Jharkhand High Court
Debabrata Saha, Bankim Chandra Saha And ... vs State Of Jharkhand And Sonali Saha @ ... on 30 March, 2007
Equivalent citations: 2007(2)BLJR1324, 2007CRILJ3560, [2007(2)JCR298(JHR)], 2007 CRI. L. J. 3560, 2007 (2) AIR JHAR R 978, (2007) 55 ALLINDCAS 847 (JHA), (2007) 2 JCR 298 (JHA), (2007) 2 JLJR 404
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
JUDGMENT D.G.R. Patnaik, J.
Page 1324
1. The petitioners have invoked the inherent jurisdiction of this Court under Section 482 of he Code of Criminal Procedure, praying for quashing the entire criminal proceeding initialed against them vide C.P. Case No. 445 of 2005 and the order dated 06.07.2005b whereby learned Sub Divisional Judicial Magistrate, Dhanbad has taken cognizance for the offences under Section 498 IPC and Section 3/4 of the Dowry Prohibition Act against the petitioners and summons were issued directing their appearance for facing trial.
2. The main ground advanced by the petitioners is the ground relating to jurisdiction, claiming that the learned court below did not have jurisdiction to entertain the Page 1325 complaint of the opposite party No. 2 for initiating proceedings against the petitioners on account of the fact that no cause of action arose or accrued to the complainant within the territorial jurisdiction of the learned court below.
3. Facts of the case briefly stated is that the complainant/opposite party No. 2 filed a complaint petition in the court of Chief Judicial Magistrate, Dhanbad naming the present petitioners as accused alleging inter-alia that her marriage with the petitioner No. 1 was solemnized on 19th November 2003 in the house of the complainant's father at Dhanbad pursuant to negotiation between their respective elders. After her marriage, she went to live at her matrimonial house in the company of her husband and in-laws at Calcutta, West Bengal. On account of the alleged non-fulfillment of demand of down, her husband and in-laws began subjecting her to ill treatment and cruelty at her matrimonial house with further threats of divorce, if their demands were not fulfilled. Four months after the marriage, she came to her paternal house at Dhanbad for completing her academic courses. After about seven months she went back to her matrimonial house and during her sojourn at her matrimonial house, she again faced ill treatment, neglect and cruelty at the hands of her husband and in-laws. She was thus compelled to leave her matrimonial house and return to the house of her parents. During the period of her stay at her parent's house, her husband used to make frequent telephonic calls giving out abuses to her and threatening that he would enforce divorce and go for second marriage if the demanded amount of dowry is not given. Instilled with fear on account of the threats issued to her, the complainant did not go back to her matrimonial house ever since after she had returned to the house of her parents.
4. Mr. Rajan Raj, learned Counsel appearing for the petitioners, submits that the complaint as filed by the opposite party No. 2, is entirely with malafide intentions only to harass the petitioners and by suppressing the material facts that the petitioner No. 1/ husband had filed a matrimonial suit for divorce under Section 13 of the Hindu Marriage Act against the complainant / opposite party No. 2 which was registered as Matrimonial Suit No. 85 of 2005 in the court of District Judge, Hooghly, Chinsura, West Bengal on the ground of cruelty and desertion. Learned Counsel explains that the opposite party No. 2 had voluntarily withdrawn herself from the company of her husband and had left her matrimonial house on 8.2.2004 and since then, she had never returned to her matrimonial house. Referring to the allegations in the complaint petition, learned Counsel explains that the allegation of misbehaviour, neglect and cruelty, as levelled by the opposite party No. 2 against the petitioners, relates to the period when the complainant was admittedly living at her matrimonial house at Calcutta and in absence of any allegation of such misconduct occurring at Dhanbad, the learned court below at Dhanbad had no jurisdiction at all to proceed with the trial against the petitioners on the basis of such complaint. Referring in this context to the judgment of the Supreme Court in the case of Abraham Ajith and Ors. v. Inspector of Police, Chennai reported in 2005(1) J C R 15 (SC), learned Counsel explains that as envisaged under Section 177 Cr. PC, the proper and ordinary venue for the trial of a