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Madhya Pradesh High Court

Dushyant Singh Gaharwar vs The State Of Madhya Pradesh on 31 August, 2017

HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
             Cri.Revn. No.1411/2006
         Dushyant Singh Gaharwar and others
                            Vs.

                State of M.P. and another
Counsel for the Petitioner : Mr. Siddharth Datt, Advocate
Counsel for Respondent No.1 : Mr. Y.D. Gupta,
Govt. Advocate
Counsel for Respondent No.2 : None present
Present : Hon’ble Mr. Justice Atul Sreedharan
                      JUDGMENT

(31/08/2017) The present revision raises a question of law on continuing offence and its relation to the territorial jurisdiction of criminal courts. It has been answered in paragraphs 9 and 11 of the judgement.

The revision has been preferred by the petitioners herein being aggrieved by the order dated 7.8.2006 passed by the Court of the learned Sessions Judge, Satna in Criminal Revision No.34/2006 (State of M.P. Vs. Dushyant Singh Gaharwar and others) whereby the revision preferred by the respondent No.1/State challenging the order dated 10.2.2006 passed by the learned Judicial Magistrate First Class, Nagod, District Satna, in Criminal Case No.448/2004 (State of M.P. Vs. Dushyant Singh Gaharwar & others), was allowed and the order passed by the learned Judicial Magistrate First Class, Nagod, was set aside with the direction that the learned trial Magistrate shall adjudicate the matter in accordance with law. As regards the order that was impugned by the State in the Criminal Revision before the learned Sessions Judge, the same arose from an application moved by the petitioners herein before the Court of the Judicial Magistrate First Class at Nagod, Distt. Satna, that the said court was bereft of jurisdiction to try the case in view of Section 177 Cr.P.C., as the undisputed facts of the prosecution itself revealed that all acts pertaining to the offence had taken place at the matrimonial home of the complainant at District Shahdol. Before the Court of the Judicial Magistrate First Class, Nagod, which comes under District Satna, it was argued on behalf of the Petitioners herein that it has no competence to try the case as there is not a single averment made by either the complainant or any of the witnesses, either in the FIR or their statements u/s. 161 Cr.P.C that any transaction relating to the offence had taken place within the jurisdiction of the learned JMFC Court at Nagod. The Ld. JMFC allowed the said application vide order dated 10.2.2006 and returned the charge sheet to the Police and consequentially discharged the petitioners herein. By the order impugned in this revision, the case being Criminal Case No.448/2004 was revived before the Court of the learned JMFC, Nagod.

2. After the filing of the criminal revision, this Court vide order dated 25.8.2006 had stayed the operation of the impugned order passed by the Sessions Court, Satna. Under the circumstances, the proceedings before the learned JMFC, Nagod were stayed. As this is not a quash petition and the only question that arises for consideration in this case is with regard to the question whether the Court of the learned JMFC, at Nagod is vested with jurisdiction to try the case against the petitioners in the backdrop of the allegations in the FIR and the statement of witnesses u/s. 161 Cr.P.C or whether the provisions of Section 177 of Cr.P.C. would divest the Court at Nagod from trying the case before it.

3. Heard the learned counsel for the petitioners and the State. The brief facts in this case are that the complainant Mrs. Vibha Singh got married to the petitioner No.1 on 12.12.2002. The matrimonial home was at Shahdol. For about 10 days everything went on well between the husband and wife and after 10 days when she was going back to her parental home at village Koni in Distt. Satna, a demand was allegedly made by the petitioner No.1 that as the respondent No.2's father was a policeman, she should get a four-wheeler vehicle for them as dowry. The respondent No.2 further states in her FIR dated 15.2.2004 registered at Police Station Jasso, Distt. Satna, that on account of her inability to compel her parents to fulfill the above said demand of the petitioners, she was subjected to mental and physical cruelty in the form of beatings, denial of food and denial of clothes to wear by the petitioners herein.

