Patna High Court - Orders
Binay Bikash @ Binay Vikas @ Mantu & Ors vs State Of Bihar & Anr on 12 April, 2012
Author: Rajendra Kumar Mishra
Bench: Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.33911 of 2009
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1. Binay Bikash @ Binay Vikas @ Mantu, son of Binay Kumar Gupta.
2. Binay Kumar Gupta @ Binay Kumar, son of Late Kutai Sah.
3. Yashoda Devi, wife of Binay Kumar Gupta.
All residents of Yashoda Sadan, Rajendra Nagar, P.O. & P.S.
Siwan, Town and District-Siwan.
.... .... Petitioners.
Versus
1. The State of Bihar.
2. Annu Bharti @ Pratima, daughter of Gulab Sah, resident of Naya
Nagar, Banni, Chandi Tola, P.O. Babu Bagicha & P.S. Mahesh
Khunt (Gogri), District-Khagaria.
.... .... Opposite Parties.
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Appearance :
For the Petitioners : Mr. Gautam Kejriwal, Advocate.
For the State : Mr. Dashrath Mehta, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR
MISHRA
CAV ORDER
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11 12-04-2012The petitioners have approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 2.7.2009 passed in Complaint Case No.48(C) of 2006 by the Sub Divisional Judicial Magistrate, Khagaria, whereby the petition dated 20.4.2009 filed on behalf of the petitioners under Section 227 of the Code of Criminal Procedure for discharge has been rejected.
2. The brief facts, leading to this application, is that the opposite party no.2, Annu Bharti @ Pratima, filed the Complaint Case No.48(C) of 2006 against the accused, named in the complaint petition, including the petitioners alleging therein that 2 Patna High Court Cr.Misc. No.33911 of 2009 (11) dt.12-04-2012 2 / 11 her marriage was performed on 2nd of June, 2004 with the accused- petitioner no.1, Binay Biaksh alias Binay Vikas @ Mantu and she went to her Sasural in Bidai. Thereafter, she was being tortured for demand of cash of Rs.1,00,000/-, motorcycle and a colour television. She, anyhow, was leading her life and gave birth to a child, who is aged about 11 months and she once again conceived pregnancy. It is also alleged by the opposite party no.2 that she informed to her father and the witnesses regarding the aforesaid demand, on which her father came and made request saying that he is not in a position to fulfill the demand. On 14th of January, 2006, the accused made planning to commit her murder alongwith her child. On knowing about the aforesaid planning of the accused, she fled away alongwith her child and reached to her Maika and narrated the story to her father and the witnesses. Thereafter, her father and the witnesses went to her sasural and tried to convince the accused but they abused them.
3. It appears that after filing of the Complaint Case No.48(C) of 2006 by the opposite party no.2, the Sub Divisional Judicial Magistrate, Khagaria, on enquiry under Section 202 of the Code of Criminal Procedure, summoned the accused-petitioners, finding prima facie case under Section 498-A of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act vide order 3 Patna High Court Cr.Misc. No.33911 of 2009 (11) dt.12-04-2012 3 / 11 dated 26.5.2006. The aforesaid summoning order, as appears from paragraph-6 to this application, was challenged by the petitioners by filing Criminal Misc. No.15935 of 2007 before this Court, which was dismissed vide order dated 2.5.2007. Thereafter, the accused-petitioners filed the petition under Section 227 of the Code of Criminal Procedure for discharge after recording the evidence before charge on 20.4.2009, which was rejected by the court of Sub Divisional Judicial Magistrate, Khagaria vide order dated 2.7.2009, which is impugned in this application.
4. Learned counsel for the petitioners made submission that it appears from the complaint petition that the entire occurrence, as alleged in the complaint petition, took place in the Sasural of the opposite party no.2 situated in the district of Siwan but the opposite party no.2 has filed the Complaint Case No.48(C) of 2006 in the district of Khagaria, where her Maika is situated. As such, the court of Khagaria had no jurisdiction to try the case and also placed reliance on the case of Y. Abraham Ajith and others Vs. Inspector of Police, Chennai and another {(2004) 8 Supreme Court Cases 100}. Learned counsel for the petitioners further made submission that the petitioner no.1, Binay Bikash alias Binay Vikas alias Mantu, has filed Suit No.42 of 2005 on 29.10.2005 against his wife, the opposite party no.2 in the court of 4 Patna High Court Cr.Misc. No.33911 of 2009 (11) dt.12-04-2012 4 / 11 the Principal Judge, Family Court, Siwan, for dissolution of marriage and, thereafter, the opposite party no.2, with oblique motive and to harass the accused-petitioners has filed the Complaint Case No.48(C) of 2006 in the court of the Chief Judicial Magistrate, Khagaria on 19.1.2006.
