Patna HC-IPC 498a Quashed-No Territorial Jurisdiction
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr. Misc. No.229 of 2008
DEBASISH DEY, SON OF LATE BIJAY KUMAR DEY, RESIDENT
OF B.G. COLONY, RAILWAY QUARTR NO. 6/B, POLICE STATION AND DISTRICT BONGAIGAON (ASSAM). .. PETITIONER.
1. THE STATE OF BIHAR.
2. SURINA RAJAN, WIFE OF DEBASISH DEY, RESIDENT OF B.G. COLONY, RAILWAY QUARTR NO. 6/B, POLIE STATION
BONGAIGAON, DISTRICT BONGAIGAON (ASSAM) AT PRESENT
RESIDING AT HOUSE NO. 2M/71, BAHADURPUR HOUSING
COLONY, MAHATMA GANDHI NAGAR, POLICE STATION
KANKARBAGH, DISTRICT PATNA.
04/ 23.06.2010 This petition is directed against the order dated 06.09.2007 by which the cognizance has been taken by the SDJM, Patna in Complaint Case No. 943(C) of 2007 of the offence under Section 498A of the Indian Penal Code and ordered to issue summon against the accused person.
2. The prosecution case as alleged in the complaint petition filed by the complainant is that the complainant Surina Ranjan was married with Debasish Dey on 24.09.2006 in the temple situated at Bagribari, Dhubari (Assam) according to the Hindu rites and rituals and the victim complainant appeared before Special Marriage Officer, Golpara along with the accused for registration of the marriage and marriage certificate was issued and the complainant began to live with her husband accused since 24.09.2006 at B. G. Colony, Railway Quarter No. 6/8 Bongaigaon, Assam. There is further allegation of demand of Rs.5,00000/- (five lacs) in December, 2006 and the complainant was pressurized to inform her father for sending rupees five lacs and thereafter there is allegation of subjecting 2
cruelty by different modes and means including assault. Then it is alleged that the complainant informed her maternal uncle to came at Bongaigaon and try to settle the matter and further on 15.03.2007 took her signature on plain paper including non judicial stamp by which the victim became sick and her treatment was going on.
3. The further case is that on 24.03.2007 the complainant learnt about the planning of the accused persons for dire consequence to her live and limb so she succeeded to flee away from her Sasural to her Naihar.
4. The learned counsel for the petitioner, however, contended that all the act of committing or subjecting cruelty on the person of the victim are at Bongaigaon, much less, no part of the occurrence has taken place in the jurisdiction of the Panta district and Judicial Magistrate, First Class, has no jurisdiction and has relied upon decision reported in PLJR 2007(4) 192 (Prannath Gupta & Anr. Vs. The State of Bihar & Anr.), 2008 (3) PLJR 367 (Bhura Ram & Ors. Vs. State of Rajasthan & Anr.) and 2009 (4) PLJR 1 SC Section (Shri Rajendra Ram Chandra Kavelekar Vs. State of Maharashtra & Anr.).
5. Learned counsel for the opposite party appeared and submitted that the Magistrate taking cognizance of an offence need not have territorial jurisdiction to try a case and any Judicial Magistrate has power to take cognizance and has relied upon decision reported in 1999 (8) SC 686 (Trisuns Chemical Industry Vs. Rajesh Agarwal & Ors.). In decision reported in 2008(3) PLJR 367 (Bhura Ram & Ors. Vs. State of Rajasthan & Anr.) a complaint was lodged by Rajeshwari which was sent for institution of a case under Section 156(3) of the Cr.P.C to the 3
police station for investigation and FIR was lodged under Section 498A of the Indian Penal Code and allied sections of the Indian Penal Code. Challan was filed, charges were framed and the petitioner made a prayer before the Court that the Court of ACJM has no jurisdiction to try the offence as the cause of action accrued within the jurisdiction of other Court. The revision preferred before the Sessions Judge was rejected and High Court also dismissed the criminal case. Petition preferred by the petitioner against the order passed in revision holding that marriage solemnized at village Ramsara, District Firojpur and right from the marriage the complainant and her husband lived in Punjab and her in-laws and husband has died and now she is residing in Shri Gangadhar, District Rajasthan along with maternal relation and so still the offence under Section 498A of the Indian Penal Code being a continuing one, the complaint cannot be dismissed whereas the complainant is at present living and hence, the offence is still continuing within the local area of Rajasthan where, at present, the complainant is living and hence, the ACJM Ganganagar has jurisdiction to try the case. The court also found all the allegation regarding the offence charged which have been committed at the previous resident of the complainant and relying upon decision reported in 2004 (8) SCC 100 (Y. Abraham Ajith & Ors. Vs. Inspector of Police, Chennai & Anr.) 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 the offence was committed and hence under these facts it was held that having regard to the factual scenario disclosed by the complainant the inevitable 4
conclusion is that no part of cause of action arose in Rajasthan and therefore, the Magistrate concerned has no jurisdiction to deal with the matter and hence, quash the proceeding before the ACJM, Gandhinagar and ordered the complaint be returned to the complainant, if so, she wishes she may file the same in the appropriate court to be dealt with in accordance with law.
