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Allahabad High Court: IPC 498a Quashed based on Jurisdiction

December 14, 2012 Leave a comment
Allahabad High Court
Dheeraj Jain And Ors. vs State Of U.P. And Anr. on 1 November, 2007
Equivalent citations: I (2008) DMC 10
Author: M Mittal
Bench: M Mittal

JUDGMENT

M.K. Mittal, J.

1. This application has been filed under Section 482, Cr.P.C. for quashing the charge-sheet No. 14/02, State v. Dheeraj Jain and Ors. under Sections 498A and 406, I.P.C. and Sections 3/4, Dowry Prohibition Act in Criminal Case No. 5066/02 pending in the Court of Chief Judicial Magistrate, Saharanpur.

2. Heard the applicant Sri Dheeraj Jain in person, and Mr. G.S. Hajela learned Counsel for the opposite party No. 2 and learned AGA for the State and perused the material on record.

Counter and rejoinder affidavits have been exchanged.

3. The brief facts of the case are that the opposite party No. 2 filed an application under Section 156(3), Cr.P.C. and on that basis learned Magistrate directed for registration of the case and after investigation charge-sheet has been submitted against the accused persons. The case as taken in the First Information Report is that Smt. Shikha was married with Dheeraj Jain according to Hindu rites on 29.6.2001. Dowry was given at the time of the marriage. After marriage the opposite party No. 2 went to her sasural in Delhi. The informant was asked to bring Rs. 2,50,000 and Maruti car but when she told that her father was not in a capacity to give these things, she was badly beaten and no food was given to her for several days. About two months prior to the filing of the application her maternal uncle Anil Kumar Jain came to know about harassment and came to her sasural and tried to explain the things but the accused were adamant and she was brought to Saharanpur. After some time the informant along with Anil Kumar Jain came to her sasural and Rs. 50,000 were given to applicant No. 1 but still the harassment and demand for additional dowry was not given up and she was again beaten and mentally tortured to the extent that even she decided to commit suicide. She also sent a letter to her maternal uncle. On 25.11.2001 she telephoned her maternal uncle Anil Kumar Jain and told him that she was being continuously harassed and beaten and the accused were adamant for additional dowry. Next day Anil Kumar Jain came to her sasural with some relations and efforts were made to defuse the problem but the accused did not agree and demanded car and Rs. 2,50,000.00 and also told her uncle that if these items were not given there was no need to leave her in her sasural as she would be killed. Thereafter her maternal uncle brought her to Saharanpur.

4. The informant made efforts to lodge the report at police station but it was not written. She gave an application to Superintendent of Police and when no action was taken she filed the application under Section 156(3), Cr.P.C. on 4th December, 2001. First Information Report was registered on 13th December, 2001 after the order was passed by the learned Magistrate on 11th December, 2001.

5. The main contention of the applicant is that the Court at Saharanpur has no jurisdiction to entertain the present case because no cause of action or part of cause of action accrued within the limits of District Saharanpur. According to applicant even if the allegations as made in the First Information Report, although denied by him, are taken to be correct, the incident of alleged harassment and mental torture took place in the sasural of the informant which is situated in Delhi and therefore the Court at Saharanpur has no jurisdiction to entertain the case.

6. In this matter it will be useful to refer Section 177, Cr.P.C. which provides that every offence shall ordinarily be enquired into and tried by a Court within whose local jurisdiction it was committed.

7. The offence under Section 498, I.P.C is not a continuing offence. In this case whatever offence is alleged to have been committed is within the area of Delhi and not in Saharanpur and, therefore, the Court at Saharanpur has no jurisdiction to try this case. In this connection the reference can be made to the cases of Y. Abraham Ajith and Ors. v. Inspector of Police, Chennai and Anr. and Ramesh and Ors. v. State of Tamil Nadu I (2005) CCR 245 (SC) : 2005 SCC (Criminal)

735. In these cases it has been held that the trial for the offence under Section 498, I.P.C. can take place where the incident is alleged to have been committed.

8. Learned Counsel for the complainant could not show any law to the contrary. However, he contended that in case it is held that the Court at Saharanpur has no jurisdiction, the Court be directed to return the complaint to the complainant. In the case of Y. Abraham Ajith (supra), the complainant had filed a complaint and the Hon’ble Apex Court while holding that the Court at Chennai had no jurisdiction, directed for quashing of the proceedings and the return of the complaint to respondent No. 2 who was permitted to file the same in the appropriate Court if she so chose to do. In the instant case the First Information Report was registered on the basis of the application given by the opposite party No. 2 and after investigation charge-sheet has been submitted. In the circumstances, charge-sheet cannot be returned to the informant to be filed in appropriate Court.

9. The applicant Dheeraj Jain has argued on other points also but it is not necessary for decision of this case because the application under Section 482, Cr.P.C. can be allowed on the ground of jurisdiction alone.

10. The application under Section 482, Cr.P.C. is hereby allowed and the proceedings in Criminal Case No. 5066/02, State v. Dheeraj Jain and Ors. pending in the Court of Chief Judicial Magistrate, Saharanpur, are hereby quashed. However, it shall be open to the opposite party No. 2 to take necessary legal action in the matter in appropriate Forum as may be permissible to her under law.

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Supreme Court:- Casual, wholesale reference to in-laws won’t justify dowry case, hence quash.

October 23, 2012 5 comments

“It is a well-settled principle laid down in cases too numerous to mention that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings, [thus] preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family at the instance of the complainant, who is out to settle scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.”

the court clarified, “We deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegations of an overt act indicating the complicity of the members of the family named in the FIR in a given case, cognisance would be unjustified.”

 

Pls go through the Judgment below:

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REPORTABLE

IN THE SUPREME COURT OF INDIA


CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1674 OF 2012
(Arising out of SLP (Crl.) No. 10547/2010)

 

