Meghalaya High Court
Smt Leena Narwani vs State Of Meghalaya on 21 July, 2017
Equivalent citations: 2018 CRI. L. J. 646, (2017) 177 ALLINDCAS 586 (MEG)
IN THE HIGH COURT OF MEGHALAYA
AT SHILLONG
CRL. REV. P. No. 10 of 2015
1. Smti Leena Narwani
W/o Shri Raj Narwani
2. Shri Raj Narwani
S/o Shri Hashumal Narwani
3. Ms Jharna Narwani
D/o Shri Raj Narwani,
All residents of A603/604 Green Acres,
Lokhanwala Complex,
Andheri (W), Mumbai-400053.
.... Petitioners
- VERSUS -
1. State of Meghalaya,
Represented by Secretary,
Department of Home Affairs and Police,
Shillong, Meghalaya.
2. Officer-In-charge
Sadar Police Station ... Respondents
3. Shri Vivek Narwani
R/o of A603/604 Green Acres,
Lokhanwala Complex,
Andheri (W), Mumbai-400053.
4. Smti Prerna Narwani
W/o Vivek Narwani,
R/o 101, 1st Floor, Bhagwati Heights
14th Road Khar (W)
Mumbai-4000052.
..... Proforma Respondents
BEFORE
HON'BLE MR JUSTICE VED PRAKASH VAISH
Present
Mr. S. Jindal ... Counsel for Petitioners
Mr. K. Khan ... Sr. P.P. for Respondents No. 1 and 2
Mr. M. Sharma ... Counsel for Respondent No. 4
Date of Hearing ... 14.07.2017
Date of Judgment ... 21.07.2017
Crl. Rev. P. No. 10 of 2015 Page 1 of 13
BY HON'BLE MR. JUSTICE V.P. VAISH
JUDGMENT
The petitioners have assailed order dated 27th August, 2013 passed by the learned Assistant Sessions Judge, Shillong in Sessions Case No. 21 of 2013 whereby the application, challenging the jurisdiction to try the case, filed by the petitioners (accused No. 2, 3 and 4 before learned trial court) was dismissed.
2. Succinctly stated, the facts of the case are that Smt. Prerna Narwani lodged a complaint on 5th April, 2013 to the A.S.P. (Crime) East Khasi Hills District, Shillong. The complainant stated that she was married to Shri. Vivek Narwani, who is a resident of Mumbai, on 14th December, 1999. Her parents incurred huge expenses at the time of the engagement ceremony, mehandi ceremony, ring ceremony and wedding ceremony. Her parents gave gifts (stridhan) to her at the time of her marriage in the form of gold, ornaments, diamonds, silver articles and many other expensive gifts and household items totalling more than Rs. 25 lakhs which are all in the custody of her in-laws. Soon after marriage, her husband and his parents, namely Shri. Raj Narwani and Smti. Leena Narwani, started ill treating her with severe mental and physical cruelty with the demand of dowry. After marriage, she realised that her husband is an alcoholic, a professional gambler, a person of immoral character and a womanizer. Her husband used to beat her by the active support and participation of his parents. During the month of December, 2000, her husband even tried to kill her by pushing her out of a running car, for which she had undergone treatment at Nanavati Hospital. In the year 2001, she had conceived and her mother-in-law started pressurizing her to find out the sex of the child and because of her constant harassment, in the fifth month, she found out the sex of Crl. Rev. P. No. 10 of 2015 Page 2 of 13 the child to be female. When she came to know of the same, her mother-in-law got totally furious and forcefully took her to the doctor to abort the child as she wanted only a male child. Though, the doctor informed that it is very dangerous to abort the child at this stage, her mother-in-law took her to a quack at a private clinic and set up her abortion. Her father-in-law and husband were also party to the same. Before the birth of her second daughter, she had to undergo another abortion as the fetus was a female. She was compelled to move to another house at Blue Mountain, Shastri Nagar, Mumbai which was co- owned by her father-in-law and her husband. The interference of her in- laws remains as it was and they along with her husband continued to ill treat her and her daughters. Her husband and in-laws are continuously insisting her to consent for divorce and to allure her to achieve their ends. In October, 2010 her in-laws gifted a flat No. 2105, Blue Mountain at Shastri Nagar to her, and later, a sum of Rs. 25 lakhs was gifted to