Delhi District Court
Rekha vs Sanjeev Kumar (Since Deceased) on 4 August, 2011
IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS
ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI
C.R. No. 19/11
REKHA
W/O. SH. SANJEEV KUMAR (SINCE DECEASED)
D/O. SH. AMIR SINGH MALIK, ADV.
R/O. H.NO.124, VILLAGE BHAROLA,
DELHI110033. ....REVISIONIST
VERSUS
1. SANJEEV KUMAR (SINCE DECEASED)
S/O. SH. R.P. TOMAR
2. R.P. TOMAR (FATHERINLAW)
S/O. SH. MANI RAM
3. SHABO DEVI (MOTHERINLAW)
W/O. SH. R.P. TOMAR
RESPONDENTS NO.1,2 & 3 ALL
R/O. H.NO.1338, HAFED ROAD,
PREM NAGAR,
ROHTAK,
HARYANA.
4. SUCHETA (SISTERINLAW)
W/O. SH. RAVINDER
D/O. R.P. TOMAR
5. RAVINDER (HUSBAND OF SISTERINLAW)
CR No.19/11
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S/O. SH. JAGDISH CHANDER
RESPONDENTS NO.4 & 5 BOTH
R/O. H.NO.95, SECTOR20,
SIRSA, DISTRICT SIRSA,
HARYANA
RESPONDENT NO.4 ALSO
R/O. DISTRICT AYURVEDIC OFFICER,
DISTRICT SIRSA,
HARYANA
6. PROMILA (SECOND WIFE)
W/O. SH. SANJEEV KUMAR
D/O. SH. JITENDER
R/O. 1338, HAFED ROAD,
PREM NAGAR,
ROHTAK,
HARYANA
7. JITENDER (FATHER OF SECOND WIFE)
S/O. SH. HARDEVA
8. INDRA (MOTHER OF SECOND WIFE)
W/O. SH. JITENDER
BOTH RESPONDENTS NO.7 & 8
R/O. GALI NO.5, ADARSH NAGAR,
GOHANA,
DISTRICT SONEPAT,
HARYANA ...RESPONDENTS
P.S. ADARSH NAGAR
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Date of Receipt : 06.07.2011
Date of Decision : 04.08.2011
ORDER
Pr. None for the petitioner.
Counsel for the respondents.
1. Vide this order, I shall dispose of the revision petition preferred against the order dated 01.06.2011, whereby the Ld. MM had dismissed the complaint filed by the revisionist holding that he has no territorial jurisdiction to entertain the complaint. Notice of the revision was sent to the respondents. Trial Court record was requisitioned.
2. I have heard the Ld. Counsel for the revisionist, Ld. Counsel for the respondents and perused the record.
3. The brief facts giving rise to this revision are that the revisionist filed a complaint against the respondents for the offence punishable U/s.494/495/107 & 109 of IPC R/w. Section 120B of IPC. It was alleged that the revisionist was married with Sanjeev Kumar on 06.12.1998 at Rohtak. There was matrimonial discord between the two and various litigations were filed. The revisionist had also alleged that during the subsistence of her marriage with Sh. Sanjeev Kumar, Sh. Sanjeev Kumar married again with Smt. Promila and this marriage was got performed by the respondent nos.2,3,4,5,7 & 8. Ld. MM after recording evidence, summoned the respondents. In pursuance to the summons, the respondents appeared before the Ld. Trial Court and later on they preferred CR No.19/11 Page 3 of 8 revision, wherein Ld. ASJ directed that first of all the issue of territorial jurisdiction be decided. Thereafter, Ld. MM again fixed the case for evidence, if any and when the revisionist refused to lead any evidence, Ld. MM passed the order and dismissed the complaint with the finding that the Court had no territorial jurisdiction to entertain the complaint.
4. Ld. Counsel for the revisionist submitted that for the offences punishable U/s.494 & 495, a special provision has been made U/s.182 Subsection 2 Cr.PC, which provides that "any offence punishable U/s.494 or 495 of the Indian Penal Code (45 of 1860) may be inquired into or tried by a Court, within whose locus jurisdiction, the offence was committed, or even was resided with his or her spouse by the first marriage or the wife by first marriage has taken up permanent residence after commission of the offence".