Geeta Mehrotra & Anr. ..Appellants
Versus
State of U.P. & Anr. . Respondents
J U D G M E N T
GYAN SUDHA MISRA, J.
1. This appeal by special leave in which we granted leave has been filed by the appellants against the order dated 6.9.2010 passed by the High Court of Judicature at Allahabad in Crl. Miscellaneous Application No.22714/2007 whereby the High Court
had been pleased to dispose of the application moved by the appellants under Section 482 Cr.P.C. for quashing the order of the Magistrate taking cognizance against the appellants under Sections 498A/323/504/506 IPC read with Section 3/4 of the Dowry Prohibition Act with an observation that the question of territorial jurisdiction cannot be properly decided by the High
Court under Section 482 Cr.P.C. for want of adequate facts. It was, therefore, left open to the appellants to move the trial court for dropping the proceedings on the ground of lack of territorial jurisdiction. The High Court however granted interim protection to the appellants by directing the authorities not to issue coercive process against the appellants until disposal of
the application filed by the appellants with a further direction to the trial court to dispose of the application if moved by the appellants, within a period of two months from the date of moving the application. The application under Section 482 Cr.P.C. was thus disposed of by the High Court.
2. The appellants in spite of the liberty granted to them to move the trial court, have filed this appeal for quashing the proceedings which had been initiated on the basis of a case lodged by the respondent No.2 Smt. Shipra Mehrotra (earlier known as Shipra Seth) against her husband, father-in-law, mother-in-law, brother-inlaw and sister-in-law. This appeal has been preferred by the sister-in-law, who is appellant No.1 and brotherin-law of the complainant, who is appellant No.2.
3. The case emerges out of the first information report lodged by respondent No.2 Smt. Shipra Mehrotra under Sections 498A/323/504/506 IPC read with Section 3/4 of the Dowry Prohibition Act bearing F.I.R.No. 52/2004. The F.I.R. was registered at Mahila Thana Daraganj, Allahabad wherein the complainant alleged that she was married to Shyamji Mehrotra s/o Balbir Saran who was living at Eros Garden, Charmswood Village, Faridabad, Suraj Kund Road at Faridabad Haryana as per the Hindu marriage rites and customs. Prior to marriage the complainant and her family members were told by Shyamji Mehrotra and his elder brother Ramji Mehrotra who is appellant No.2 herein and their mother Smt. Kamla Mehrotra and
her sister Geeta Mehrotra who is appellant No.1 herein that Shyamji is employed as a Team Leader in a top I.T. Company in Chennai and is getting salary of  Rs.45,000/- per month. After negotiation between the parents of the complainant and the accused parties, the marriage of the complainant Shipra Seth (later Shipra Mehrotra) and Shyamji Mehrotra was performed
after which the respondent-complainant left for the house of her in-laws.
4. It was stated that the atmosphere in the house was peaceful for sometime but soon after the wedding, when all the relatives left, the maid who cooked meals was first of all paid-off by the aforesaid four persons who then told the complainant that from
now onwards, the complainant will have to prepare food for the family. In addition, the above mentioned people started taunting and scolding her on trivial issues. The complainant also came to know that Shyamji was not employed anywhere and always stayed in the house. Shyamji gradually took away all the money which the complainant had with her and then told her that her father had not given dowry properly, therefore, she should get Rupees five lakhs from her father in order to enable him to start business, because he was not getting any job. When the complainant clearly declined and stated that she will not ask her parents for money, Shyamji, on instigation of other accused-family members, started beating her occasionally. To escape
every day torture and financial status of the family, the complainant took up a job in a Call Centre at Convergys on 17.2.2003 where the complainant had to do night shifts due to which she used to come back home at around 3 a.m. in the morning. Just on her return from work, the household people started playing bhajan cassettes after which she had to getup at 7’o clock in
the morning to prepare and serve food to all the members in the family. Often on falling asleep in the morning, Shyamji, Kamla Devi and Geeta Mehrotra tortured the complainant every day mentally and physically. Ramji Mehrotra often provoked the other
three family members to torture and often used to make the complainant feel sad by making inappropriate statements about the complainant and her parents. Her husband Shyamji also took away the salary from the complainant.
5. After persistent efforts, Shyamji finally got a job in Chennai and he went to Chennai for the job in May, 2003. But, it is alleged that there was no change in his behaviour even after going to Chennai. The complainant often called him on phone to talk to him but he always did irrelevant conversation. He never spoke properly with the complainant whenever he visited home and often used to hurl filthy abuses. The complainant states that she often wept and tolerated the tortures of the accused persons for a long time but did not complain to her family members, as that would have made them feel sad. At last, when the complainant realized that even her life was in danger, she was compelled to tell everything to her father on phone who
was very upset on hearing her woes. On 15.7.2003 complainant heard some conversation of her mother-inlaw and sister-in-law from which it appeared to her that they want to kill the complainant in the night only. Thereupon the complainant apprised her father of the situation on phone to which her father replied that he will call back her father-in-law and she should go with
him immediately and he will come in the morning. The father-in-law Satish Dhawan and his wife who were living in NOIDA thereafter came in the night and somehow took the complainant to their home who also came to know of everything. The complainant’s father and brother later went to her matrimonial home on 16.7.2003. On seeing her father and brother, Kamla
Mehrotra and Geeta Mehrotra started speaking loudly and started saying that Shyamji would be coming by the evening and so he should come in the evening for talking to them. Her father and brother then went away from there. That very day, her husband Shyamji and brother-in-law Ramji also reached home. On reaching there, Shyamji abused her on phone and told her to send her father.
6. When father and brother of the complainant went home in the evening, they were also insulted by all the four and video camera and tape were played and in the end they were told that they should leave from here. Insulted, they came back from there and then came back to Allahabad with the complainant. For many  days the complainant and her family members hoped
that the situation would improve if the matter was resolved. Many times other people tried to persuade the in – laws but to no avail. Her brother went to their house to talk to her in – laws but it came to his knowledge that the in – laws had changed their house.
After much effort, they came to know that the father-inlaw and mother-in-law started living at B-39, Brahma cooperative group housing society, block 7, sector-7, Dwarka, Delhi. On 19.09.04 evening, her father talked to Kamla Mehrotra and Geeta Mehrotra regarding the complainant using bad words and it was said that if her daughter came there she will be kicked out. After some time Shyamji rang up at complainant’s home but on hearing the complainant’s voice, he told her abusively
that now she should not come his way and she should tell her father not to phone him in future. At approximately 10:30 pm in the night Ramji’s phone came to the complainant’s home. He used bad words while talking to her father and in the end said that he had got papers prepared in his defence and he may do whatever he could but if he could afford to give Rs.10
lakhs then it should be conveyed after which he will reconsider the matter. If the girl was sent to his place without money, then even her dead body will not be found.
7. On hearing these talks of the accused, the complainant believed that her in-laws will not let the complainant enter their home without taking ten lakhs and if the complainant went there on her own, she will not be safe. Hence, she lodged the report wherein she prayed that the SHO Daraganj should be ordered to do the needful after registering the case against the accused Shyam Mehrotra, Ramji Mehrotra, Kamla Mehrotra and Geeta Mehrotra. Thus, in substance, the complainant related the bickering at her matrimonial home which made her life miserable in several ways and compelled her to leave her in-law’s place in order to live with her father where she lodged a police case as stated hereinbefore.
8. On the basis of the complaint, the investigating authorities at P.S. Daraganj, Allahabad started investigation of the case and thereafter the police submitted chargesheet against the appellants and other family members of the complainant’s husband.
9. Hence, the appellants who are sister and brother of the complainant’s husband filed petition under Section 482 Cr.P.C. for quashing of the chargesheet and the entire proceedings pending in the court of learned Judicial Magistrate, Court No.IV,
Allahabad, inter-alia, on the ground that FIR has been lodged with mala fide intentions to harass the appellants and that no case was made out against the appellants as well as other family members. But the principal ground of challenge to the FIR was that the incident although was alleged to have taken place at Faridabad and the investigation should have been done
there only, the complainant with mala fide intention in connivance with the father of the complainant, got the investigating officer to record the statements by visiting Ghaziabad which was beyond his territorial jurisdiction and cannot be construed as legal and proper investigation. It was also alleged that the father of the complainant got the arrest warrant issued through
George Town Police Station, Allahabad, in spite of the cause of action having arisen at Allahabad.
10. This appeal has been preferred by Kumari Geeta Mehrotra i.e. the sister of the complainant’s husband and Ramji Mehrotra i.e. the elder brother of the complainant’s husband assailing the order of the High Court and it was submitted that the Hon’ble High Court ought to have appreciated that the complainant who had already obtained an ex-parte decree of divorce, is pursuing the present case through her father with the sole purpose to unnecessarily harass the appellants to extract money from them as all efforts of mediation had failed.
11. However, the grounds of challenge before this Court to the order of the High Court, inter alia is that the High Court had failed to appreciate that the investigation had been done by the authority without following due process of law which also lacked territorial jurisdiction. The relevant documents/parcha diary for deciding the territorial jurisdiction had been overlooked
as the FIR has been lodged at Allahabad although the cause of action of the entire incident is alleged to have taken place at Faridabad (Haryana). It was, therefore, submitted that the investigating authorities of the Allahabad have traversed beyond the territorial limits which is clearly an abuse of the process of law and the High Court has failed to exercise its inherent powers
under Section 482 Cr.P.C. in the facts and circumstances of this case and allowed the proceedings to go on before the trial court although it had no jurisdiction to adjudicate the same.
12. It was further averred that the High Court had failed to examine the facts of the FIR to see whether the facts stated in the FIR constitute any prima facie case making out an offence against the sister-inlaw and brother-in-law of the complainant and whether there was at all any material to constitute an offence against the appellants and their family members.
Attention of this Court was further invited to the contradictions in the statement of the complainant and her father which indicate material contradictions indicating that the complainant and her father have concocted the story to implicate the appellants as well as all their family members in a criminal case merely with a mala fide intention to settle her scores and
extract money from the family of her ex-husband Shyamji Mehrotra and his family members.
13. On a perusal of the complaint and other materials on record as also analysis of the arguments advanced by the contesting parties in the light of the settled principles of law reflected in a catena of decisions, it is apparent that the High Court has not
applied its mind on the question as to whether the case was fit to be quashed against the appellants and has merely disposed of the petition granting liberty to the appellants to move the trial court and raise contentions on the ground as to whether it has
territorial jurisdiction to continue with the trial in the light of the averment that no part of the cause of action had arisen at Allahabad and the entire incident even as per the FIR had taken place at Faridabad.
14. The High Court further overlooked the fact that during the pendency of this case, the complainantrespondent No.2 has obtained an ex-parte decree of divorce against her husband Shyamji Mehrotra and the High Court failed to apply its mind whether any case could be held to have been made out against Kumari Geeta Mehrotra and Ramji Mehrotra, who are the
unmarried sister and elder brother of the complainant’s ex-husband. Facts of the FIR even as it stands indicate that although a prima facie case against the husband Shyamji Mehrotra and some other accused persons may or may not be constituted, it surely appears to be a case where no ingredients making out a case against the unmarried sister of the accused Shyamji Mehrotra and his brother Ramji Mehrotra appear to be existing for even when the complainant came to her in-law’s house after her wedding, she has alleged physical and mental torture by stating in general that she had been ordered to do household activities of cooking meals for the whole family. But there appears to be no specific allegation against the sister and brother of the complainant’s husband as to how they could be implicated into the mutual bickering between the complainant and her husband Shyamji Mehrotra including his parents.