4. It is undisputed that the FIR discloses these incidents to have taken place at the matrimonial home at Shahdol. This Court has gone through the 161 statements of all the witnesses which include the parents of the complainant, the relations of the complainant, the neighbours of the petitioners and all of them have stated – (a) that there was a demand for dowry on the complainant and her parents for a four wheeler by the Petitioners herein, (b) that on account of non-fulfilment of the alleged demand, the respondent No.2 was subjected to mental and physical cruelty in the form of beatings, deprivation of food and denial of clothes to wear and; (c) that she was finally turned out of her matrimonial home at Shahdol by the petitioners on account of her inability to fulfill the dowry demand.

5. None of the witnesses have alleged that the petitioners have ever made a demand for dowry or assaulted/beaten or treated the respondent No.2 with cruelty at her parental home at Koni in Distt. Satna. In the backdrop of the evidence collected by the Police, the learned JMFC, Nagod returned the charge- sheet back to the Police after appreciating the application moved by the petitioners herein to the effect that the said Court did not have the territorial jurisdiction to try the case as there was no allegation of the offence being committed within the territorial jurisdiction of that Court or that a part of the offence was ever committed within the territorial jurisdiction of the Court at Nagod.

6. The learned Court of Sessions while setting aside the order passed by the learned Magistrate was impressed by the arguments of the State that as the parental home of the complainant was within District Satna and that the information relating to the demand of dowry was transmitted to the parental home at Satna, therefore, the jurisdiction of the learned JMFC at Nagod was carved out. Besides this, the learned revisional Court has also observed that – ßvkjksih nq";ar flag us Hkh xzke dksuh ftyk lruk esa vkdj ngst dh ekax dh Fkh rFkk xzke dksuh esa gh Qfj;kfn;k dks izrkfM+r fd;k FkkAÞ In other words, the learned revisional Court held on a question of fact that the petitioner No.1 had come to village Koni within District Satna and had demanded dowry and had also tortured the complainant. This Court having gone through the FIR and 161 statement of the witnesses does not find any reference by any witness to this fact that the petitioner No.1 had come to village Koni and made a demand for dowry and had physically/mentally tortured the complainant at Koni. The learned revisional Court also does not state as to from where this fact was brought to the notice of that Court. However, learned counsel for the petitioner has drawn the attention of this Court to the FIR registered by the complainant wherein, the complainant has written -

Þ eq>s nq";ar flag ekg vizSy lu 2003 dks ek;ds dksuh ls llqjky 'kgMksy ys x;s rks iwNk fd rqels pkj ifg;s dh xk+M+h ds fy;s dgk Fkk D;k gqvk esjs ;g dgus ij fd eS ekrk firk ls dgus fgEer ugha tqVk ikbZ rHkh esjs ifr nq";ar flag] lkl lhrk flag] cfgu e/kq] nsoj gseUr }kjk izrkfM+r fd;k tkus yxk esjs lkFk jkstkuk ekjihV djus yxs] eq>s Hkw[kk j[kk tkrk Fkk] diM+k iguus dks ugha fn;k tkrk FkkAÞ These lines apparently seem have been misread by the learned Sessions Court to the effect that the petitioner No.1 had made the demand at the parental home of the complainant at Shahdol

2. Section 177 Cr.P.C mandates that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. The exceptions to this general rule are given in subsequent sections. Though, it is not mandatory from the generalised words of Section 177 Cr.P.C., the rationale behind the legislative intent for an offence to be enquired into and tried by the Courts within whose local jurisdiction the offence was committed is that witnesses to the offence, the material objects if any and other evidence(s) are localised and so, it would be a matter of prudence that the Court which is closest territorially to the place where the offence has been committed, be vested with the authority to try them.

3. The learned Court of Sessions has held that in the facts of the case, it would be Section 178 and not Section 177 which would govern the trial which provides for the Courts at multiple jurisdiction with the authority to try them when (a) there exists an uncertainty regarding the local areas where the offence may have been committed; (b) where the offence was partly committed in one local area and partly in another; (c) where the offence is could be tried by a court where the offence was committed or by the Court where the consequence of such an offence arose, and (d) where the offence consists of several acts done in different areas which may be inquired into or tried by a Court having jurisdiction over any of such local areas.