5. The main argument as advanced by the learned counsel for the petitioner is the lack of territorial jurisdiction of the court of the Sub Divisional Judicial Magistrate, Khagaria, to try the case. As such, it is desirable to refer to the provision of Section 498-A of the Indian Penal Code relating to cruelty at the hands of the husband or relatives of the husband of a women and also Sections 177-179 of Chapter-XIII of the Code of Criminal Procedure, which deal with the jurisdiction of the criminal courts in inquiries and trials.
Section 498-A of the Indian Penal Code is read as under:
"498-A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.-For the purpose of this section, "cruelty"
means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave 5 Patna High Court Cr.Misc. No.33911 of 2009 (11) dt.12-04-2012 5 / 11 injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
Sections 177-179 of Chapter XIII of the Code of Criminal Procedure are read as under:
"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.
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 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.
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."6 Patna High Court Cr.Misc. No.33911 of 2009 (11) dt.12-04-2012
6 / 11
6. It is clear from the above provisions of Sections 177- 179 of Chapter XIII of the Code of Criminal Procedure that normally the offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. When it is uncertain in which of several local areas an offence was committed or where an offence was committed partly in one local area and partly in another or where an offence is a continuing one, and continues to be committed in more than one local areas or the offence consist of several acts done in different local areas, as per Section 178 the Court having jurisdiction over any of such local areas is competent to inquire into and try the offence. Section 179 makes it clear that if anything happened 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 had ensued.
7. In the present case, the opposite party no.2 has filed the complaint petition in the court of the Chief Judicial Magistrate, Khagaria, narrating that her marriage was performed on 2nd of June, 2004 with the accused-petitioner no.1, Binay Biaksh alias Binay Vikas @ Mantu and she went to her Sasural situated at Siwan in Bidai. Thereafter, she was being tortured for demand of cash of Rs.1,00,000/-, motorcycle and a colour television. She, 7 Patna High Court Cr.Misc. No.33911 of 2009 (11) dt.12-04-2012 7 / 11 anyhow, was leading her life and gave birth to a child, who is aged about 11 months and she once again conceived pregnancy. It is also alleged by the opposite party no.2 that she informed to her father and the witnesses regarding the aforesaid demand, on which her father came and made request saying that he is not in a position to fulfill the demand. On 14th of January, 2006, the accused made planning to commit her murder alongwith her child. On knowing about the aforesaid planning of the accused, she fled away alongwith her child and reached to her Maika and narrated the story to her father and the witnesses. Thereafter, her father and the witnesses went to her sasural and tried to convince the accused but they abused them. Ultimately, the opposite party no.2 started to reside at her Maika situated in the district of Khagaria.
8. On going through the provision of Section 498-A of the Indian Penal Code referred to above, it is clear that harassment and cruelty at the hands of the husband or relatives of the husband of a woman is punishable with imprisonment for a term which may extend to three years and also with fine. In explanation appended to Section 498-A of the Indian Penal Code, not only the physical but the mental cruelty has also been included as an act of the offence.
9. In the case of Y. Abraham Ajith (Supra), on which 8 Patna High Court Cr.Misc. No.33911 of 2009 (11) dt.12-04-2012 8 / 11 the learned counsel for the petitioners has placed reliance, the Hon'ble Apex Court quashed the proceeding holding that the inevitable conclusion is that no part of cause of action arose in Chennai and, therefore, the Magistrate concerned had no jurisdiction to deal with the matter.