15. Under the facts and circumstance of similar nature in the case of Ramesh vs. State of Tamil Nadu reported in (2005) SCC (Crl.) 735 at 738 allegations were made in a complaint against the husband, the in-laws, husband’s brother and sister who were all the petitioners before the High Court wherein after registration of the F.I.R. and investigation, the charge sheet was filed by the Inspector of Police in the court of Judicial Magistrate III, Trichy. Thereupon, the learned magistrate took cognizance of the offence and issued warrants against the appellants on 13.2.2002. Four of the accused-appellants were arrested and released on bail by the magistrate at Mumbai. The appellants had filed petition under Section 482, Cr.P.C. before the Madras High Court for quashing the proceedings in complaint case on the file of the Judicial Magistrate III, Trichy. The High Court by the impugned order dismissed the petition observing that the grounds raised by the petitioners were all subject matters to be heard by the trial court for better appreciation after conducting full trial as the High Court was of the view that it was only desirable to dismiss the criminal original petition and the same was also dismissed.

However, the High Court had directed the Magistrate to dispense with the personal attendance of the appellants.

16. Aggrieved by the order of the Madras High Court dismissing the petition under Section 482 Cr.P.C., the special leave petition was filed in this Court giving rise to the appeals therein where threefold contentions were raised viz., (i) that the allegations are frivolous and without any basis; (ii) even according to the FIR, no incriminating acts were done within the
jurisdiction of Trichy Police Station and the court at Trichy and, therefore, the learned magistrate lacked territorial jurisdiction to take cognizance of the offence and (iii) taking cognizance of the alleged offence at that stage was barred under Section 468(1) Cr.P.C. as it was beyond the period of limitation prescribed under Section 468(2) Cr.P.C. Apart from the subsequent two
contentions, it was urged that the allegations under the FIR do not make out any offence of which cognizance could be taken.
17. Their Lordships of the Supreme Court in this matter had been pleased to hold that the bald allegations made against the sister in law by the complainant appeared to suggest the anxiety of the informant to rope in as many of the husband’s relatives
as possible. It was held that neither the FIR nor the charge sheet furnished the legal basis for the magistrate to take cognizance of the offences alleged against the appellants. The learned Judges were pleased to hold that looking to the allegations in the
FIR and the contents of the charge sheet, none of the alleged offences under Section 498 A, 406 and Section 4 of the Dowry Prohibition Act were made against the married sister of the complainant’s husband who was undisputedly not living with the family of the complainant’s husband. Their Lordships of the Supreme Court were pleased to hold that the High Court ought not to have relegated the sister in law to the ordeal of trial. Accordingly, the proceedings against the appellants were quashed and the appeal was allowed.
18. In so far as the plea of territorial jurisdiction is concerned, it is no doubt true that the High Court was correct to the extent that the question of territorial jurisdiction could be decided by the trial court itself. But this ground was just one of the grounds to quash the proceedings initiated against the appellants under Section 482 Cr.P.C. wherein it was also alleged that no
prima facie case was made out against the appellants for initiating the proceedings under the Dowry Prohibition Act and other provisions of the IPC. The High Court has failed to exercise its jurisdiction in so far as the consideration of the case of the appellants are concerned, who are only brother and sister of the complainant’s husband and are not alleged even by the
complainant to have demanded dowry from her. The High Court, therefore, ought to have considered that even if the trial court at Allahabad had the jurisdiction to hold the trial, the question still remained as to whether the trial against the brother and sister of the husband was fit to be continued and whether that would amount to abuse of the process of the court.
19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.
20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported  in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:

