Patna High Court - Orders
Rajesh Kumar Pandey vs The State Of Bihar & Ors on 13 July, 2012
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.28093 of 2011
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Rajesh Kumar Pandey, S/O Madan Mohan Pandey, R/O Vill. Gigna, P.S.
Mohinia, Distt. Kaimur
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Kajal, D/O Dr. Uday Narayan Upadhaya, R/O Mahavirsthan, Ward No.
5, P.S. Sasaram, Distt. Rohtas
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Rajesh Singh, Advocate.
Mr. Rana Pratap Singh, Advocate.
For the Opposite Party No.2 : Mr. N. K. Agrawal, Sr. Advocate.
Mr. S.K. Chaubey, Advocate.
Mr. Sanjay Kumar, Advocate.
For the State: Mr. Jharkhandi Upadhyay, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
CAV ORDER
4 13.07.2012Heard learned counsel for the petitioner and learned counsel for the State as well as learned counsel for the opposite party no.2.
2. This application has been filed for quashing the order dated 17.6.2009 passed by the learned Additional Sessions Judge, F.T.C.No.4, Sasaram in Sasaram (T) P.S. Case No.47 of 2009, Tr. No. 78 of 2010 by which he has taken cognizance against the petitioner under sections 498A, 316 of the Indian Penal Code and ¾ of the Dowry Prohibition Act and also for quashing the entire criminal prosecution.
Patna High Court Cr.Misc. No.28093 of 2011 (4)
2 dt. 13-07-2012
3. In this case the petitioner is challenging the order of cognizance on the ground that all cause of action has taken place either at Varanasi or at Delhi and no cause of action as it appears from the First Information Report has taken place within the territorial jurisdiction of Sasaram and as such Sasaram Court has no territorial jurisdiction to take cognizance and proceed with the matter. He has further challenged the subsequent proceeding of the trial also.
4. From the First Information Report it appears that the marriage was solemnized in between prosecutrix and the petitioner on 28.4.2007. In the aforesaid marriage her parents have incurred expenses of Rs.7,00,000/- in payment in cash as well as articles. After the second marriage the prosecutrix went to the house of her husband situated at House No. E/39, Pishachmochan, Kamayani. It has been further alleged that the treatment of her mother-in-law, father-in-law and her husband was not up to the mark. After 10 days of the second marriage the prosecutrix along with her husband had gone to Delhi and stayed in Bikalp Apartment, C-3, Patparganj, I.,P. Expension, Delhi. It has been further alleged that they have kept whole ornaments including cash of Rs.25,000/- which were given to her at the Patna High Court Cr.Misc. No.28093 of 2011 (4) 3 dt. 13-07-2012 time of her Bidai and thereafter they have started demanding Rs.2,00,000/- from her parents. It has been further averred that when she refused to accede the demand of money from her parents she was beaten. It has further been alleged that younger brother of Rajesh, namely, Minu alias Amit Pandey, on phone, had asked the prosecutrix to bring the money from her parents otherwise she would face bad consequences. Her father-in-law also used to demand the money. When her mother-in-law went to Delhi she also misbehaved with the prosecutrix including assault and abused her. The elder brother of her husband who is also a veteran criminal used to threaten her for dire consequence. When she conceived a child her husband has given a wrong medicine and also assaulted her which led to miscarriage and she was expelled from her house. Ultimately she started living with her sister in Delhi. When she was badly treated at Delhi her parents brought the prosecutrix to Sasaram. It has been also alleged that Nirmal Narayan Dubey and Rangnath Pandey had tried to settle the dispute but failed. It has been further alleged that her parents went to Delhi and met with her husband where it transpired that petitioner had relationship with another girl and that was the reason for bad treatment with Patna High Court Cr.Misc. No.28093 of 2011 (4) 4 dt. 13-07-2012 the prosecutrix.
5. Learned counsel for the petitioner has submitted that the informant has vividly narrated the whole story in the First Information Report from which is appears that admittedly, no cause of action has taken place in the State of Bihar specially within the jurisdiction of court at Sasaram. In support of his contention he has relied on the following judgments:
(i) Bhura Ram and ors. Vs. state of Rajasthan & Anr., reported in 2008(3) P.l.J.R. (SC) 367
(ii) Y. Abraham Ajith and others Vs. Inspector of Police, Chennai and another, reported in 2004(8) SCC 100
(iii) Baijnath Singh Vs. State of Bihar & Ors., reported in 2009(3) P.L.J.R. 1012 He has further submitted that the judgments that have been mentioned hereinabove supports the case of the petitioner as facts of the present case is completely covered the facts mentioned in the aforementioned judgments and he has further submitted that as per plain reading of Sections 177 and 178 of the Code of Criminal Procedure (hereinafter referred to as the Code) it is completely clear that the Court of Sasaram has no jurisdiction to take cognizance and proceed with the trial and made a prayer for quashing the impugned order of cognizance and subsequent proceeding Patna High Court Cr.Misc. No.28093 of 2011 (4) 5 dt. 13-07-2012 also.