10. In the case of Sunita Kumari Kashyap Vs. State of Bihar & Anr. {2011(2) PLJR 191 (SC)} similar issue was considered by the Hon'ble Apex Court. In the said case, Sunita Kumari Kashyap, was the appellant before the Hon'ble Apex Court, who had lodged the F.I.R. bearing No.66 of 2007 at Magadh Medical College Police Station, Gaya, under Sections 498-A and 406/34 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act in which on submission of the chargesheet, the Chief Judicial Magistrate, Gaya, had taken the cognizance of the offence under the aforesaid Sections and had transferred the record to the court of the Sub Divisional Judicial Magistrate,Gaya, where an objection was raised by the husband and in-laws, who were accused in that case, about the territorial jurisdiction of the court at district-Gaya, but the same was rejected. Thereafter, Criminal Misc. Nos.42478 of 2009 and 45153 of 2009 were filed by the in-laws and husband respectively of Sunita Kumari Kashyap before this Court, which were allowed 9 Patna High Court Cr.Misc. No.33911 of 2009 (11) dt.12-04-2012 9 / 11 by different Benches of this Court vide order dated 19.3.2010 and 29.4.2010 respectively, holding the lack of territorial jurisdiction. The aforesaid orders, i.e., the order dated 19.3.2010 passed in Criminal Misc. No.42478 of 2009 and the order dated 29.4.2010 passed in Criminal Misc. No.45153 of 2009, were set aside by the Hon'ble Apex Court. The Hon'ble Apex Court while setting aside the aforesaid orders, in its decision, in the case of Sunita Kumari Kashyap (Supra), held in paragraphs-10 and 11, as under:
"10. Mr. Sanyal also relied on a decision of this Court in Bhura Ram and Others vs. State of Rajasthan and Another, (2008) 11 SCC 103 wherein following the decision in Y. Abraham Ajith and Others (supra), this Court held that "cause of action" having arisen within the jurisdiction of the court where the offence was committed, could not be tried by the court where no part of offence was committed. For the same reasons, as mentioned in the earlier paragraph, while there is no dispute as to the proposition in view of the fact that in the case on hand, the offence was a continuing one and the episode at Gaya was only a consequence at the continuing offence of harassment and ill-
treatment meted out to the complainant, clause (c) of Section 178 is attracted. In view of the above reason, both the decisions are not applicable to the facts of this case and we are unable to accept the stand taken by Mr. Sanyal.
11. We have already adverted to the details made by the appellant in the complaint. In view of the specific assertion by the appellant-wife about the ill-treatment and cruelty at the hands of the husband and his relatives at Ranchi and of the fact that because 10 Patna High Court Cr.Misc. No.33911 of 2009 (11) dt.12-04-2012 10 / 11 of their action, she was taken to her parental home at Gaya by her husband with a threat of dire consequences for not fulfilling their demand of dowry, we hold that in view of Sections 178 and 179 of the Code, the offence in this case was a continuing one having been committed in more local areas and one of the local areas being Gaya, the learned Magistrate at Gaya has jurisdiction to proceed with the criminal case instituted therein. In other words, the offence was a continuing one and the episode at Gaya was only a consequence of continuing offence of harassment of ill treatment meted out to the complainant, clause (c) of Section 178 is attracted. Further, from the allegations in the complaint, it appears to us that it is a continuing offence of ill treatment and humiliation meted out to the appellant in the hands of all the accused persons and in such continuing offence, on some occasion all had taken part and on other occasion one of the accused, namely, husband had taken part, therefore, undoubtedly clause (c) of Section 178 of the Code is clearly attracted."
11. From the aforesaid facts and the circumstances of the case, it is no doubt that the harassment and cruelty as alleged was caused to the opposite party no.2 at the hands of the accused- petitioners at her sasural situated in the district of Siwan and she was compelled to leave her Sasural and, ultimately, she came to her Maika situated in the district of Khagaria. As such, while the cause arose at Siwan, but the effect of the cause was ensued and was continuing in the district of Khagaria, due to the mental 11 Patna High Court Cr.Misc. No.33911 of 2009 (11) dt.12-04-2012 11 / 11 cruelty suffered continuously by the opposite party no.2 in view of the provisions of Sections 178 (c) and 179 of Chapter-XIII of the Code of Criminal Procedure.
12. So far as the submission as advanced by the learned counsel for the petitioners regarding the filing of Complaint Case No.48(C) of 2006 by the opposite party no.2 due to filing of the case of dissolution of marriage by the petitioner no.1, Binay Bikash alias Binay Vikas alias Mantu in the family court, Siwan against his wife, the opposite party no.2 is concerned, both the cases have their separate sphere and this defence cannot be looked into at the time of framing of the charge.
13. Under the aforesaid facts and circumstances, I find no illegality in the impugned order dated 2.7.2009 passed by the Sub Divisional Judicial Magistrate, Khagaria, in Complaint Case No.48(C) of 2006, amounting to abuse of the process of the Court.
14. In the result, this application, being devoid of merit, is dismissed.
(Rajendra Kumar Mishra, J) P.S./-