“there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that
the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.”
The view taken by the judges in this matter was that the courts would not encourage such disputes.
21. In yet another case reported in AIR 2003 SC 1386 in the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr. it was observed that there is no doubt that the object of introducing Chapter XXA containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view
to punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful demands of dowry. But if the proceedings are initiated by the wife under Section 498A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court would not be proper as it would prevent woman from settling earlier. Thus for the purpose of securing the ends of justice quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however be a different matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power.
22. In the instant matter, when the complainant and her husband are divorced as the complainant-wife secured an ex-parte decree of divorce, the same could have weighed with the High Court to consider whether proceeding initiated prior to the divorce decree was fit to be pursued in spite of absence of specific allegations at least against the brother and sister of the
complainant’s husband and whether continuing with this proceeding could not have amounted to abuse of the process of the court. The High Court, however, seems not to have examined these aspects carefully and have thus side-tracked all these considerations merely on the ground that the territorial jurisdiction could be raised only before the magistrate conducting
the trial.
23. In the instant case, the question of territorial jurisdiction was just one of the grounds for quashing the proceedings along with the other grounds and, therefore, the High Court should have examined whether the prosecution case was fit to be quashed on other grounds or not. At this stage, the question also crops up whether the matter is fit to be remanded to the
High Court to consider all these aspects. But in matters arising out of a criminal case, fresh consideration by remanding the same would further result into a protracted and vexatious proceeding which is unwarranted as was held by this Court in the case of Ramesh vs. State of Tamil Nadu (supra) that such a course of remand would be unnecessary and inexpedient as there was no need to prolong the controversy. The facts in this matter on this aspect was although somewhat different since the complainant had lodged the complaint after seven years of delay, yet in the instant matter the factual position remains that the complaint as it stands lacks ingredients constituting the offence under Section 498A and Section 3/4 Dowry Prohibition Act against the appellants who are sister and brother of the complainant’s husband and their involvement in the whole incident appears only by way of a casual inclusion of their names.

Hence, it cannot be overlooked that it would be total abuse of the process of law if we were to remand the matter to the High Court to consider whether there were still any material to hold that the trial should proceed against them in spite of absence of prima facie material constituting the offence alleged against them.
24. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of
course the FIR discloses specific allegations which would persuade the court to take cognisance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose
the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the
FIR prima facie discloses a case of over-implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.
25. In the case at hand, when the brother and unmarried sister of the principal accused Shyamji Mehrotra approached the High Court for quashing the proceedings against them, inter-alia, on the ground of lack of territorial jurisdiction as also on the ground that no case was made out against them under Sections 498A,/323/504/506 including Sections 3/4 of the Dowry Prohibition Act, it was the legal duty of the High Court to examine whether there were prima facie material against the appellants so that they could be directed to undergo the trial, besides the question of territorial jurisdiction. The High Court seems to have overlooked all the pleas that were raised and rejected the petition on the solitary ground of territorial jurisdiction giving liberty to the appellants to approach the trial court.
26. The High Court in our considered opinion appear to have missed that assuming the trial court had territorial jurisdiction, it was still left to be decided whether it was a fit case to send the appellants for trial when the FIR failed to make out a prima facie case against them regarding the allegation of inflicting physical and mental torture to the complainant demanding dowry from the complainant. Since the High Court has failed to consider all these aspects, this Court as already stated hereinbefore, could have remitted the matter to the High Court to consider whether a case was made out against the appellants to proceed against them. But as the contents of the FIR does not disclose specific allegation against the brother and sister of the complainant’s husband except casual reference of their names, it would not be just to direct them to go through protracted procedure by remanding for consideration of the matter all over again by the High Court and make the unmarried sister of the main accused and his elder brother to suffer the ordeal of a criminal case pending against them specially when the FIR does not disclose ingredients of offence under Sections 498A/323/504/506, IPC and Sections 3/4 of the Dowry Prohibition Act.
27. We, therefore, deem it just and legally appropriate to quash the proceedings initiated against the appellants Geeta Mehrotra and Ramji Mehrotra as the FIR does not disclose any material which could be held to be constituting any offence against these two appellants. Merely by making a general allegation that they were also involved in physical and mental torture of the complainant-respondent No.2 without mentioning even a single incident against them as also the fact as to how they could be motivated to demand dowry when they are only related as brother and sister of the complainant’s husband, we are pleased to quash and set aside the criminal proceedings in so far as these appellants are concerned and consequently the
order passed by the High Court shall stand overruled.

The appeal accordingly is allowed.
……………………………J
(T.S. Thakur)
……………………………J
(Gyan Sudha Misra)
New Delhi,
October 17, 2012

IPC 498a Quashed-No Territorial Jurisdiction

October 4, 2011 Leave a comment

Jharkhand High Court

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr.M.P.No.621 of 2007

Md. Naushad Alam. Petitioner

-Versus-

1. The State of Jharkhand.

2. Shabina Begum. Opp. Parties

————-

CORAM: THE HON’BLE MR. JUSTICE D.K.SINHA

For the petitioner: Mr. Jitendra Nath & Sandhya Sahay, Advocates.

For the State: A.P.P.

For the O.P.No.2: Mr. Arvind Kumar Choudhary, Advocate. ————-

C.A.V. on 25.03.2011 : Pronounced on 25.04.2011 ————-

D.K.Sinha,J. The petitioner has invoked the inherent jurisdiction of this Court under Section 482 Code of Criminal Procedure for the quashment of the order dated 22.03.2007 passed by the S.D.J.M., Madhupur at Deoghar in P.C.R. No. 399 of 2006 by which cognizance of the offence was taken against him under Section 498A of the Indian Penal Code.

2. The prosecution story in short was that the complainant-O.P.No.2 claimed to be the wife of petitioner-Naushad Alam, pursuant to a “Nikah” which was performed on 23.04.2002 and after consummation of their marriage two children were born to them, one of them was son and another was daughter. For the last three years, the Complainant O.P.No.2 alleged that the petitioner husband demanded Hero Honda motorcycle to be brought from her parental home and in this connection he subjected her to mental and physical cruelty. The matter was informed to her father, who came to the house of the petitioner who tried to pacify the matter and requested him to keep and maintain his daughter peacefully and then he returned back. The accused then became more violent after the return of the father on the complainant as a result of which she fell ill and no treatment was extended. Her father came and provided medical aid. It was alleged that on 17.06.2006 all the accused persons retained all her jewelleries and the husband petitioner Md. Naushad Alam took her to Madhupur with her two children and left all of them at the Madhupur Railway Station uncared with the caution that she would be killed if she would return without fulfilling his demand. All pursuasion made by her father failed for “Rukshadi” of his daughter to her matrimonial home and then he wrote letters to the Secretary, President and other Members of Anjuman Committee, Sitala narrating the miseries of his daughter but of no avail. However, it was alleged that on the given date and time of occurrence the accused persons came to the parental home of the complainant at Panhaiyatola and threatened in clear words that the complainant would be accepted only on fulfillment of their demand and returned back. It was further alleged that the petitioner husband extended threat that the complainant and his father would be implicated in false cases by registering it in different States.

2 Lastly on 25.09.2006 the complainant went to the Police Station to lodge a case which was not accepted and only then the complaint case for the alleged offence under Sections 323/379/498A/406 of the Indian Penal Code against three named accused persons but the cognizance of the offence was taken only against the petitioner husband Md. Naushad Alam for the offence under Section 498A of the Indian Penal Code.