4. The inclination of the Court of Sessions to look at the circumstances in this case as one which could be described as a continuing offence is misplaced. Every offence commences, continues and terminates. Continuing offences are those which are spread over a period of time and committed by a fresh instance of actus reus each time, constituting the offence. The concept of a continuing offence assumes great significance in cases relating to the territorial jurisdiction of trial courts as also in cases where the Trial Court has to delve into the issue of limitation u/s. 468 Cr.P.C.

Continuing offence in relation to territorial jurisdiction:-

2. By illustration it can be said that if a husband treats his wife cruelly between January 2000 to February 2000 at Place ‘A’, it does not entitle the wife to register the FIR u/s. 498-A at Place ‘B’ in the year March 2004 on the ground that she continued to be in pain, mental agony and despondency at Place ‘B’ even though no act of cruelty took place at Place ‘B’. If however, the husband, in March 2002 goes to Place ‘B’ and commits cruelty on the wife yet again, then the actus reus pertaining to the offence u/s. 498-A has continued into March 2002 at Place ‘B’ vesting both, Place ‘A’ and Place ‘B’ with the jurisdiction to try the offence u/s. 498-A IPC.

Continuing offence in relation to limitation to taking cognizance:-

2. Likewise, in the identical fact case scenario mentioned hereinabove, while deciding the issue of the bar on taking cognizance of an offence, on account of the same being hit by limitation u/s. 468 Cr.P.C, the wife cannot sustain a case u/s. 498-A against the husband in March 2004 for acts of cruelty committed by the husband between January 2000 to February 2000 on the ground that she continued to be in pain, mental agony and despondency well into March 2004. The Trial Court would be barred from taking cognizance of the offence u/s. 498-A IPC in view of the provisions of section 468 (1) Cr.P.C on account of which, cognizance of an offence u/s. 498-A IPC would be barred in March 2004 on account of the chargesheet or the complaint case not being filed in Court before the end of the three-year period set under section 468(2)(c) Cr.P.C, as the maximum sentence for an offence under section 498-A IPC is only three years. However, if the husband commits an act of cruelty on the wife in March 2002, then the offence having continued into March 2002, enables the Trial Court to take cognizance till March 2005 even of the acts amounting to cruelty committed between January to February 2000. Thus, in continuing offences, there must be a fresh actus reus constituting a particular offence each time, that would extend the period of limitation every time the actus reus constituting that offence is committed and section 472 Cr.P.C provides for the extension of the period of limitation for continuing offences. However, the Criminal Procedure Code does not define a continuing offence. With regard to the law of limitation, the Black’s Law Dictionary, Tenth Edition has defined a “Continuing Offense” as “A crime (such as conspiracy) that is committed over a period of time, so that the last act of the crime controls when the statute of limitations begins to run”.

3. In the case at hand this court is only concerned with continuing offence in relation to territorial jurisdiction. Even if one goes by the allegations in the charge sheet, the demand for dowry and the acts of cruelty may have taken place on one or more occasions, but each of those acts of alleged cruelty happened at Shahdol and the evidence on record does not disclose a single instance of dowry demand or any act of cruelty on the complainant which was ever committed at her parental home at Koni, Distt.

Satna. Therefore, there being no act by any of the petitioners constituting an offence either U/s.3 or Section 4 of the Dowry Prohibition Act or Section 498- A of the I.P.C. at Koni, the said offence cannot be treated as a continuing offence.

