Patna High Court
Shyam Sunder Ram @ Shyam Sunder Kandhway ... vs State Of Bihar on 1 September, 2010
Author: Akhilesh Chandra
Bench: Akhilesh Chandra
CRIMINAL MISCELLANIOUS No.47728 OF 2005
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In the matter of application under Section 482 0f the Code of
Criminal Procedure.
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1. SHYAM SUNDER RAM @ SHYAM SUNDER KANDHWAY
2. SUMITRA DEVI,
3. VINAY KUMAR,
4. OM PRAKASH,
5. SANGEETA GUPTA @ SANGEETA DEVI.
--PETITIONERS
Versus
1. THE STATE OF BIHAR
2. RUBEY DEVI.
---------------------OPP.PARTY
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FOR THE PETITIONERS : M/s Ashwani kr. Singh,
Rakesh Kr. Sinha No.1,
Pankaj Kr. Singh
FOR THE STATE : Mr. Amarendra Prasad,
APP.
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PRESENT
THE HON'BLE MR. JUSTICE AKHILESH CHANDRA Akhilesh Chandra, J. Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the State. None appeared on behalf of opposite party no.2.
2. This is an application for quashing of the order dated 13th April, 2005 passed by Sri Sanjay Kumar Singh, Judicial Magistrate, first Class, Nawadah in 2 Complaint Case no. 95 of 2005 taking cognizance for the offence under Section 498A and 323 of the Indian Penal Code.
3. Relevant fact of this case is that opposite party no.2 was married with son of petitioners no.1 and 2 on 27th June, 2004 and the couple started leading their marital life at the place of petitioners, i.e., at Giridih where she was, as alleged in the complaint petition, tortured on account of various demand of dowry etc. Ultimately, on information received, her father arrived and brought her back to his place at Nawadah where she was treated and, ultimately, case was filed before Chief Judicial Magistrate. Nawadah for the offences under Sections 498A, 380, and 307 of the Indian Penal Code and 3/4 of the Dowry Prohibition Act. On enquiry, the court below took cognizance for the offences under Section 498A and 323 of the Indian Penal Code giving rise to instant case.
4. The only ground taken by learned counsel for the petitioner is that the Court at Nawadah has no jurisdiction to entertain the complaint wherein not even a 3 single occurrence has been whispered to be taken place rather the complaint case whatever occurrences allegedly took place were at Giridih. Thus, the Court at Giridih alone is entitled to entertain such complaints, if filed by the complainant-opposite party there. In support of the contention learned counsel for the petitioner has placed reliance upon the decision of the Apex Court in the case of Y. Abraham Ajith V. Inspector of Police; 2004(8) S.C.C. 100, wherein in paragraph 12 it has been held:
"The crucial question is whether any part of the cause of action arose within the jurisdiction of the court concerned. In terms of Section 177 of the Code, it is the place where the offence was committed. In essence, it is the cause of action for initiation of the proceedings against the accused."
And also in paragraph 10 it is said:
"As observed by this Court in State of Bihar V. Deokaran Nanshi, (1972) 2 SCC 890, continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all, that it is one of those offences which arises out of the failure to obey or comply with a rule or its requirement and which involves penalty, liability continues till compliance, that on every occasion such disobedience or non-compliance occurs or recurs, there is the offence committed."
5. Similar view has been taken by Apex Court 4 in the case of Bhura Ram & Ors. V. State of Rajasthan; 2008 (3) P.L.J.R. 367, wherein by placing reliance upon finding earlier in Y. Abraham Ajith (Supra) in paragraph 3 it has been held:
"It is contended by the learned counsel for the appellants that the question involved is squarely covered by the decision of this Court in Y.Abraham Ajith and Others V. Inspector of Police Chennai and Another, (2004)SCC 100, wherein this court has 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."
6. The principles laid down above has also been followed by this Court in several Cases including one Baijnath Singh V. State of Bihar & Ors, 2009(3) P.L.J.R. 1012.
7. Learned public prosecutor, while going through the complaint petition also concedes that there is absolutely no averment showing commission of any offence attracting jurisdiction of Courts at Nawadah where the complaint was filed.
8. In view of the above, it is crystal clear that the court where the instant complaint was filed has no jurisdiction. Consequently, the impugned order is not 5 sustainable. In the result the application stands allowed. The impugned order is set aside without affecting right of the complainant-opposite party no.2 to invoke jurisdiction of the courts having jurisdiction in accordance with law.
(Akhilesh Chandra, J.) Patna High Court, The 01st September, 2010.
AAhmad/(N.A.F.R.)