3. Learned Counsel Mr. Jitendra Nath assailed the impugned order by which cognizance of the offence was taken under Section 498A of the Indian Penal Code against the husband-petitioner on the sole ground that no part of the alleged occurrence took place within the territorial jurisdiction of S.D.J.M., Madhupur at Deoghar and therefore, the cognizance of the offence was barred by territorial jurisdiction under Section 177 Code of Criminal Procedure as the S.D.J.M., Madhupur at Deoghar was not within his competence to do so. As a matter of fact, the occurrence did not take place in the manner presented by the complainant rather the petitioner-husband consistently visited her parental home to take her back to his home and on 25.06.2006 he was not allowed even to meet his wife and was asked to come along with 5 other persons for her “Rukshadi”, the learned Counsel added. The petitioner-husband was apprehensive that he might be implicated in any false case, he, as such, filed an Informatory Petition in the Court of the Chief Judicial Magistrate, Giridih vide Misc. Application No.1897 of 2006 on 05.09.2006 stating all the relevant facts and informed the C.J.M., Giridih that there was chance of his false implication in any criminal case at the instance of his wife Sabina Begam and her father and requested to keep the informatory in the record for future use.

4. Learned Counsel further submitted that the petitioners sent a legal notice (Annexure-2) to his father-in-law Md. Fariuddin asking him to send his wife Sabina Begam and children failing to which it was cautioned that legal action would be taken. The petitioner-husband then filed a Title (Matrimonial) Suit No. 163 of 2006 before the Principal Judge, Family Court, Giridih under Section 281 of the Mohammadan law for restitution of conjugal rights which was admitted and notice was issued to the complainant-wife. The other allegations for the offence under Sections 379/323 and 406 of the Indian Penal Code were disbelieved by the learned S.D.J.M., Madhupur at Deoghar and the cognizance of the offence was taken only under Section 498A of the Indian Penal Code against the husband and other two accused were exonerated, in that manner, the major part of the allegations was disbelieved by the S.D.J.M.

5. On the point of territorial jurisdiction of the Court under Section 177 Cr.P.C. the learned Counsel submitted that the complainant-O.P.No.2 admitted in her statements recorded on solemn affirmation that her husband was living mostly at Patna by doing preparations for competitive examination and during their stay together for 5 years after the marriage, no complaint was made or  cruelty was ever extended but it was raised only when she was taken away by her father on his instigation. It would be evident from the Complaint Petition that the entire occurrence took place at her Matrimonial Home at village Sitala P.S. Gande within the territorial jurisdiction of the Court of Giridih but the complaint was filed before the S.D.J.M., Madupur at Deoghar, who had no jurisdiction to take cognizance.

6. Finally, the learned Counsel submitted that it would be relevant that in her statements recorded on solemn affirmation on 26.09.2006 she admitted that the entire allegation of torture or demand of dowry in kind of motorcycle took place at her Matrimonial Home and further admitted that her husband/petitioner took her to Madhupur in the month of June, 2006 but without any overtact. No part of cruelty in terms of Section 498A of the Indian Penal Code was extended to the complainant by the husband-petitioner so as to bring the case within the territorial jurisdiction of Madhupur Court within the district of Deoghar.

7. Learned Counsel Mr. Arvind Kumar Choudhary appearing for the O.P.No.2 submitted that the complainant in her Complaint Petition as contained in paragraph no.9 clearly stated that all the accused persons including the petitioner came to her father’s house at Panhaiyakola, Madhupur and warned in clear words that they would accept the complainant only when their demand would be fulfilled and then they left the place and therefore, the part of the occurrence took place at Panhaiyakola within the jurisdiction of Madhupur Court.

8. Having regard to the facts and circumstances of the case, argument advanced on behalf of the parties, I find that the facts contained in paragraph no.9 of the complaint case whereby it was shown that the part of the occurrence took place at Panhaikola when the accused persons went there and warned the complainant and father, as referred to hereinbefore could not be substantiated in the statements of the complainant on her solemn affirmation, recorded by the S.D.J.M. The complicity of the other accused persons for the alleged offence was disbelieved by the Court after enquiry and the cognizance of the offence as such under Section 498A of the Indian Penal Code was taken only against the husband petitioner. I find that the learned Counsel appearing on behalf of the complainant-O.P.No.2 failed to show that any part of the alleged occurrence for the offence under Section 498A of the Indian Penal Code was committed by the petitioner within the territorial jurisdiction of Madhupur Court and therefore, the impugned order by which cognizance was taken by the S.D.J.M., Madhupur was barred by jurisdiction as the Court was not within his competence to take cognizance of the offence which took place outside within the district of Giridih where the matrimonial home of the complainant was situated.

9. In Bhura Ram and Ors. Vrs. State of Rajasthan & Anr, reported in 2008 (3) JLJR S.C. 287, the Apex Court held,

“The facts stated in the complaint disclose that the complainant left the place where she was residing with her husband and in-laws and came to the city of Sri Ganganagar, State of Rajasthan and that all the alleged acts as per the complaint had taken place in the State of Punjab. The Court at Rajasthan does not have the jurisdiction to deal with the matter. On the basis of the factual scenario disclosed by the complainant in the complaint, the inevitable 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. As a consequence thereof, the proceedings before the Additional Chief Judicial Magistrate, Sri Ganganagar are quashed. The complaint be returned to the complainant and if she so wishes she may file the same in the appropriate court to be dealt with in accordance with law.”

10. In the facts and circumstances, relying upon the proposition of law referred to here-in-before I find it to be a fit case for invoking the inherent jurisdiction of the Court for quashment of the order impugned by which cognizance of the offence was taken by the S.D.J.M., Madhupur at Deoghar as the same is barred by territorial jurisdiction. Accordingly, the cognizance of the offence under Section 498A of the Indian Penal Code against the petitioner is quashed. The complaint is directed to be returned to the Complainant O.P.No.2 with the liberty to file a fresh complaint if she so liked before the appropriate Court to be dealt with in accordance with law.

11. With this observation, this petition is allowed.

[D.K.Sinha,J.]

P.K.S./A.F.R.

