Patna High Court
Rajendra Rai & Ors vs State Of Bihar on 27 January, 2011
Author: Shailesh Kumar Sinha
Bench: Shailesh Kumar Sinha
CRIMINAL WRIT JURISDICTION CASE No.45 OF 2008
(An application under Article 226
& 227 of the Constitution of
India)
1. RAJENDRA RAI SON OF LATE GULAM RAI
2. DEEPAK KUMAR SON OF RAJENDRA RAI
3. SMT. KUSMA DEVI WIFE OF RAJENDRA RAI
4. DILIP KUMAR RAI SON OF RAJENDRA RAI, ALL SERIAL NO. 1 TO 4
ARE RESIDENT OF MOINUDDINPUR (NORTH) POLICE STATION
BIDDUPUR AND DISTRICT VAISHALI, AT PRESENT RESIDENT OF MES
(AIR FORCE), BIHTA, POLICE STATION BIHTA AND DISTRICT-
PATNA
5. BIJAY RAI @ VIJAY ROY, SON OF SURESH RAI
6. HEMLATA DEVI WIFE OF VIJAY RAI, BOTH SL. NO. 5 & 6 ARE
RESIDENT OF TARACHAK, VILLAGE SHAGUNA MORE, POLICE STATION-
DANAPUR AND DISTRICT- PATNA
.......... PETITIONERS
Versus
1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVT. OF
BIHAR, PATNA
2. THE STATE OF ARUNACHAL PRADESH, THROUGH THE CHIEF
SECRETARY, GOVT. OF ARUNACHAL PRADESH
3. SUPERINTENDENT OF POLICE, DISTRICT- CHANGLANG, ARUNACHAL
PRADESH
4. OFFICER-IN-CHARGE, MIAO POLICE STATION, DISTRICT-
CHANGLANG, ARUNACHAL PRADESH
5. PRAVINA ROY, DAUGHTER OF BRAJ KISHORE ROY, RESIDENT OF
MIAO, POLICE STATION MIAO, DISTRICT- CHANGLANG, ARUNACHAL
PRADESH
........... RESPONDENTS
**********
FOR THE PETITIONERS : MR. SANDEEP KUMAR, ADVOCATE
MR. AJIT KUMAR, ADVOCATE
FOR THE RESPONDENT : MR. B.B. DESAI, ADVOCATE
PRESENT
THE HON'BLE MR. JUSTICE SHAILESH KUMAR SINHA S.K.Sinha,J. The petitioners, through this writ application under Article 226 & 227 of the Constitution of India, have approached this court for quashing the First Information Report, which led to the registering of Miao P.S. Case No. 40 of 2006 in the district of Changlang within the State of Arunachal Pradesh, for the alleged offences under sections 498A, 506/34 of the Indian Penal Code and Sections 3 & 4 2 of the Dowry Prohibition Act. The alternative prayer is for direction to the State of Arunachal Pradesh for transferring the investigation of the above case to the State of Bihar for being investigated by the competent officer of the police station under whose jurisdiction the alleged offences were committed.
2. The case of the petitioners, in short, is that admittedly no cause of action has taken place in the State of Arunachal Pradesh where the aforesaid case has been registered against the petitioners as no allegations have been attributed against the petitioner constituting the aforesaid offences in the said State. As per the allegations made in the complaint of the respondent no.5, basis of the F.I.R., the alleged acts on the part of the petitioners with regard to the demand of dowry, torture and cruelty etc. after the marriage at Rohua P.S. Jandaha District- Vaishali on 22.06.2005 all were made at Bihta under Bihta Police Station in the District of Patna, and as such, in absence of any cause of action with respect to the alleged offence within the police station at Miao, District- Changlang in the State of Arunachal Pradesh, the aforesaid Miao P.S. Case No. 40 of 2006 could not have been registered in the State of Arunachal Pradesh and also the consequential proceedings pursuant to the above first information report within the State of Arunachal Pradesh could not have been 3 proceeded. It is accordingly prayed that the first information report in question deserves to be quashed or in alternative directed to be transferred to the Bihar Police for being investigated by the competent police officer of the concerned police station in the State of Bihar where the alleged offences were committed.
3. A counter affidavit has been filed on behalf of the State of Arunachal Pradesh, Superintendent of Police, District- Changlang and the Officer-in-Charge of Miao Police Station being the respondent nos. 2, 3 & 4 respectively.
4. The respondent no.5, the complainant/ informant of the aforesaid police case did not appear and filed any counter affidavit/show cause despite service of notice effected through respondent no.4.