6. However, in decision reported in PLJR 2007(4) 192 (Prannath Gupta & Anr. Vs. The State of Bihar & Anr.) the case was for quashing the order of cognizance on the ground that the entire complaint showed that whatever incidence happened was at Patna matrimonial home of the complainant and finally ousted from the matrimonial home and thereafter she went back to Bhagalpur and there was no allegation of any demand at Bhagalpur and relying upon decision reported in AIR 2004 (8) SCC 100 (Y. Abraham Ajith & Ors. Vs. Inspector of Police, Chennai & Anr.) held that since no cause of action arose within the jurisdiction of the court at Bhagalpur and hence, the Bhagalpur Court has no jurisdiction to entertain a complaint and quash the proceeding with a liberty to the complainant to take appropriate step for filing complaint before the appropriate court in decision reported in 2009 (4) PLJR 1 SC Section (Shri Rajendra Ram Chandra Kavelekar Vs. State of Maharashtra & Anr.). This was a case in which a case was filed under the jurisdiction of Ranchi in Jharkhand bearing R.C. Case No. 18 of 2004 for offence under Sections 420, 467, 468 and 471 of the Indian Penal Code and Sections 13(2) and 13(1) (d) of Prevention of Corruption Act and a writ petition was filed before the High Court of Judicature at 5
Bombay on several other grounds that the Ranchi has no jurisdiction to register a case against the appellant since the entire cause of action has arisen in the State of Maharashtra and so the CBI, Ranchi has no locus to file a complaint against the appellant in respect of the offence mentioned in the charge and the petition having been rejected by the Bombay High Court, the appellant moved the Supreme Court and Supreme Court after considering the facts and circumstances held that the cause of action has arisen within the jurisdiction of Suj-Judge, Ranchi. The investigation is complete at Ranchi. Records and the documents pertaining to the complainant and the charge sheet are before Special Judge, Ranchi and hence, the High Court of Judicature at Bombay was perfectly justified in declining to entertain the writ petition and rejected the application relying upon decision reported in 2007(7) SCC 640 (Navinchandra Majithia Vs. State of Maharastra) and 2007 (5) SCC 786 (Asit Bhattacharjee Vs. Hanuman Prasad Oja). The Hon’ble Supreme Court in all the three decision mentioned above held that the trial is to be conducted at a place where the place of occurrence falls or within the jurisdiction of the court where the occurrence has taken place and not the place where the complaint has been filed.