her elder daughter Ritisha and now they are forcing her to give consent for mutual divorce as they have made separate provisions for her and her daughters. Her husband and in-laws desperately want a divorce so that they can arrange for a second marriage of their only son, with the hope of having a male issue. She has also alleged that ultimately her husband and her in-laws, along with her sister-in-law Jharna Narwani, set their norms that since she had not given her consent for divorce, her father must return the price of the flat and money. Since the gifts of flat and money cannot be revoked, they forced her to go back to Shillong for realization of the money from her father. In Shillong, she and her father are receiving frequent calls from her husband, her in-laws, her sister-in-law Jharna Narwani, and from other unknown phones and also some unknown caller is calling her on their behalf that without the money she should not dare to go back to Crl. Rev. P. No. 10 of 2015 Page 3 of 13 Mumbai, and they told her father that unless their demand is fulfilled, they shall kidnap her daughters for ransom through a hired person. She was unable to arrange the huge amount to fulfil the demands of her husband and in-laws and she also cannot go back to Mumbai to join her daughters who are in the temporary custody of her mother. Her husband and in-laws are dangerous and desperate in nature and they will not hesitate to cause harm to her, her father and/or her daughters. On the basis of said complaint, P.S. case No. 94 (4) 13 under Section 498 A/506 of Indian Penal Code (herein after refer to as „IPC‟) read with Section 4 of Dowry Provision Act, 1961 was registered at Sadar Police Station, Shillong.
3. After investigation, a charge sheet for the offence under Sections 498 A/506/313/315/326 I.P.C. read with Section 4 of Dowry Provision Act, 1961 dated 26th June, 2015 against accused persons namely Shri. Vivek Narwani, Shri. Raj Narwani, Smti. Leena Narwani and Miss Jharna Nirwani was filed.
4. After receiving the summons, the petitioners who are accused number 2, 3 and 4 filed a petition under Section 177 read with Section 227 of the Code of Criminal Procedure (herein after referred to as „the Code‟) and prayed for discharge of the application due to lack of jurisdiction. The said application was dismissed by the learned trial court vide impugned order dated 27th August, 2015.
5. Feeling aggrieved by the said order, the petitioners have filed the present petition.
6. Learned counsel for the petitioners have urged that the marriage was solemnized at Mumbai, the complainant lived with her husband at Mumbai and that all the alleged offences including the demand of dowry had arisen at Mumbai, and that no part or cause of Crl. Rev. P. No. 10 of 2015 Page 4 of 13 action arose at Shillong and therefore, the Court at Shillong has no jurisdiction to try the present case.
7. Learned counsel for the petitioners further submitted that the allegation of threatening phone calls made after she came to Shillong does not confer jurisdiction to the Court at Shillong. The counsel has pointed out that the alleged phone calls were received less than 24 hours, as the complainant returned to Shillong on 04.04.2013 and the complaint was filed on 05.04.2013.
8. Learned counsel for the petitioners also submitted that the offence under Section 503 IPC is committed when any person threatens other/another person. According to him, the offence is committed when a person utters a threat to another person, and even if it is assumed that the complainant had received threatening calls, the same were uttered at Mumbai and the Court at Shillong has no jurisdiction to try the case. The counsel for the petitioners also submitted that clause (d) of Section 178 and Section 182 of the Code are not applicable to the facts of present case.
9. Another submission of the learned counsel for the petitioners is that, the learned Assistant Sessions Judge is not empowered to try the present case and that the learned Sessions Judge should have tried the present case.