Categories: Under Jurisdiction Tags:

Supreme Court-IPC 498A Quashed-Territorial Jurisdiction

October 4, 2011 Leave a comment
Bhura Ram v. State of Rajasthan
(P.P. Naolekar & V.S. Sirpurkar, JJ.)
Bhura Ram and Ors. —————- Petitioner(s)
v.
State of Rajasthan & Anr. ———— Respondent(s)
Criminal Appeal No. 587 of 2008, decided on April 2, 2008
NON-REPORTABLE
[arising out of Special Leave Petition (Crl.) No. 79 of 2006)
The judgement of the Court was delivered by
P.P. Naolekar, J.
1. Leave granted.
2. The complainant Rajeshwari lodged a complaint on 4.9.2001 before the learned Additional Chief Judicial Magistrate,Sri Ganganagar against the appellants. The complaint under Section 156(3) of the Code of Criminal Procedure was sent to the Police Station, Sadar Sri Ganganagar for investigation on which FIR No. 246 of 2001 was registered against the appellants for offences under Sections 498A, 406 and 147 of the Indian Penal Code (IPC). Challan was filed against the appellants in the Court of learned Additional Chief Judicial Magistrate, Sri Ganga Nagar. The charges were framed against the appellants for offences under Sections 498A and 406 IPC. The appellants made a prayer before the Court that the Court of Additional Chief Judicial Magistrate had no jurisdiction to try the offences as the cause of action accrued within the jurisdiction of the other court. The application was rejected. The Revision Petition before the learned Sessions
Judge, Sri Ganganagar was also rejected. The High Court dismissed the S.B. Criminal Miscellaneous Petition preferred by the appellants holding that although the marriage was solemnized at Village Ramsara, Tehsil Abohar, District Ferozpur, and right from the marriage, the complainant and her husband Ravindra Kumar were living in Punjab with her in-laws and her husband had died, and that she is now residing in Sri Ganganagar District in Rajasthan along with her maternal relations, but still offence under Section 498A IPC, being a continuing one, the complaint cannot be dismissed
on the ground that it was time barred; and that the offence of cruelty being a continuing offence is still continuing with the local area of Rajasthan, where at present the complainant is living and, therefore, the Additional Chief Judicial
Magistrate, Sri Ganganagar had jurisdiction to try the case. The Court has found that all the allegations regarding the offences charged with have been committed at the previous residence of the complainant.
3. 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 vs. Inspector of Police, Chennai and Another, (2004) 8 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.
4. The facts stated in the complaint disclose that the complainant left the place where she was residing with her husband and in-laws and came to the city of Sri Ganganagar, State of Rajasthan and that all the alleged acts as per the complaint had taken place in the State of Punjab. The Court at Rajasthan does not have the jurisdiction to deal with the matter. On the basis of the factual scenario disclosed by the complainant in the complaint, the inevitable 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.
As a consequence thereof, the proceedings before the Additional Chief Judicial Magistrate, Sri Ganganagar are quashed. The complaint be returned to the complainant and if she so wishes she may file the same in the appropriate court to be dealt with in accordance with law.
5. The appeal is accordingly allowed.
Categories: Under Jurisdiction Tags:

Ranchi HC-IPC 498A Quashed-Territorial Jurisdiction

October 4, 2011 Leave a comment

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. M. P. No.223 of 2007

Sraban Kumar Agarwala & Ors. ……Petitioners.

-VersusThe State of Jharkhand & Anr. ..…..Opposite Parties.

——

CORAM : HON’BLE MR. JUSTICE NARENDRA NATH TIWARI

——

For the Petitioners : Mr. T. R. Bajaj, Sr. Advocate.

For the State : A.P.P.

For O.P. No.2 : Mr. R. S. Mazumdar, Advocate.

——

11/12.08.2009:

1. In this petition, the petitioners have prayed for quashing the order dated 22nd May, 2006 passed by learned Sub Divisional Judicial Magistrate, Rajmahal, Sahibganj in P.C.R. Case no.127 of 2006, whereby cognizance of the offence under Section 498A of the Indian Penal Code has been taken against the petitioners.

2. Learned counsel for the petitioners assailed the impugned order on the ground of want of territorial jurisdiction of the court below. It has been submitted that from the plain reading of the complaint petition it is evident that the entire allegations are related to the place at Murshidabad in the State of West Bengal.  There is no allegation of commission of any act within the territorial jurisdiction of the learned court below. It has been submitted that in the case of Bhura Ram & Ors. Vs. State of Rajasthan & Anr., reported in AIR 2008 SC 2666, Hon’ble Supreme Court has held that in a complaint under Section 498A of the Indian Penal Code if the alleged acts were of the place falling within another State, a complaint cannot be entertained in the court of another State. In the said case, the complaint was related to the place, falling within the State of Punjab, while the complaint case under Section 498A of the Indian Penal Code was filed in the State of Rajasthan. The Supreme Court has held that since no cause of action arose in the State of Rajasthan, the Court of that State had no jurisdiction to deal with the said case.

3. Mr. T. R. Bajaj, learned senior counsel, appearing on behalf  of the petitioners, submitted that in the instant case, all the  alleged acts are of the place at Murshidabad in the State of  West Bengal and there is no allegation of commission of any act  or any act, constituting   offence   under   Section   498A  of the Indian  Penal  Code,  at the place within State of Jharkhand and as such learned Sub Divisional Judicial Magistrate, Rajmahal, Sahibganj has no jurisdiction to take cognizance of the offence  under Section 498A of the Indian Penal Code against the  petitioners. The impugned order is, thus, without jurisdiction and is liable to be quashed.

4. Mr. R. S. Mazumdar, learned counsel, appearing on behalf of the complainant-Opposite Party no.2, has not disputed the said legal position. He has fairly accepted that the case is covered by the decision of the Supreme Court in Bhura Ram & Ors. (Supra), as the allegations do not show any cause of action arising in the State of Jharkhand.

5. In view of the above admitted legal and factual position, this petition is allowed. The order taking cognizance dated 22nd May, 2006 passed by learned Sub Divisional Judicial Magistrate, Rajmahal, Sahibganj in P.C.R. Case no.127 of 2006 is quashed.

6. It is made clear that this order shall not in any way impede the complainant-Opposite Party no.2 to file any such complaint in the court of competent jurisdiction.

(Narendra Nath Tiwari, J.)

Categories: Under Jurisdiction

Supreme Court-IPC 498A/406 Quashed-No cause of action in Chennai

October 4, 2011 Leave a comment

Supreme Court of India

Bench: A Pasayat, C Thakker

CASE NO.:

Appeal (crl.) 904 of 2004

PETITIONER:

Y. Abraham Ajith & Ors.

RESPONDENT:

Inspector of Police, Chennai & Anr.

DATE OF JUDGMENT: 17/08/2004

BENCH:

ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT:

J U D G M E N T

(Arising out of SLP(Crl.)No. 4573/2003)

ARIJIT PASAYAT, J.

Leave granted.

Appellants call in question legality of the judgment rendered by a learned Single Judge of the Madras High Court whereby the appellants’ prayer for quashing proceedings in CC 3532 of 2001 on the file of the Court of XVIII Metropolitan Magistrate Saidapet, Chennai, by exercise of powers under Section 482 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) was rejected. Background facts sans unnecessary details are as follows :

Respondent no.2 as complainant filed complaint in the Court of the concerned magistrate alleging commission of offences punishable under Sections 498A and 406 of the Indian Penal Code, 1860 (in short the ‘IPC’) and Section 4 of the Dowry Prohibition Act, 1961 ( in short the ‘Dowry Act’). The magistrate directed the police to investigate and after investigation charge-sheet was filed by the police. When the matter stood thus, the appellants filed an application under Section 482 of the Code before the High Court alleging that the concerned magistrate has no jurisdiction even to entertain the complaint even if the allegations contained therein are accepted in toto. According to them, no part of the cause of action arose within the jurisdiction of the concerned Court. The complaint itself disclosed that after 15.4.1997, the respondent left Nagercoil and came to Chennai and was staying there. All the allegations which are per se without any basis took place according to the complainant at Nagercoil, and therefore, the Courts at Chennai did not have the jurisdiction to deal with the matter. It was further submitted that earlier a complaint was lodged by the complainant before the concerned police officials having jurisdiction; but after inquiry no action was deemed necessary.

