Orissa High Court
Brij Kishore Singh And Ors. vs Smt. Nutan Singh And Anr. on 21 November, 1994
Equivalent citations: 1995CRILJ1486
Author: A. Pasayat
Bench: A. Pasayat
ORDER A. Pasayat, J.
1. This is an application questioning correctness of order dated 18-12-1993 passed by learned Sub-divisional Judicial Magistrate, Berhampur(in short, the 'SDJM') invoking power under Section 156(3) of the Code of Criminal Procedure, 1973 (in short, the'Code'), and directing investigation.
2. Background facts are as follows :
A complaint was filed by opposite party No. 1 before the learned SDJM alleging various acts, which according to the complainant constituted offences punishable under Sections 302, 341, 406, 506, 498A read with section 34 of the Indian Penal Code, 1860 (in short, 'IPC'), and Section 4 of the Dowry Prohibition Act, 1961 (in short, the 'Dowry Act'). On receipt of complaint, the learned Magistrate felt that before proceeding under Section 200 of the Code, it was necessary to send the complaint petition to the Police for investigation under Section 156(3) of the Code: The original complaint was sent to the Inspector-in-charge of B. N. Pur Police Station as according to him the alleged occurrence took place within the jurisdiction of said Police Station. The Inspector-in-charge of the Police Station was directed to register a case and investigate into the matter under Section 156(3) of the Code. Accordingly, U.D. Case No. 5 of 1993 has been registered.
3. According to Mr. D.P. Das, learned counsel for petitioners no part of the alleged occurrence look place either within the limits of B.N. Pur Police Station, or within the jurisdiction of learned SDJM, Berhampur, and, therefore, the direction as given is not in accordance with law.
The learned counsel for opposite parties on the other hand submitted that there is sufficient material to show that at least a part of the cause of action arose within the jurisdiction of B.N. Pur Police Station, and also within the jurisdiction of learned SDJM, Berhampur, and therefore, the direction as given is proper.
4. "Jurisdiction is a DIGNITY which a man hath by a power to do justice in causes of complaint made before him". (Termes de la ley). "Jurisdiction" of a validly constituted Court in its narrow and strict sense, connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process by reference (1) to the subject-matter of the issue, or (2) to the persons between whom the issue is joined, or (3) to the kind of relief sought, or to any combination of those factors. In its wider sense it embraces also the settled practice of the Court as to the way in which it will exercise its powers to hear and determine issues which fall within its "jurisdiction" (in the strict sense) or as to circumstances in which it will grant a particular kind of relief which it has "jurisdiction" (in the strict sense) to grant, including its settled practice to refuse to exercise such powers, or to grant such relief in particular circumstances.
5. Chapter XIII of the Code deals with jurisdiction of the criminal Courts in inquiries and trials. The Chapter deals with the place of inquiry and trial in respect of offences only. Section 177 provides that "ordinarily" every offence would be tried by a Court within the local limits of whose jurisdiction it was committed. Section 178 deals with the place of inquiry or trial. It is a special provision and not a general principle of law and in fact is supplemental to the 3rd clause of Section 181(4). Section 179 applies when the act or omission is an offence by reason of anything which has been done and of any consequence which has ensued. But where the act or omission is a complete offence irrespective of any consequence which has ensued, the provision has no application and the offence is to be inquired into and tried only by the Court within whose jurisdiction the act was committed as provided in Section 177 of the Code. Section 179 contemplates two aspects, namely, (i) that the offender has done an act; and (ii) that a consequence has followed from such act and the offender is being tried for the offence as a result of both the act and the consequence. In other words, the act by him does not by itself render him liable for the offence and that it is the act coupled with the consequence which constitutes the offence and makes him liable for it. Section 180 is an enabling provision and it is not curtailed by the directions contained in Section 177 of the Code. It applies not only to cases where both the acts in question are offences, but also to cases where an act is an offence by reason to its relation of another which is not an offence, but which would be an offence only when the doer was capable of committing an offence. Section 181 is in the nature of an exception and fixes the places of trial in case of certain offences. The place of trial is left open. It is significant to note that the word "ordinarily" appears in Section 177 of the Code. The word "ordinarily" means except in cases provided in several provisions. At this juncture it is relevant to note the provisions of Section 462 of the Code. It provides that no finding, sentence or order of any criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions, division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice. Section 462 cures any defect due to want of legal jurisdiction unless there has been a failure of justice by the exercise of such irregular jurisdiction.
5A. A complaint should ordinarily indicate that the offence complained of was committed within territorial jurisdiction of the Court in which the complaint is filed. It is on the terms of the complaint that the Magistrate has first to inform himself as to the nature of the case, and to see whether he has jurisdiction to entertain it. If the question of territorial jurisdiction is raised, trial can be commenced only after deciding that question. Provisions of Section 462 of the Code are , curative in nature. But the fact that the curative provisions may be available should be not an excuse to overlook a material irregularity pertaining to jurisdiction, when it is brought to the notice of the Court before commencement of trial.
6. It is the case of petitioners that in respect of self-same accusations investigation is in progress, which would really prejudice the petitioners. The relevant aspects do not appear to have been considered by the learned Magistrate. Let him consider the matter afresh, as to whether he has jurisdiction, if any investigation is pending in respect of similar accusations in some other police station, or in respect of inquiry before any other Court.
The application is accordingly disposed of.