10. On the other hand, learned senior P.P. for the State submitted that the offence is a continuing offence and clause (c) of Section 177 of the Code is applicable. He has also submitted that any of the Courts i.e. Shillong or Mumbai, has the jurisdiction to try the present case.
Crl. Rev. P. No. 10 of 2015 Page 5 of 13
11. Learned counsel for respondent no. 4/complainant submitted that the petitioners had filed a Transfer Petition bearing Transfer Petition (Criminal) No.20/2015 on the same allegations and that the said petition was dismissed by the Apex Court on 20th February, 2015. According to him the present petition is not maintainable.
12. I have given my anxious thought to the submissions made by learned counsel for both the parties. I have also perused the material on record.
13. Chapter XIII of the Code of Criminal Procedure, 1973 deals with "Jurisdiction of the Criminal Courts in Inquiries and Trials". Sections 177 to Section 179 of the Code are relevant which are 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.
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 a 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.
Section 179. Offence triable where act is done or consequence ensues - When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued."
Crl. Rev. P. No. 10 of 2015 Page 6 of 13
14. A bare perusal of the aforesaid provisions clearly reveal that the general rule is that the offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. Section 178, inter alia, provides for place of inquiry or trial when it is uncertain in which of several local areas an offence was committed, or where the offence was committed partly in one local area and partly in other, or where it is consisted of several acts done in different local areas, it could be inquired into or tried by a Court having jurisdiction over any of such local areas. Thus, it is clear that the various provisions, which empower the Court for inquiry or trial of a criminal case, provide that there is no absolute provision that the offence committed beyond the local territorial jurisdiction cannot be investigated, inquired into or tried.
15. It is pertinent to mention here that the Code itself makes an exception to the general rule. The rule that every offence shall be tried by a Court, within whose jurisdiction it was committed, is not an unexceptional principle. Sections 178, 179 and 181 of the Code are examples of exceptions made by the Code.
16. The legislature in its wisdom has used the precautionary word „ordinarily‟ to indicate that the rule is not invariable in all cases. Section 178 of the Code suggests that if there is uncertainty as to where, among different localities, the offence would have been committed, the trial can be held in a Court having jurisdiction over any of those localities. The scope of the provision has been further widened by stating that, in case where the offence was committed partly in one local area and partly in another local area, the Court in either of the localities can exercise jurisdiction to try the case. Further, Section 179 of the Code stretches its scope to a still wider horizon. Section 179 of Crl. Rev. P. No. 10 of 2015 Page 7 of 13 the Code makes it clear that if anything happen as a consequence of the offence, the same may be inquired into or tried by a Court within whose local jurisdiction such thing has been done, or such consequence has ensued. Thus, even the courts within whose local jurisdiction the repercussion/ effect of the criminal act occurs, would have jurisdiction in the matter.
17. Therefore, the aforesaid provisions in the Code should have been kept in mind when the question regarding the territorial jurisdiction of the Court to try the offence was sought to be determined.
18. A similar question cropped up before the Hon‟ble Supreme Court in the case 'Smt. Sujata Mukherjee v. Prasad Kumar Mukherjee', AIR 1997 SC 2465. In the said case, the wife was the appellant before the Supreme Court and the husband, his parents and the two sisters-in-law of the appellant were the respondents. The allegation of the appellant was that, on account of dowry demands, she had been maltreated and humiliated not only in the house of her in- laws at Raigarh, but as a consequence of such events, the husband of the appellant had also come to the house of her parents at Raipur and assaulted her. On behalf of the respondents in the said case, it was argued that the criminal case was not maintainable before the said learned Chief Judicial Magistrate, because the cause of action took place only at Raigarh which was outside the territorial jurisdiction of the learned Magistrate at Raipur. A prayer was made to quash the summons issued by the learned Chief Judicial Magistrate. The learned Chief Judicial Magistrate was not inclined to quash the summons or to transfer the criminal case to the competent court at Raigarh, and the criminal revision petitions were filed before the High Court. Both the said criminal revision petitions were disposed of by the High Court by Crl. Rev. P. No. 10 of 2015 Page 8 of 13 holding that the case against the husband of the appellant alone is maintainable at Raipur, and in respect of the other respondents related to the incidents taking place at Raigarh, the criminal case is not maintainable at Raipur. The said order was challenged by the appellant- wife before the Hon‟ble Supreme Court. The Apex Court considered the various provisions of the Code of Criminal Procedure with reference to the offences under Sections 498-A, 406/34 IPC, and it was held that clause (c) of Section 178 of the Code is attracted and the Magistrate at the wife‟s parents‟ place also has jurisdiction to entertain the complaint. It was also observed that in view of clause (b) and (c) of Section 178 of the Code, the offence was a continuing one, having been committed in more local areas than one and since one of the local areas being Raipur, the learned Magistrate had jurisdiction to proceed with the criminal case.