6. Learned counsel for the opposite party no.2 has disputed the arguments advanced on behalf of the petitioner on the ground that from the F.I.R. though it appears that the cause of action has taken place in the State of Uttar Pradesh or in Delhi but ultimate suffering of the prosecutrix continued at Sasaram and as such the consequences of action that has taken place in the State at Varanai and Delhi has been still in receipt by the prosecutrix. It has been further submitted that it is not possible for the prosecutrix to attend the case at Delhi or Varansi in view of the fact that she is sufferer of bad treatment perpetrated on her by her husband including her in-laws. It has been further submitted that the court below has taken cognizance on 17.6.2009. The petitioner has filed the present application on 18.8.2011 and earlier to that his discharge application was rejected vide order dated 7.7.2011. Accordingly the charges were framed on 12.12.2011. He further submits that two witnesses from his side have already been examined and as such there is no justification for quashing the impugned order. He has further submitted that in the present case the provision of Section 179 of the Code will apply as this provision has not been Patna High Court Cr.Misc. No.28093 of 2011 (4)
6 dt. 13-07-2012 considered by the Hon'ble Supreme Court in any of the judgment cited by the petitioner. He has further submitted that the Hon'ble Supreme Court in a judgment in the case of Trisuns Chemical Industry Vs. Rajesh Agarwal and others, reported in A.I.R. 1999 SC 3499 has considered the effect of section 179 of the Code and follow up and fall out action that has taken place in one place but has been receipt the consequences in another place. In that circumstances the Hon'ble Supreme Court has approved the cognizance as the provision of Section 190 of the Code of Criminal Procedure does not debar the Magistrate to take cognizance. In support of his contention he has further relied on another judgment in the case of Arun Khanna Vs. The state of Bihar and another, reported in 1994 (1) PLJR 513 (Paragraph nos. 8 to 10) where this Court has considered the effect of provisions of Section 179 vis-à-vis Sections 177 and 178 of the Code and has stated that a lady who was badly treated and misbehaved can not be asked to prosecute his case at the place where it had happened and this Court has held that as her suffering continues which is a continuing offence and as such the consequences of behaviour does not cease to operate after leaving the place Patna High Court Cr.Misc. No.28093 of 2011 (4) 7 dt. 13-07-2012 of her husband and in-laws. It has been further held that if the act of cruelty had not been committed and if there would not have been danger to her life and health perhaps she would not have occasion to leave the place of her husband. Her mental agony does not ceased operate while living at parents house.
7. For coming to the right conclusion this Court will have to consider different provisions of the Code and for that it is relevant to quote the provisions of sections 177, 178, 179 and 182 of the Code as well as the judgments mentioned hereinabove:
"177. Ordinary place of inquiry and trial.- Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.
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
(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.
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 Patna High Court Cr.Misc. No.28093 of 2011 (4)
8 dt. 13-07-2012 consequence has ensued.
182.Offences committed by letters, etc.-(1) Any offence which includes cheating may, if the deception is practiced by means of letters or telecommunication massages, be inquired into or tried by any Court within whose local jurisdiction such letters or massages were sent or were received, and any offence of cheating and dishonestly inducing delivery of property may be inquired into or tried by a Court within whose local jurisdiction the property was delivered by the person deceived or was received or was received by the accused persons.
(2) Any offence punishable under section 494 or section 495 of the Indian penal Code (45 of 1860) may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage, [or the wife by the first marriage has taken up permanent residence after the commission of the offence.]"