5. At the hearing of the case the stand of the respondent nos. 2 to 4 is to the effect that since after lodging of the first information report/complaint the accused persons approached the complainant at Miao in Arunachal Pradesh for amicable settlement where the complainant was residing with her parents will also have a cause of action for the alleged offences, and as such, the case can be lodged/filed in the State of Arunachal Pradesh which constituted continuous offence. Besides the above factual stand, it has been stated in the counter affidavit 4 that under the provisions of section 406 of the Code of Criminal Procedure, no High Court can direct the sub- ordinate Court under the jurisdiction of another High Court for transfer of the case since the power vests with the Supreme Court of India only. Therefore, according to the above respondents, on this count as well the writ application must fail.
6. The allegations in the complaint are that the marriage of the petitioner no.1 was solemnized with the respondent no.5 at village Rahua P.S. Jandaha District- Vaishali in the State of Bihar on 22.06.2005. Thereafter she was taken to the parent‟s place of the petitioner at Mohiuddinagar, North Bihar. The complainant after staying there for few days was taken to the place of the father of the petitioner no.1at Bihta Air Force, P.O. & P.S. Bihta, District- Patna, Bihar where the complainant resided with the petitioner no.1 as his wife for about three months, however, just thereafter all the petitioners, who were accused in the aforementioned criminal case, pressed the complainant to bring dowry by way of cash amount of Rs. 60,000/-, Gold ornament, furniture etc. from her parents which however could not be met by the father of the complainant. It has further been alleged that on account of non-fulfillment of the demand, all the accused persons except the accused no.5 of the complaint used to torture 5 the complainant both mentally and physically threatening her to be killed. The torture and cruelty increased day by day to the extent that she was beaten brutally and committed other cruelty/torture, which ultimately compelled the father of the complainant to bring her back on 14th September, 2005 at his residence within Miao Police Station, District- Changlang in the State of Arunachal Pradesh and since then she is residing there with her parents. The efforts to settle the matter resulted in vain. It has further been alleged that as the accused persons were adamant in demanding dowry, the complainant apprehends that in case she goes back to the place of her husband in Bihar she may even be killed. The complainant has explained the delay in filing of the case that since efforts were made after the alleged occurrence to settle the matter the complaint could not be filed within time.
7. Learned counsel appearing for the petitioner contends that from the allegations made in the complaint it would appear that the admitted position is that right from the date of marriage till she left her matrimonial home on 14.09.2005 due to the alleged demand, torture, cruelty etc. which have been allegedly committed at Bihta within Bihta P.S., District- Patna, Bihar and no part of the alleged torture/cruelty/demand admittedly have taken place in the 6 State of Arunachal Pradesh. It is accordingly submitted that the first information report in question with respect to the aforesaid case deserves to be quashed or in the alternative the said case deserves to be transferred to the Bihta Police Station in the State of Bihar for being investigated by the competent police officer of the concerned police station.
8. In support of the above, reliance has been placed on a decision of the Apex Court in the case of Navinchandra N Majithia Vs. State of Maharashtra & Ors., as reported in (2000) 7 SCC, 640 for the proposition that even if the case is registered at a place where no offence has been committed the first information report can be transferred to the police station within whose territorial jurisdiction the alleged offences were committed.
9. Learned counsel for the respondent nos. 2 to 4 on the other hand submits that the alleged offences were continuing offence since after the alleged occurrence there were efforts to settle the matter amicably at Miao, District- Changlang, Arunachal Pradesh so that both may live together peacefully. Learned counsel further submits that the decision of the Apex Court in the case of Navinchandra N Majithia (Supra) deals with the case of commercial nature, and as such, has no application in respect of the offence alleged in the present case.