19. In another case 'State of M.P v. Suresh Kaushal and Another', (2003) 11 SCC 126, the Hon‟ble Supreme Court after considering the provisions of Section 179 of the Code observed as under:
"6. The above Section contemplates two courts having jurisdiction and the trial is permitted to take place in any one of those two courts. One is the court within whose local jurisdiction the act has been done and other is the court within whose local jurisdiction the consequence has ensued. When the allegation is that the miscarriage took place at Jabalpur it cannot be contended that the court at Jabalpur could not have acquired jurisdiction as the acts alleged against the accused took place at Indore."
20. The Judgment in the case of Suresh Kaushal (supra) has been relied upon by the Apex Court in 'Sunita Kumari Kashyap v. State of Bihar & Another', AIR 2011 SC 1674. In the said case, the appellant-wife got married to Sanjay Kumar Saini- Respondent no. 2 in the said Petition, on 16-4-2000 at Gaya. The appellant-wife lodged the Crl. Rev. P. No. 10 of 2015 Page 9 of 13 complaint on the allegations that at the time of marriage, her father had gifted all the household articles and a sum of rupees two lakhs fifty thousand in cash. In addition to the same, her father had spent so much money to solemnize the marriage and for gifts to other family members of her husband. In spite of the same, immediately after the marriage, she was blamed for bringing less dowry by her in-laws and they started harassing her and torturing her. Her husband also use to support his family members in torturing her. It was also her grievance that her husband demanded an additional amount of rupees four lakhs from her parents for renovation of their house at Ranchi. When she was pregnant, she was forcible taken out of her matrimonial home at Ranchi and brought to her parental home at Gaya. After giving birth to a girl child, the circumstances became even worse and everyone started blaming her that she had brought an additional burden on them. After sometime her husband came up with a new demand that unless her father gives his house at Gaya to him, she will not be taken back to her matrimonial home at Ranchi. Having continuous torture and unbearable nature of treatment by her husband and in-laws for years and years, and having no other option the appellant lodged a First Information Report under Section 498A and 406 read with Section 34 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 at Magadh Medical College Police Station, Gaya. Learned Chief Judicial Magistrate took cognizance of offences punishable under Sections 498A and 406 read with Section 34 IPC and Sections 3 and 4 of the Dowry Prohibition Act against all of them, and transferred the case to the Court of Sub- Divisional Judicial Magistrate, Gaya for trial. An objection was raised that the Court at Gaya had no jurisdiction, and the learned Magistrate, after considering all the related materials, rejected the said objection. Aggrieved by the said order, the accused person preferred Criminal Misc Crl. Rev. P. No. 10 of 2015 Page 10 of 13 Petitions before the High Court of Judicature at Patna. The High Court found that the proceedings were not maintainable for lack of jurisdiction and quashed the entire proceedings in Magadh Medical College Police Station, Gaya with liberty to the appellant therein to file the same in the appropriate Court. Following the said order, the Criminal Misc Petition filed by the husband (Respondent no.2 therein) was allowed and the proceedings were quashed against him. Aggrieved by the said orders the appellant -wife filed the appeals before the Hon‟ble Supreme Court. After considering various provisions in the Code of Criminal Procedure, the Hon‟ble Supreme Court held that, in view of sections 178 and 179 of the Code, the offence was a continuing one, having been committed in more local areas than one, and since one of the local areas being Gaya, the learned Magistrate at Gaya has jurisdiction to proceed with the criminal case. In other words, the offence was a continuing one and the episode at Gaya was only a consequence of the continuing offence of harassment and ill treatment meted out to the complainant, hence, clause (c) of Section 178 is attracted.