In response, learned counsel submitted that some of the offences were continuing offences. The appellant no.1 had initiated proceedings for judicial separation, the notice for which was received by her at Chennai and, therefore, the cause of action existed.

The High Court unfortunately did not consider rival stands and even did not record any finding on the question of law raised regarding lack of jurisdiction. It felt that legal parameters were to be considered after a thorough trial after due opportunity to the parties and, therefore, the factual points raised by parties were not to be adjudicated under Section 484 of the Code.

In support of the appeal Mr. T.L. Viswanatha Iyer, learned senior counsel, submitted that the approach of the High Court is clearly erroneous. A bare reading of the complaint would go to show that no part of the cause of action arose within the jurisdiction of the Court where the complaint was filed. Therefore, the entire proceedings had no foundation.

In response, learned counsel for respondent no.2-complainant submitted that the offences were continuing in terms of Section 178(c) of the Code, and therefore The Court had the jurisdiction to deal with the matter.

Section 177 of the Code deals with the ordinary place of inquiry and trial, and reads as follows:

“Section 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.”

Sections 177 to 186 deal with venue and place of trial. Section 177 reiterates the well-established common law rule referred to in Halsbury’s Laws of England (Vol. IX para 83) that the proper and ordinary venue for the trial of a crime is the area of jurisdiction in which, on the evidence, the facts occur and which alleged to constitute the crime. There are several exceptions to this general rule and some of them are, so far as the present case is concerned, indicated in Section 178 of the Code which read as follows:

“Section 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 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.”

“All crime is local, the jurisdiction over the crime belongs to the country where the crime is committed”, as observed by Blackstone. A significant word used in Section 177 of the Code is “ordinarily”. Use of the word indicates that the provision is a general one and must be read subject to the special provisions contained in the Code. As observed by the Court in Purushottamdas Dalmia v. State of West Bengal (AIR 1961 SC 1589), L.N.Mukherjee V. State of Madras (AIR 1961 SC 1601), Banwarilal Jhunjhunwalla and Ors. v. Union of India and Anr. (AIR 1963 SC 1620) andMohan Baitha and Ors. v. State of Bihar and Anr. (2001 (4) SCC 350), exception implied by the word “ordinarily” need not be limited to those specially provided for by the law and exceptions may be provided by law on consideration or may be implied from the provisions of law permitting joint trial of offences by the same Court. No such exception is applicable to the case at hand.

As observed by this Court in State of Bihar v. Deokaran Nenshi and Anr. (AIR 1973 SC 908), 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 a penalty, liability continues till compliance, that on every occasion such disobedience or non-compliance occurs or recurs, there is the offence committed.

A similar plea relating to continuance of the offence was examined by this Court in Sujata Mukherjee (Smt.) v. Prashant Kumar Mukherjee (1997 (5) SCC 30). There the allegations related to commission of alleged offences punishable under Section 498A, 506 and 323 IPC. On the factual background, it was noted that though the dowry demands were made earlier the husband of the complainant went to the place where complainant was residing and had assaulted her. This Court held in that factual background that clause (c) of Section 178 was attracted. But in the present case the factual position is different and the complainant herself left the house of the husband on 15.4.1997 on account of alleged dowry demands by the husband and his relations. There is thereafter not even a whisper of allegations about any demand of dowry or commission of any act constituting an offence much less at Chennai. That being so, the logic of Section 178 (c) of the Code relating to continuance of the offences cannot be applied.

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.

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.

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.

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 necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in “cause of action”.

The expression “cause of action” has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts.

The expression “cause of action” is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases for sitting; a factual situation that entitles one person to obtain a remedy in court from another person. (Black’s Law Dictionary a “cause of action” is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In “Words and Phrases” (4th Edn.) the meaning attributed to the phrase “cause of action” in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf.

In Halsbury Laws of England (Fourth Edition) it has been stated as follows:

“Cause 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 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, not merely the technical cause of action”.

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 concerned magistrate 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.

Categories: Under Jurisdiction Tags:

Madras HC: IPC 498A/406/DP4 Quashed -No Jurisdiction

October 4, 2011 Leave a comment

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 20.08.2008

CORAM

THE HONOURABLE MR. JUSTICE K.N. BASHA

Crl.O.P.No.18774 of 2005

& Crl.M.P.No.5527 of 2005

1. Balchand & Poonam Chand Chhaparwal

2. Chanda Devi Chhaparwal

3. Krishna Jhanwar

4. Gopal Chhaparwal .. Petitioners/Accused

Vs.

1. State rep. by

Inspector of Police,

All Women Police Station (C),

Coimbatore City. .. Respondent/Complainant

2. Kanchan @ Kanchan Devi .. Respondent

Impleaded as per the order of

this Court dated 3.2.2007 in

M.P.No.93 of 2007

* * *

Prayer : Criminal Original Petition filed under section 482 of Cr.P.C. to call for the records relating to C.C.No.1202 of 2005 on the file of the Judicial Magistrate No.III, Coimbatore, and quash the same. * * *

For Petitioners : Mr.S.Ashok Kumar, SC

for M/s.Giridhar Associates

For Respondent-1 : Mr.Babu Muthu Meeran

Additional Public Prosecutor

For Respondent-2 : Mr.M.Subramani

O R D E R

The petitioners have come forward with this petition seeking for the relief of quashing the proceedings initiated against them in C.C.No.1202 of 2005 on the file of the learned Judicial Magistrate No.III, Coimbatore, for the offences under Sections 498-A and 406 IPC and under Section 4 of Dowry Prohibition Act.

2. Mr.S.Ashok Kumar, learned senior counsel for the petitioners mainly contended that the entire allegations contained in the complaint and other materials available on record clearly shows that the petitioners said to have committed the offences only at Burhanpur, Madhya Pradesh State and no cause of action arises within the State of Tamil Nadu and as such the learned Judicial Magistrate No.III, Coimbatore, ought not to have taken cognizance of the case and the entire proceedings is liable to be quashed on the ground of lack of jurisdiction. In support of his contention, the learned senior counsel for the petitioners placed reliance on the following decisions of the Hon’ble Apex Court : (1)Ramesh V. State of T.N. reported in (2005) 3 SCC 507 ; and

(2)Manish Ratan v. State of M.P. reported in (2007) 1 SCC 262 ;

3. Per contra, learned counsel for the defacto complainant, who has impleaded as second respondent, contended that a complaint was preferred before the Madhya Pradesh State police and on the basis of the compromise, action was dropped. It is further submitted that thereafter the second respondent/defacto complainant came back to her parental house and again the petitioners/accused said to have caused cruelty to the defacto complainant by contacting over the phone. It is submitted even assuming that the offence was alleged to have taken place at Madhya Pradesh the proceedings are not liable to be quashed and on the other hand, the case may be transferred to the competent Court at Madhya Pradesh. The learned counsel for the defacto complainant placed reliance on the decision of the Hon’ble Apex Court in State of M.P. V. Suresh Kaushal reported in (2003) 11 SCC 126 in support of his contention.