crime is the area of jurisdiction in which, on the evidence, the facts occur and which are alleged to constitute the crime. Learned Counsel explains that since it is the definite case of the complainant that the alleged ads and deeds constituting offences had occurred exclusively at Calcutta, where cause of action allegedly arose and therefore, it is the court at Calcutta which alone had jurisdiction Page 1326 to entertain the complaint and not the court at Dhanbad. Learned Counsel explains further that the provision of Section 178 Cr. PC also cannot be applied in the facts and circumstances of the present case. Referring to another judgment of the Supreme Court in the case of State of Bihar v. Deokaran Nenshi and Anr. , learned Counsel submits that none of the offences for which cognizance was taken in the instant case, can be deemed to be a continuing offence, since the definition or explanation of the term "continuing offence" as given in Section 178(c) of the Code of Criminal Procedure, does not apply to the facts and circumstances of the present case. Learned Counsel sums up asserting that since no part of the cause of action had accrued to the complainant at Dhanbad, the proceeding initiated by her in the court below at Dhanbad, is entirely an abuse of the process of law.
5. Opposite party No. 2 has appeared though her lawyer and has filed her counter-affidavit. Mr. Deepak Kumar, learned Counsel for the opposite party No. 2, while controverting the grounds advanced by the petitioners and refuting their allegations, submits that the petitioners have tried to misinterpret the fact of the case ignoring certain part of the allegations appearing in the complaint petition. Learned Counsel explains that though complainant had suffered major portion of ill-treatment and cruelty at the hands of the petitioners at her matrimonial house at Calcutta, but her suffering of cruelty had continued even while she was living at the house of her parents at Dhanbad on account of the fact that the husband/petitioner No. 1 used to make frequent telephonic calls giving out abuses and threatening her with the consequence of divorce. Furthermore, it was in response to the persistent demands of money, as made by the petitioners, the complainant's lather had paid a sum of Rs. 2.00 lakh by two separate demand drafts of Rs. 1.00 lakh each drawn at Dhanbad Central Cooperative Bank Limited, Hirapur, Dhanbad and UCO Bank, Hirapur, Dhanbad in favour of the petitioner No. 1, who on receipt of the same, had encashed the amounts thereof. Learned Counsel insists that in view of the above facts, part of the cause of action arose at Dhanbad also and applying the principles of Sections 178 and 179 of the Code of Criminal Procedure, the court at Dhanbad did definitely have jurisdiction not only to entertain the complaint, but also to proceed against the petitioners since cognizance of the offences was taken against them after finding a prima facie case.
6. The question which calls for determination is, whether on the facts and circumstances of the case, the court below at Dhanbad has jurisdiction to entertain the complaint of the opposite party No. 2 and to proceed with the trial against the petitioners on such complaint. Related issue is, whether any part of the cause of action arose within the jurisdiction of the learned court below. This issue invites necessarily reference to Sections 177, 178 and 179 Cr. PC. Section 177 Cr. PC deals with the ordinary place of inquiry and trial and reads as under:
177. Ordinary place of inquiry and trial.- (a) Every offence shall ordinarily be inquired into and tried by a Court within whose jurisdiction it was committed.
Section 178 Cr. PC deals with the place of inquiry or trial and reads as under:
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 Page 1327
(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 Cr. PC reads as follows:
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.
7. It is apparent from the above sections of procedural law that the place of inquiry or trial depends upon the place or places where offence was committed or where offence is a continuing one giving cause of action to the aggrieved party to invoke the jurisdiction of the court for his or her redressal.
In the case of Y. Abraham Ajith and Ors. (Supra), the Apex Court while elaborating that the term "Cause of Action" has explained that the term consists of bundle of facts, which give cause to enforce the legal inquiry for redressal in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise.