21. In the instant case, the complainant -wife has alleged that she was ill treated by her husband and her in-laws, that she was beaten by her husband, and that her husband had even pushed her out from a running car. She has also alleged that the accused persons forcibly got her to abort. She has further alleged that her in-laws gifted a flat at Shastri Nagar to her and a sum of Rupees 25 lakhs was gifted to her daughter, since her husband and in-laws wanted her to give consent for divorce, and that they told her that since she had not given the consent for divorce, her father must return the price of flat and the gifted money. She was forced to leave her matrimonial home due to the cruelties unleashed upon her and demand to repay the gifted amount Crl. Rev. P. No. 10 of 2015 Page 11 of 13 by the petitioners at Mumbai. Thus, as a consequence, the complainant had to return back to her parental home at Shillong. Since the consequence of the offence which was committed at Mumbai occurred at Shillong, therefore the Court at Shillong would have Jurisdiction to try the case.
22. Further, it is also pertinent to mention here that the petitioners have not disclosed in the petition that earlier a transfer petition was filed before the Hon‟ble Supreme Court bearing Transfer Petition (Criminal) No.20/2015 in which the jurisdiction of the Courts at Shillong was challenged. Para VI of the grounds taken in the said petition, states that the petitioners had alleged that all the offences are alleged to have been committed in Mumbai except that the complainant alleged to have received threatening calls in Shillong which is false, and on that count alone, the Meghalaya police could not have assumed jurisdiction of the alleged offences. The Hon‟ble Supreme Court dismissed the said Transfer Petition vide order dated 20th February, 2015. In view of the same the petitioners cannot be allowed to re-urge the same ground in this Court.
23. However, the other submission of the learned counsel for the petitioners appears to be justified. Section 28 of the Code provides for the sentences which High Courts and Sessions Judges may pass. The same reads as under:
"28. Sentences which High Courts and Sessions Judges may pass-
(1) A High Court may pass any sentence authorise by law.
(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High Court.Crl. Rev. P. No. 10 of 2015 Page 12 of 13
(3) An Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years."
24. A bare reading of sub-section (3) of Section 28 of the Code makes it clear that an Assistant Sessions Judge is not empowered to pass a sentence of imprisonment for life or for imprisonment for a term exceeding ten years. In this case, the petitioners have been charge sheeted, inter alia, for the offences under Section 313/326 IPC which are punishable with imprisonment for life, or imprisonment for ten years and fine. Thus, since in the present case, the petitioners have been charge sheeted for the offences punishable with imprisonment for a term exceeding ten years, the Assistant Sessions Judge is not empowered to deal with the present case.
25. In the light of aforesaid discussion, the petition is disposed of with the directions that the learned District and Sessions Judge, Shillong will withdraw the Sessions Case No. 21 of 2013 (P.S. case No. 94 (4) 13) under Section 498-A/506/313/315/326 IPC R/w Section 4 of Dowry Prohibition Act from the court of the Assistant Sessions Judge, Shillong and to try the same in accordance with law.
26. With the aforesaid observations the revision petition stands disposed of.
27. Trial court record be sent back forthwith.
CRL. Misc. Case No. 33 of 2015
The application is dismissed being infructuous.
JUDGE Dated, the 21st July, 2017 V. Lyndem Crl. Rev. P. No. 10 of 2015 Page 13 of 13