7
10. Considering the rival submissions of the parties, it is not in dispute that as per complaint the marriage and alleged demand of dowry, torture, cruelty etc. on the part of the petitioner were all committed at Bihta, District- Patna within the State of Bihar. The respondent no.5, the complainant of the case filed the complaint at Miao which on being received by Miao police registered it as Miao P.S. Case No. 40 of 2006 in the District of Changlang, Arunachal Pradesh. It is settled law that a F.I.R. if registered at a place where no offence is committed, since the allegations in the complaint/FIR, after registering the case if the allegations made in the complaint does not discloses any offence committed within the territorial jurisdiction of the said police station, the case can be forwarded to the police station concerned in whose territorial jurisdiction the offence is committed. Reference in this regard may be made to a decision of the Apex Court in the case of Sarvinder Kaur Vs. State ( Govt. of NCT of Delhi), as reported in (1999)8 SCC 728 wherein it has been held vide Paragraph 10 "It is true that territorial jurisdiction also is prescribed under sub-section (1) of section 156 to the extent that the officer can investigate any cognizable case which a court having jurisdiction over the local area within the limits of such police station would have power to 8 enquire into or try under the provisions of Chapter XIII. However, sub-section (2) of section 156 makes the position clear by providing that no proceeding of police officer in any such case shall at any state be called in question on the ground that the case was one which such officer was not empowered to investigate. After investigation is completed, the result of such investigation is required to be submitted as provided under Sections 168, 169 and 170. Section 170 specifically provides that if, upon an investigation, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit for trial. Further, if the investigating officer arrives at the conclusion that the crime was not committed within the territorial jurisdiction of the police station, then FIR can be forwarded to the police station having jurisdiction over the area in which the crime is committed. But this would not mean that in a case which requires investigation, the police officer can refuse to record the FIR and/or investigate it."
11. The contention of the petitioner that since admittedly no offence has been committed at any place beyond the territorial jurisdiction of Bihta police station the 9 aforesaid first information report registered at Miao police station vide Miao P.S. Case No. 40 of 2006 ought to have been forwarded to the Bihta police station since all the alleged occurrences had occurred at Bihta and therefore allegations are required to be investigated at Bihta police station, has substance. The decision of the Apex Court in the case of Navinchandra N Majithia Vs. State of Maharashtra & Ors has categorically held that the High Court under Article 226 (2) of the Constitution of India has jurisdiction to issue direction for transfer of such cases where the cause of action have occurred within its territorial jurisdiction. The provisions of Section 406 of the Code of Criminal Procedure have no application in the facts of the present case. Under the aforesaid provision the Supreme Court can transfer any case from one Court to another in the Country irrespective of the cause of action at any place whereas under Article 226(2) of the Constitution of India the High Court in exercise of its writ jurisdiction can quash/transfer the case from the place where no cause of action accrued to the place where the cause of action arose for initiating the criminal/civil proceedings.
12. In the instant case the offences have allegedly been committed exclusively at Bihta in the District of Patna within the territorial jurisdiction of this Court. The contention of the learned counsel for the respondent nos. 2 10 to 4 that the alleged offence can also be tried at Miao can not be accepted. The Apex Court in the aforesaid decision has categorically held that the place of residence of the complainant at the place of his father at a place where no offence is alleged to have been committed will not give a cause of action for filing the case or lodging the first information report at that place. In this connection reference may also be made to the decision of the Apex Court in the case of Y. Abraham Ajith & Ors. Vs. Inspector General of Police, Chennai & Another, as reported in (2004)8 SCC 100. Paragraphs 18 and 19 whereof are quoted below for ready reference :
Paragraph-18 "In Halsbury‟s Laws of England (4th Edn.) it has been stated as follows : " „Case of action‟ has been defined as meaning simply a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. „Cause of action‟ has also been taken to mean that a particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, nor merely the technical cause of action."11
Paragraph-19 "When the aforesaid legal principles are applied, to the factual scenario disclosed by the complainant in the complaint petition, 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. The proceedings are quashed. The complaint be returned to Respondent no.2 who, if she so chooses, may file the same in the appropriate court to be dealt with in accordance with law. The appeal is accordingly allowed."
13. In the result the respondent no.s 2, 3 & 4 are, hereby, directed to transfer the complaint/first information report vide Miao P.S. Case No. 40 of 2006 with all its subsequent proceedings to the Officer-in-Charge, Bihta Police Station, District-Patna in the State of Bihar to proceed with the investigation of the case in accordance with law.
14. It is further directed that till submission of the report after investigation to the competent Court of Magistrate having jurisdiction on local area under Bihta police station, no coercive step be taken against the petitioners in connection with the aforesaid criminal case i.e. Miao P.S. Case No. 40 of 2006 registered by Miao Police Station, District Changlang in the State of Arunachal 12 Pradesh.
15. The writ application is partly allowed with the above observations/directions.
16. Let copy of this order be communicated to the respondent nos. 2, 3 & 4 separately as also to the Court of Judicial Magistrate, Ist Class, Miao Sub Division, Changlang (Arunachal Pradesh) through FAX on the cost being deposited by the petitioners. A copy of the order may also be handed over to the learned counsel for the respondent nos. 2 to 4 for its communication and needful to the concerned parties.
( Shailesh Kumar Sinha,J.) Patna High Court th The 27 January,2011 Manish/A.F.R.