Gopiganj falling in the jurisdiction of Sessions Division Bhadohi at Gyanpur and accusation is of leaving Smt. Madhulika near Tubewell of Village Bhawanipur, P.S. Gopiganj, District Bhadohi, on 1.6.2013 at 9.00 A.M. after threshing and abusing her by her husband and his relatives, after snatching her son i.e. this part of offence was specifically said to have been committed within the area of P.S. Gopiganj, District Bhadohi. Now veracity of this part is to be seen by trial court on the basis of evidence led before it and it is within the jurisdiction of trial court itself. This court in exercise of inherent jurisdiction u/s 482 Cr.P.C. is not to analyse facts and evidence.
11. Judgement of Court of Additional District Judge/ Judge, Family Court, Bhadohi at Gyanpur, in Case No. 70 of 2013 dated 4.12.2017 has been very vehemently pressed by learned counsel for applicant. Wherein in this case too specific occurrence of snatching of child and leaving Smt. Madhulika near Tubewell of village Bhawanipur within district of Bhadohi, after threshing and abusing her on 1.6.2013 has been said and contention of applicant was not accepted by above court.
12. Applicant himself has filed M.C. No. 1023 of 2015 u/s 9 of Hindu Marriage Act before the Court at Bangluru and copy of petition has been filed by applicant, which reveals that the address of Madhulika has been given as of Village Bhawanipur, P.S. Gopiganj, District Bhadohi. Meaning thereby applicant himself has given the address of Smt. Madhulika as of district Bhadohi. It itself proves that Madhulika was residing at Village Bhawanipur within the area of Sessions Division Bhadohi at Gyanpur.
13. Applicant, along with others, had filed an Application u/s 482 No. 29730 of 2015, Dharmendra Kumar Tiwari and four others Vs. State of U.P. and another, with same contentions and after hearing both sides, this court, vide order dated 15.10.2015, has refused to give any relief to the applicant. Meaning thereby his contention was not accepted and there was no abuse of process of law with regard to present applicant-husband. Again subsequent proceeding u/s 482 Cr.P.C. was filed by applicant. Though, first one was dismissed and this subsequent proceeding i.e. Application u/s 482 No. 40268 of 2018, Dharmendra Vs. State of U.P. and another, was with specific defence regarding non-jurisdiction of court of C.J.M., Bhadohi at Gyanpur. This too was dismissed having no substance in it. Meaning thereby present contention was previously taken, it was heard and declined. Again this third round Application u/s 482 Cr.P.C. was filed with same contentions, which were previously declined twice.
14. No doubt an option was given for moving discharge application, if any, u/s 239, 227/228 Cr.P.C., as the case may be. But it was not raised at that time and charge has already been framed. Whereas trial court has specifically mentioned that trial was being proceeded wherein charge was framed. Hence as per law laid down by Apex Court in Ratilal Bhanji Mithani Vs. the State of Maharashtra and others, AIR 1979 SC 94, that after framing of charge the Magistrate remains with no jurisdiction for hearing over discharge application.
15. Apex Court in Palwinder Singh Vs. Balwinder Singh and others, (2008) 14 SCC 504, has propounded pre-trial charge acquittal is not permissible. Jurisdiction of trial court while exercising power u/s 227 or 239 Cr.P.C. Charges can be framed also on the basis of strong suspicion. Marshaling of facts and appreciation of evidence is not in the domain of the Court at that point of time.
16. Apex Court in R.S. Nayak vs A.R. Antulay and another, AIR 1986 SC 2045, has propounded that at the time of disposal of discharge application no detailed evaluation of the material or meticulous consideration of possible defences need be undertaken at this stage. Meaning thereby at the time of disposal of application u/s 227 or 239 Cr.P.C. meticulous analysis of facts and circumstances with marshaling of facts and application of judicial precedent is not to be made by trial court at that stage.
17. In the present case ,plea of jurisdiction was raised by applicant in two proceedings filed u/s 482 Cr.P.C. and it was declined. Charge was framed, but this was not disclosed. Hence option was given for moving of discharge application, if any, and it was decided by a reasoned and elaborate order. There is no abuse of process of law or failure of ends of justice.
18. Accordingly, this application merits its dismissal. Dismissed as such.
Order Date :- 09.07.2020 Pcl