8. Coming to the right conclusion it is also desirable to examine the provision of Section 498A of the Indian Penal Code which is as follows:
"498-A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.- For the purpose of this section, "cruelty" means-
(a) any willful conduct which is of such a nature as is likely to derive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any Patna High Court Cr.Misc. No.28093 of 2011 (4) 9 dt. 13-07-2012 person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
(a) 9. Let us examine the judgments cited by the parties for the purpose to find out as to whether the Court of Sasaram has territorial jurisdiction to take cognizance and proceed with the matter. In this connection it will be relevant to first analyse the judgment of the Hon'ble Supreme Court in the case of Y. Abraham Ajith (supra). The fact which arose before the Hon'ble Supreme Court is similar to the present case where the respondent has filed a complaint in the court of the Magistrate alleging commission of offences punishable under Sections 498-A and 406 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. The Hon'ble Supreme Court has examined the matter in the context of cause of action and part thereof, and considered any cause of action within the jurisdiction of the court concerned which may authorize him to take cognizance in the matter. The complaint petition itself disclosed that after 15.4.1997, the respondent left Nagercoil and came to Chennai and where she settled. All the allegations which was per se without any dispute took place, according to the complainant petition at Nagercoil, and therefore, the courts Patna High Court Cr.Misc. No.28093 of 2011 (4) 10 dt. 13-07-2012 at Chennai did not have the jurisdiction to take cognizance and it has been alleged that no cause of action has taken place within the limit of Chennai court and as such there is no justification for taking cognizance by Chennai court. In that context the court has examined the provisions of Section 177 and 178 of the Code and has also examined meaning of cause of action. The court has also examined if any offence has been committed to a particular jurisdiction and no part of cause of action has taken place in jurisdiction of another court, that other court where the cause of action has not taken place will have no jurisdiction to take cognizance. The court has considered that ordinarily when the offence is limited to a particular place and when there is no allegation of continuation of offence, in that circumstances the real test will be cause of action and part thereof and the court has given its view that wherever the offence has been committed in context of section 498A of the Indian Penal Code the court in whose jurisdiction the offence has been committed or part thereof will have jurisdiction and no complaint petition will be entertainable by the prosecutrix where she was ordinarily residing subject to the condition that no part of cause of action has taken place in the jurisdiction of the Patna High Court Cr.Misc. No.28093 of 2011 (4) 11 dt. 13-07-2012 court taking cognizance. In this connection the following paragraphs of the said judgment will be relevant for the proper consideration:
"12. The crucial question is whether any part of the cause of action arose within the jurisdiction of the concerned Court. 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.
13. While in civil cases, normally the expression "cause of action" is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression "cause of action"
is therefore not a stranger to criminal cases.
14. It is settled law that cause of action consists of bundle of facts, which give cause to enforce the legal inquiry for redress 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.
15. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the Court. Every fact, which is Patna High Court Cr.Misc. No.28093 of 2011 (4) 12 dt. 13-07-2012 necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in "cause of action".
(b) 9(a). After due consideration the court has directed to return the complaint petition and to file the same before the appropriate court to be dealt with in accordance with law.
(c) 10. In another judgment that has been cited by the petitioner in the case of Bhura Ram (supra), the Hon'ble Supreme Court has examined the authority of taking cognizance by the court where the cause of action and part thereof has taken place. In this case also the jurisdiction of the Additional Chief Judicial Magistrate was challenged on the ground that the Magistrate has no jurisdiction to try the offence as the cause of action has not accrued within the jurisdiction of court. The matter travelled up-to Hon'ble Supreme Court. It was argued before the court that Section 498A of the Indian penal Code being a continuing offence the complaint can not be dismissed on the ground that the court has no jurisdiction. It was argued that offence of cruelty being continuing offence and will travel along with the complainant and where she was residing. The court has followed the earlier judgment in the case of Y. Abraham Ajith (supra) and has held that the facts mentioned in the Patna High Court Cr.Misc. No.28093 of 2011 (4) 13 dt. 13-07-2012 complaint petition disclosed that all cause of action has taken place out side the jurisdiction of court of Ganganagar and it was found that all cause of action has taken place in the State of Punjab and no part of cause of action arose in the State of Rajasthan and following the earlier judgment allowed the appeal with a direction to return the complaint petition to the complainant and if so desire she may file the same in the appropriate court to be dealt with in accordance with law.
(d) 11. Learned counsel for the petitioner has further relied on the judgment in the case of Baijnath Singh (supra) where the judgment of the Hon'ble Supreme Court in the case of Y. Abraham Ajith (supra) was followed and it was held that the test will be where the offence was committed and the principle of cause of action and part thereof was applied. It was considered the word ordinarily which was interpreted by the Hon'ble Supreme Court in the case of Y. Abraham Ajith (supra) and has held that the court will have no jurisdiction in whose territorial jurisdiction no cause of action and part thereof has taken place. In this case also direction was given to return the complaint petition with a liberty to file the same before the appropriate forum. Patna High Court Cr.Misc. No.28093 of 2011 (4)
14 dt. 13-07-2012
(e) 12. The aforesaid judgment provides that the test of jurisdiction will be only the cause of action and part thereof. The concept of continuing offence and fall-out that has taken place in another place was not under consideration.