5. Ld. Counsel submitted that in the present case, no doubt the revisionist earlier resided at Rohtak with her spouse and the second marriage was performed at Gohana, Sonepat, Haryana, and therefore, under these two clauses, the territorial jurisdiction of this Court is not attracted, but as the revisionist is residing in Delhi i.e. within the territorial jurisdiction of this Court and, therefore, this Court got the jurisdiction to entertain and try this complaint. Ld. Counsel submitted that complainant had specifically mentioned in the title of the complaint itself that she is residing at House No.124, Village Bharola, Delhi, and from this fact itself, the Court assumes the jurisdiction. Ld. Counsel in support of his arguments, relied upon the CR No.19/11 Page 4 of 8 judgments reported at 1991 CRLJ 548 titled as Tekumalla Muneiah and Anr. Vs. Chittari Babunuri Ammanamma and Anr. and 1991 CRLJ 789 titled as Amrit Kaur Vs. Indrajit Kaur. Ld. Counsel submitted that the Trial Court has misread the judgment titled S. Karan Singh Sodhi Vs. Jitender Jit Kaur passed by Hon'ble Jammu & Kashmir High Court, as in Jammu & Kashmir, the amended provision of section 182, which was inserted in 1978 is not extended. So far as the other judgments titled as Neeraj Vs. State of Bihar is concerned, that is not attracted in the facts and circumstances of this case, as that judgment is with regard to the cases U/s.498A IPC and U/s.3 & 4 of Dowry Prohibition Act. Ld. Counsel submitted that there is specific averment and evidence on record that complainant was residing in Delhi. The Ld. Trial Court should have considered this fact and held that the Court is having the territorial jurisdiction. Even otherwise, the accused persons have submitted to the jurisdiction of this Court. They have moved exemption application from time to time without taking objection to the territorial jurisdiction of the Court and now, they cannot be permitted to raise this issue.
6. Ld. Counsel for the respondents submitted that Trial Court had rightly held that it has no territorial jurisdiction as there is no averment in the entire complaint that she had ever resided in Delhi and in the absence of any such averment in the complaint, the Trial Court cannot assume territorial jurisdiction. Ld. Counsel submitted that even the judgment, which was CR No.19/11 Page 5 of 8 relied upon by Ld. Counsel for the petitioner/revisionist provides that there must be some averment in the complaint. Ld. Counsel submitted that Trial Court has rightly applied the judgment titled as Rajiv Modi Vs. Sanjay Jain, wherein it was laid down that, "To constitute territorial jurisdiction, the whole or a part of 'cause of action' must have arisen within territorial jurisdiction of the Court". It is prayed that as the Trial Court has rightly decided the issue in view of the direction issued by the Ld. Sessions Judge, vide order dated 14.12.2007, there is no merit in the revision and the same be dismissed.
7. After hearing the arguments and going through the record, I found that as per the directions of Ld. Sessions Judge, the Trial Court was asked to first decide the issue of territorial jurisdiction. For deciding that issue, the Trial Court had to consider not only the complaint, but also the evidence. Ld. Sessions Judge directed in the order itself that if for that purpose evidence is required to be recorded, then the Court can do so. The Ld. MM also fixed the case for evidence. It is well settled principal of law that at the stage of summoning and at the stage of deciding any issue, the Court has not only to consider the pleadings, but also evidence. The requirement of law, so far as offences U/s.495 & 496 IPC is concerned, that the Court where the offence has been committed, or where the spouse was living had the territorial jurisdiction, but one more provision was added by Amended Act 45 of 1978 that the Court, where the wife had started residing also had territorial jurisdiction to try the offences punishable U/s.494 & 495 IPC. It is CR No.19/11 Page 6 of 8 well recognized that the issue of territorial jurisdiction is a mixed question of law and fact and according to the evidence, which has come on record, it is clear that the revisionist was residing in Delhi. CW3 examined by the Ld. MM himself on 23.01.2006 in the pre summoning evidence, has specifically stated, which is reproduced as under :
"On this, my daughter was shifted to 124, Bharola Village, Delhi, where my elder brother and his whole family is staying and the property is joint as Hindu Family of others".
8. From this evidence, it is clear that sometimes after 26.02.2003, the revisionist started residing at Delhi address, which the revisionist has mentioned in her complaint. The Ld. MM should have considered this evidence before throwing the complaint holding that it has no territorial jurisdiction, when complainant was residing within the territorial jurisdiction of Ld. MM. Even otherwise, procedural laws shall not overwrite the substantive law and shall not come in the way of imparting justice.
9. In view of the above position of law and provision of Section 182 Subsection 2 Cr.PC, in my opinion, the order passed by Ld. MM is not sustainable. The same is set aside. Complaint is restored to its original number. Ld. MM is directed to proceed with the complaint. Respondents are directed to appear before the Court of Ld. MM on 17.08.2011. Copy of CR No.19/11 Page 7 of 8 order and Trial Court record be sent back. Revision file be consigned to the Record Room.
Announced in open Court on today i.e. 04 August, 2011 th (V.K. BANSAL) ADDL. SESSIONS JUDGE ROHINI COURTS: DELHI CR No.19/11 Page 8 of 8