4. In order to buttress his submissions, learned counsel for the petitioners has placed before this Court the judgment of the Supreme Court in the case of Y.Abrahim Ajith and others Vs. Inspector of Police, (2004) 8 SCC 100. In this case, the legality of the judgment passed by Madras High Court in a quash petition praying for the quash of the proceedings in CC No.3532/2001 pending in the Court of XVIIIth Metropolitan Magistrate, Saidapet, Chennai, was questioned. The respondent No.2 before the Supreme Court in that case had filed the complaint in the Court of Metropolitan Magistrate alleging commission of offences U/s.498-A and 406 of I.P.C. The quash petition U/s.482 Cr.P.C. was filed alleging that the Magistrate has no jurisdiction to entertain the complaint as no part of the cause of action arose within the jurisdiction of the Court concerned. The plea that was taken in that case was that the complainant had disclosed that after 15.4.1997 she had left the matrimonial home i.e. Nagercoil and came to Chennai and that all the allegations in the complaint took place according to the complainant herself, at Nagercoil and the Courts at Chennai did not have the jurisdiction to try the case. The Supreme Court after examining the provisions of Section 177 and 178 Cr.P.C., quashed the case filed by the wife on the ground that no part of the cause of action arose in Chennai, as it was the undisputed case of the complainant herself that the acts relating to cruelty were all committed within the territorial jurisdiction of the Court at Nagercoil.

5. More recently, the Supreme Court in the case of Manoj Kumar Sharma and others Vs. State of Chhattisgarh and another, AIR 2016 SC 3930, had allowed the petition filed by the appellant Manoj Kumar Sharma and quashed the criminal case pending against him and other co-accused persons before the Court of the Magistrate at Bhilai in Durg District (Chhattisgarh). The facts relating to the said case was that the deceased Nandini had got married on 27.4.1999 to the appellant Manoj Kumar Sharma who was serving in the Indian Airforce. On 20.9.1999, Nandini Sharma committed suicide at her matrimonial home at Ambala in the State of Punjab. The Police conducted an inquest under Section 174 and on account of there being no suspicion relating to the death of the deceased and also on account of no allegations having been levelled against the appellant by the family members of the deceased, the case was given a quietus by the Police. Five years thereafter, on 29.5.2005 the respondent No.2 who is brother of the deceased, registered an FIR against the appellant and the co-accused persons in District Durg in the State of Chhattisgarh U/s.304-B and 498- A/34 of I.P.C. In the FIR, it was alleged that five years after the death of his sister, he received anonymous information by post to the effect that his sister has been done away in a surreptitious manner at the matrimonial home for not meeting the demand for dowry. The 482 petition filed by the appellant before the High Court was dismissed and on appeal to the Supreme Court, the Supreme Court held in para 15 that the territorial jurisdiction of the Court with regard to criminal offence would be decided on the basis of place of occurrence of the incident and held “In the instant case, the suicide was committed at Ambala. The Ambala police closed the case after fulfilling the requirements of Section 174 of the Code holding that there was no foul play in the incident and also there was no requirement of lodging FIR under Section 154 as none of the family members of the deceased raised any suspicion over the death even though the death was committed within seven years of marriage. Also, there is no evidence of it being a continuing offence. Hence, the offence alleged cannot be said to have been committed wholly or partly within the local jurisdiction.”

6. Under the circumstances, the undisputed facts in the present case are that all the instances of cruelty were committed in District Shahdol in the matrimonial home and none of the witnesses have indicated the commission of the said offence by the petitioners at the parental home of the complainant in village Koni within Satna District. Thus, the order passed by the Court of learned JMFC dated 10.2.2006 cannot be faulted for and, therefore, the impugned order dated 7.8.2006 passed by the learned Sessions Judge, Satna in Criminal Revision No.34/2006 is set aside and consequently, the order of the learned JMFC, Nagod, Distt. Satna dated 10.2.2006 is restored. As the investigation was completed and no challenge was ever offered to the investigation or the evidence collected during the course of trial, the respondent/State shall be at liberty to present the charge-sheet in this case before the appropriate Court in Shahdol District.

With the aforesaid, the petition is disposed of. (Atul Sreedharan) Judge a (ATUL SREEDHARAN) JUDGE a