(f) 13. Learned counsel for the opposite party no.2 has advanced the argument that jurisdiction of the court can not be confined to only on the test of cause of action or part thereof in consideration of Sections 177 and 178 of the Code. It also requires that if fall-out of that action arises in other jurisdiction in that circumstance also the court where the fallout has travelled will have a jurisdiction to take cognizance and in support of his contention he has relied on the judgment. It will be relevant to examine first the judgment that has been relied on by the opposite party no.2 in the case of Trisuns Chemical Industry (supra) where the Hon'ble Supreme Court has considered Sections 177, 178 and 179 of the Code and while considering Section 179 of the Code the Court has tested the jurisdiction on the touch stone of cause of action and part thereof and also the consequences which have been ensued to the other place. The Director of the Company offered to supply Toasted Soyabean Extractions for a price of nearly four and half Patna High Court Cr.Misc. No.28093 of 2011 (4) 15 dt. 13-07-2012 crores of rupees. Accordingly advance was paid through Cheque. The accused persons sent the commodities which were most inferior in quality. The complainant suffered a loss of substantial amount which led to filing of the complaint petition. Cognizance was challenged on the ground that the Judicial Magistrate , Ist Class, Gandhidham has no jurisdiction in respect of the offence as alleged. The High Court of Gujrat has quashed the order of cognizance on the ground that no cause of or part thereof has taken place on the territorial jurisdiction of that place. The Hon'ble Supreme Court has considered Sections 179 and 190 of the Code where the court has said that the only restriction contained in Section 190 of the Code is that the power to take cognizance is subject to the provisions of Chapter XIV. The Hon'ble Supreme Court has further held that there is nothing in Chapater XIV which prohibits the Magistrate to take cognizance with regard to the allegation that has taken place out side the territorial jurisdiction and the Court has further held that the jurisdictional aspect becomes relevant only when the question of enquiry or trial would arise. In that connection it will be relevant to quote the following portion of the said judgment: Patna High Court Cr.Misc. No.28093 of 2011 (4)
16 dt. 13-07-2012 ".....Therefore, when there is nothing in chapter XIV of the Code to impair the power of a judicial magistrate of first class taking cognizance of the offence on the strength of any territorial reason it is impermissible to deprive such a magistrate of the power to take cognizance of an offence of course, in certain special enactments special provisions are incorporated for restricting the power of taking cognizance of offences falling under such acts. But such provisions are protected by non obstante clauses. Any way that is a different matter.
12. The jurisdictional aspect becomes relevant only when the question of enquiry or trial arises. It is therefore a fallacious thinking that only a magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to the Court which has jurisdiction to enquire into or try the offence and that situation would reach only during the post cognizance stage and not earlier."
(g) 14. After full consideration the court has found that even for the purposes of taking cognizance it was not required that the Magistrate having a territorial jurisdiction can only take the cognizance. The Jurisdictional aspect is only relevant for the purpose of enquiry and trial.
(h) 15. In another judgment cited by the learned counsel for opposite party no.2 in the case of Arun Khanna (supra) where the challenge was made that Dhanbad court has no territorial jurisdiction to take cognizance of an offence which had taken place at Amritsar. The Court has Patna High Court Cr.Misc. No.28093 of 2011 (4) 17 dt. 13-07-2012 considered the definition of cruelty which has been embodied in Section 498A of the Indian Penal Code and the Court has considered the consequences of the act committed by the accused persons which led to mental agony at Dhanbad. In other words, offence was treated to be continuing, considered the definition of cruelty in context of Section 498A of the Indian Penal Code and has given a extended meaning. The Court has held that if the woman continues to suffer the mental agony or torture as a result of the acts done to her by the husband or his relatives forcing her to leave the matrimonial home, it must be said that the cruelty is continuing. While construing the question of jurisdiction with respect to offence under section 498A of the Indian Penal Code the Court has held that social background and the object for which the said offence has been created has been taken into consideration. If victim lady would be compelled to file a complaint only at the place where the act was committed, that is, at the place where the husband/in-laws reside, she might not be able to prosecute the complainant properly which will not serve the desired object and on consideration of the aforesaid aspect of the matter this Court has held that Dhanbad Court has Patna High Court Cr.Misc. No.28093 of 2011 (4) 18 dt. 13-07-2012 rightly taken cognizance as the consequences of torture which was perpetrated to her in the State of Punjab continues to operate or it would have a fall-out at the place where the complainant was residing.