7. Learned counsel for the opposite party has relied upon decision reported in 1999 (8) SCC 686 (Trisuns Chemical Industry Vs. Rajesh Agarwar & Ors.) with diametric apposite contention that any Judicial Magistrate of First Class has jurisdiction to try a case. However, in decision reported in 1999 (8) SCC 686 (Trisuns Chemical Industry Vs. Rajesh Agarwar & Ors.) a complaint was filed by the company 6
before the Judicial Magistrate of First Class alleging certain offence including the offence of cheating against another complaint and its Director and the said complaint was sent for investigation under Section 156 (3) Cr.P.C. The accused Director moved the High Court of Gujarat under Section 482 for quashing the complaint and the Single Judge quashed the complaint as also the order passed by the Magistrate thereupon. The allegation in the complaint was, in sum and substance, that the accused Director approached him and offered to supply 5450 Metric Ton of Toasted Soabin Extraction for a price of merely four and half crores. The rate quoted was higher than marked price the appellant was to pay the price in advance as demanded by the accused, so the same was paid through cheque but the accused supplied the commodity of most inferior and sub-standard quality. The product and the report obtained from laboratory were sent for testing and it was reported that commodity was sub-standard causing a loss of Rs.17 lacs by said transaction. The learned Single Judge quashed the complaint on two grounds and one of them was the jurisdiction stating therein that there is nothing in the complaint which shows that any party of the transaction took place within the territory of State of Gujarat and also observed that it appears that even the supply of the processed Soabin were delivered to the complainant company at the factory itself and hence Judicial Magistrate, Ganghidham ought to not have taken cognizance. However, this view of the High Court was held to be erroneous on the ground that Magistrate taking cognizance must necessarily have territorial jurisdiction to try the case and Chapter XIII of the Cr.P.C relates to jurisdiction of the criminal court in enquiries 7
and trial but also considered Section 179 of the Cr.P.C which lays that the place shall cover even the jurisdiction where the consequence has ensued and said provision may give the power to court to take cognizance and further consider to take cognizance upon police report and interpreted that any Magistrate in Section 192 of the Cr.P.C as enshrined of first class may take cognizance of offence upon a police report or upon receiving a complaint and section 193 of the Cr.P.C only imposed a restriction. However, there is nothing in Chapter XIV to impair the power of Judicial Magistrate, First Class taking cognizance of the offence on the strength of territorial region. However, in para 14 of the same judgment it has been observed that jurisdictional aspect becomes relevant only when the question of enquiry or trial arises and it has further been observed that after taking cognizance the Magistrate may have to decide as to the court which has jurisdiction to enquire into or try the offence and then situation would reach only during the post cognizance stage and not earlier. Further in para 15 of the decision reported in 1999 (8) SCC 686 (Trisuns Chemical Industry Vs. Rajesh Agarwar & Ors.) it has been held that the High Court without considering any of the aforesaid legal aspect reached erroneous conclusion that the Judicial Magistrate of First Class, Gandhidham has no jurisdiction to taken cognizance of the offence as alleged merely because such offence could have been committed out side the territorial limits of the State of Gujarat without being apprised of the fuller conspectus a decision on the question of jurisdiction should not have been taken by the High Court at a grossly premature stage. Hence, from perusal of paras 14 and 15 it is apparent that in the facts and circumstances 8
of this case FIR itself was quashed giving opportunity to the I.O or the Investigating Authority to go into the question of jurisdiction whether any part of the cause of action has arose in the territorial jurisdiction and even at the stage of investigation itself the FIR was quashed though this decision itself has held that taking into consideration the fact that the Magistrate has no territorial jurisdiction. He may have taken the decision to transfer it having found that there is no territorial jurisdiction at all after investigation and the most important aspects and facts that the learned Magistrate did not take into consideration the allegation and imputation of Section 179 regarding the consequence ensued as it was the company who was going at loss. However, if a part of cause of action arose at two places then the other place may have jurisdiction, however, under the present facts and circumstances of the case, since the case concerns with a complaint case and the investigation, the question for jurisdiction comes and falls during enquiry and trial. However, in a complaint case when the complaint is filed and the Magistrate applies its mind, the cognizance is said to have been taken at that stage itself when the Court applied its mind for proceeding with the complaint and taking the statement of the complainant and its witnesses and after taking this cognizance the stage of enquiry proceeds when the court proceeds to take the statement of the complainant and his witnesses and thereafter the stage of 203 and 204 of the Cr.P.C comes where the summon is either ordered to be issued if the court satisfies that offence is made out against the accused persons and the accused has implication in the crime and hence, in the decisions relied upon by the learned counsel for the opposite party even in para 14 and 15 9
established that Chapter XIII is with regard to the enquiry and trial and hence, the jurisdiction is concerned not at the stage of cognizance but the jurisdiction of the Court applies for enquiry and trial though not at the stage of taking cognizance. Even applying this principle, the court has not territorial jurisdiction to enquire and hence the impugned order is an order issuing process against the accused persons after taking cognizance passing through the stage of enquiry and since no part of the cause of action arose in the territory of the Patna as alleged in the complaint petition and nothing has been show to take that any occurrence took place at Patna nor the consequence even ensue at Patna and hence the Patna Court has no territorial jurisdiction and hence the impugned order is not only the order of taking cognizance but order issuing process after taking cognizance in a complaint case which is squarely covered by the decision reported in 2008(3) PLJR 367 (Bhura Ram & Ors. Vs. State of Rajasthan & Anr.) and PLJR 2009 (4) PLJR 1 SC Section (Shri Rajendra Ram Chandra Kavelekar Vs. State of Maharashtra & Anr.) as stated above and hence the impugned order is set aside and the petition is allowed.
Kundan (Gopal Prasad, J.)