Black's Law Dictionary defines the term "cause of action" to be the entire set of facts that gives rise to an enforceable claim. In common legal parlance it is existence of those facts, which give a party a right to judicial interference on his behalf.
8. Referring to the averments contained in the complaint petition read together with the statement of the complainant recorded on solemn affirmation in course of inquiry conducted by the learned court below under Section 202 Cr. PC, it appears that the allegations of demand for dowry and of subjecting her to ill-treatment for nonfulfillment of demand, is confined entirely to the period during which the complainant/opposite party No. 2 lived at her matrimonial house at Calcutta. Admittedly, she had left her matrimonial house and returned to the house of her parents at Dhanbad on 20.3.2004, where after, she never returned to her matrimonial house, nor does she claim to have any occasion thereafter to come in contact with her husband or with any member of his family. Though, in para-2 of the complaint petition, it has been claimed that two demand drafts of Rupees one lakh each vide dated 26.11.2003 and 01.12.2003 respectively, along with gold ornaments, furniture, utensils and clothing apparel were given by the complainant's father at the time of marriage besides a sum of Rs. 20,000/- to the marriage broker towards their services for negotiating the marriage, but no such statement appears in the statement of the complainant recorded on solemn affirmation. Even otherwise, it is not the case of the complainant that any ill treatment or cruelty or any act constituting the offence under Section 498A IPC had occurred at the time when the marriage was solemnized. Rather, it was admittedly a negotiated marriage agreed upon after both the parties had discussed all related matters in advance. Learned Counsel for the petitioners informs that as per bank's statement, the demand drafts referred to in the complaint petition, are of 12.8.2003 and 13.08.2003, which relate to the period prior to the date of solemnization of marriage. In this background, the contention of the learned Counsel for the opposite party No. 2 that since the demand drafts were drawn in favour of the petitioner No. 1 at Page 1328 the banks at Dhanbad, the same constitute part of cause of action at Dhanbad, also appears to be misconceived and not applicable. Likewise, the contention of the learned Counsel for the opposite party No. 2 that the petitioners used to give out abuses by making telephonic calls to the complainant at Dhanbad, is also not supported by the facts admitted and stated by the complainant in her complaint petition. The Statements contained in Para-11 of the complaint petition which refers to the purported telephonic calls, suggests that it was the complainant and her witnesses who used to make the telephonic calls to the petitioners at their house at Calcutta, requesting them to take back the complainant to her matrimonial house and the petitioners used to respond by referring the request and way of giving out abuses. The above averment do not suggest anywhere that the petitioners had ever initiated any telephonic calls to the complainant or had threatened her and her parents with any specific demand. Refusal of the petitioners to accede to the requests in itself cannot be construed as a continuing offence or a conduct consequence of which was suffered by the complainant at the house of her parents at Dhanbad. It cannot, therefore, be said that the circumstances as envisaged under Section 178 or 179 Cr. PC can be attracted to the facts and circumstances of the present case. The facts of the case of K.C. Mathew and Anr. v. Reena Paul reported in 1998 Cr. L.J. 2300 (Kerala) can be distinguishable from the facts of the present case. For the same reason, the benefit of Section 182 Cr. PC, which deals with the place of inquiry or trial in respect of offence committed by telecommunication message, also does not apply in the present case.
10. From the facts and circumstances of the present case and regard being had to the factual matrix, as stated by the complainant/opposite party No. 2 in her complaint petition, it is apparent that no part of cause of action arose at Dhanbad and, therefore, concerned Magistrate before whom the criminal proceeding was initiated by the opposite party No. 2 and before whom same is pending, had no jurisdiction to deal with the matter.
11. Under the circumstances, the entire criminal proceedings against the petitioners vide C.P. Case No. 445 of 2005 and order dated 06.07.2005 passed therein by the Sub Divisional Judicial Magistrate, Dhanbad, is hereby quashed.