16. Recently the Hon'ble Supreme Court in the case of Sunita Kumari Kashyap Vs. The State of Bihar and another, reported in 2011(11) SCC 301 has considered the issue with regard to cognizance by the court where the point has been raised about the lack of territorial jurisdiction. In this case the girl from Gaya was married to Ranchi where the accused persons subjected Sunita Kumari Kashyap (bride) to cruelty. After some time of marriage there was demand from father-in-law, mother-in-law including the husband for dowry. During her pregnancy she was forcibly driven out from her matrimonial house at Ranchi and brought to her parental house at Gaya. A complaint case under Sections 498A and 406 read with Section 34 of the Indian Penal Code was lodged against the husband. The court at Gaya took cognizance. The matter was challenged before this Court and this Court has quashed the cognizance on the ground that Gaya court has no jurisdiction as all cause of action has taken place at Ranchi. The matter went to Hon'ble Supreme Court where the point Patna High Court Cr.Misc. No.28093 of 2011 (4) 19 dt. 13-07-2012 was taken by the wife that cruelty perpetrated on her was a continuing one and episode at Gaya was only a consequence of continuing offence of harassment and ill treatment meted out to the complainant and has held that clause © of Section 179 of the Code is attracted. The Hon'ble Supreme Court quashed the order of this Court and remanded back the matter for trial at Gaya court. From the side of the husband the point was taken that the statement made in the complaint petition at best can be said that husband had ill treated her at Gaya but there is nothing on the complaint petition against other persons which can constitute an offence against them at Gaya. The court has said that the husband has threatened her with dire consequences for non fulfilling the demand of dowry at Gaya and accordingly the court has held that the case is covered under sections 178 and 179 of the Code as in that case the offence was a continuing one having been committed in more local areas and one of the local areas being at Gaya.
17. In view of the judgments of the Hon'ble Supreme Court and this Court is to examine as to whether the Sasaram court has jurisdiction to take cognizance and proceed with the matter, for coming to a right conclusion only the statement made in the First Information Report without any addition or Patna High Court Cr.Misc. No.28093 of 2011 (4) 20 dt. 13-07-2012 substraction has to be looked into. If cause of action or part thereof has taken place within the jurisdiction of Sasaram then the court will have a jurisdiction. All the earlier judgments of the Hon'ble Supreme Court have confined its view with regard to cause of action and part thereof. The Hon'ble Supreme Court has not given any decision as to what will happen if a lady has been ill treated at place A and driven out and her parental house belonged to at place B which is far away from place A whether the court at place B will have a jurisdiction on a consideration of Section 179 of the Code. Of course the trauma that was faced at place A has not come to an end at place B because when she was expelled forcibly from place at A he carries his mental torture at place B. In this view of the matter, now this Court will have to confine its consideration only in respect of cause of action as the view that has been taken by this Court in the case of Arun Khana (supra) is completely missing consideration by the Hon'ble Supreme Court.
18. From the First Information Report it appears that the lady was married to a groom of Varanasi where she was ill treated and later on she was shifted at Delhi where her husband used to assault her and demanded dowry and Patna High Court Cr.Misc. No.28093 of 2011 (4) 21 dt. 13-07-2012 accordingly she was compelled to leave her house.
19. In view of the judgments of the Hon'ble Supreme Court this Court feels that all cause of action has taken place either at Varanasi or at Delhi where she was badly treated. From the First Information Report it does not appear that any continuing offences were committed on her which has consequences at Sasaram. In this view of the matter, this Court finds that the order of cognizance dated 17.6.2009 in connection with Sasaram (T) P.S. Case No.47 of 2009 and subsequent proceeding is quashed and the court below is directed to hand over the First Information Report to enable her to file the same before appropriate authority having jurisdiction.
20. Before parting with the judgment this Court feels that the time has come the Hon'ble Supreme Court may consider the aspect of the matter that agony suffered by victim does not cease to operate merely having left the place of husband but mental torture and agony travels to place where she has been residing consequences continued to be felt by a victim lady at her parental house as her trauma and mental torture does not come to end. As the aforesaid judgments of the Hon'ble Supreme Court are binding on this Court and as Patna High Court Cr.Misc. No.28093 of 2011 (4) 22 dt. 13-07-2012 such the petition is allowed with the aforesaid observation.
(i)
Vinay/- (Shivaji Pandey, J)