4. The learned Additional Public Prosecutor fairly submitted that as per the materials available on record the petitioners alleged to have committed the offences within the jurisdiction of Madhya Pradesh Court as the allegation levelled against the petitioners shows that the defacto complainant was subjected to cruelty while she was residing at Madhya Pradesh. The learned Additional Public Prosecutor submitted that the defacto complainant is entitled to initiate proceedings before the concerned competent Court at Madhya Pradesh.

5. I have carefully considered the rival contentions put forward by either side and also perused the materials available on record including the complaint and the charge sheet and other statements of witnesses recorded under Section 161 Cr.P.C.

6. The undisputed fact remains that the defacto complainant was residing along with her husband namely, the first accused at Burhanpur, Madhya Pradesh State and the perusal of the entire materials available on record clearly discloses that the defacto complainant, the second respondent was subjected to cruelty only while she was residing at Madhya Pradesh State. Therefore, it is crystal clear that only Madhya Pradesh Court is having jurisdiction to entertain the case.

7. The learned senior counsel rightly placed reliance on the decision of the Hon’ble Apex Court inRamesh V. State of T.N. reported in (2005) 3 SCC 507. The Hon’ble Apex Court has held in that decision that, “10. The next controversy arising in the case is about the territorial jurisdiction of the Magistrate’s Court at Tiruchirapalli to try the cases. As already noted, the High Court was of the view that the questions raised in the petition cannot be decided before trial. It is contended by the learned counsel for the appellants that the issue relating to the place of trial can be decided even at this stage without going beyond the averments in the complaint filed by the respondents and the High Court should have, therefore, decided this point of jurisdiction, when it is raised before the trial has commenced. Our attention has been drawn to a recent decision of this Court in Y.Abraham Ajith V. Inspector of Police [(2004) SCC (Cri.) 2134]. In that case, the Madras High Court refused to interfere under Section 482 CrPC when the issue of territorial jurisdiction of the Magistrate concerned to take cognizance of the offence was raised. This Court did not endorse the approach of the High Court for not recording the finding on the question of jurisdiction. On reading the allegations in the complaint, the Court came to the conclusion that no part of the cause of action arose in Chennai and therefore the Metropolitan Magistrate at Chennai could not have taken cognizance and issued summons. On this ground, the criminal proceedings were quashed and the complaint was directed to be returned to the respondent who was given liberty to file the same in an appropriate court. That was also a case of complaint for an offence under Sections 498-A and 406 IPC filed by the wife against the appellant therein.

11. In the view we are taking, it is not necessary for us to delve into the question of territorial jurisdiction of the Court at Trichy in detail. Suffice it to say that on looking at the complaint as its face value, the offences alleged cannot be said to have been committed wholly or partly within the local jurisdiction of the Magistrate’s Court at Trichy. Prima facie, none of the ingredients constituting the offence can be said to have occurred within the local jurisdiction of that court. Almost all the allegations pertain to acts of cruelty for the purpose of extracting additional property as dowry while she was in the matrimonial home at Mumbai and the alleged acts of misappropriation of her movable property at Mumbai. However, there is one allegation relevant to Section 498-A from which it could be inferred that one of the acts giving rise to the offence under the said section had taken place in Chennai. It is alleged that when the relations of the informant met her in-laws at a hotel in Chennai where they were staying on 13-10-1998, there was again a demand for dowry and a threat to torture her in case she was sent back to Mumbai without the money and articles demanded.

12. Thus the alleged acts which according to the petitioner constitute the offences under Sections 498-A and 406 were done by the accused mostly in Mumbai and partly in Chennai. Prima facie, there is nothing in the entire complaint which goes to show that any acts constituting the alleged offences were at all committed at Trichy.”

8. In the above said decision, the Hon’ble Apex Court ultimately transferred the case from Trichy to Chennai holding that part of cause of action arises at Chennai. In yet another decision as relied by the senior counsel for the petitioners in Manish Ratan v. State of M.P. reported in (2007) 1 SCC 262, the Hon’ble Apex Court has taken a similar view by placing reliance on the decision of Ramesh V. State of T.N. reported in (2005) 3 SCC 507, as cited supra.

9. In the decision relied by the learned counsel for the second respondent/defacto complainant inState of M.P. V. Suresh Kaushal reported in (2003) 11 SCC 126 also the Hon’ble Apex Court has held that once there is lack of jurisdiction for a particular Court to entertain or to take cognizance of a case, the said case is to be transferred to the concerned jurisdiction Court. It is to be seen that in the decision cited supra, the other competent jurisdiction Court comes well within the State of Madhya Pradesh.

10. In the instant case, as already pointed out, the entire cause of action arises only at the State of Madhya Pradesh and as such there is a total lack of jurisdiction on the part of the Court of Judicial Magistrate No.III, Coimbatore. It is pertinent to be noted that this Court while exercising the power under Section 482 Cr.P.C. cannot transfer the instant case pending on the file of the learned Judicial Magistrate No.III, Coimbatore, to the competent Court at Madhya Pradesh.

11. At this juncture, it is relevant to refer the decision of the Hon’ble Apex Court in Y.Abraham Ajith V. Inspector of Police reported in (2004) SCC (Cri.) 2134. In that decision, the Hon’ble Apex Court has held in paragraphs 12 & 13 as follows : “..

12.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. 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.”

12. The Hon’ble Apex Court has ultimately held in paragraph 19 as follows :

“…

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 2 who, is she so chooses, may file the same in the appropriate court to be dealt with in accordance with law.”

13. In yet another decision in Bhura Ram V. State of Rajasthan reported in 2008 AIR SCW 4449 the Hon’ble Apex Court has held that, “4. The facts stated in the complaint disclose that the complainant left the place where she was residing with her husband and in-laws and came to the city of Sri Ganganagar, State of Rajasthan and that all the alleged acts as per the complaint had taken place in the State of Punjab. The Court at Rajasthan does not have the jurisdiction to deal with the matter. On the basis of the factual scenario disclosed by the complainant in the complaint, the inevitable 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. As a consequence thereof, the proceedings before the Additional Chief Judicial Magistrate, Sri Ganganagar are quashed. The complaint be returned to the complainant and if she so wishes she may file the same in the appropriate court to be dealt with in accordance with law.”

14. The principles laid down by the Hon’ble Apex Court in the decisions cited supra are squarely applicable to the facts of the instant case. As already pointed out that the entire cause of action arose only at the State of Madhya Pradesh and as such there is total lack of jurisdiction on the part of the Court of Judicial Magistrate No.III, Coimbatore. As such this Court is left with inevitable conclusion that the proceedings initiated against the petitioners is liable to be quashed and accordingly, the proceedings initiated against the petitioners in C.C.No.1202 of 2005 on the file of the Judicial Magistrate No.III, Coimbatore, is hereby quashed.

15. The learned Magistrate is directed to furnish certified copies of the relevant documents available on record including the statements of witnesses in the event of second respondent/defacto complainant filing such application for certified copies. It is made clear that the second respondent/defacto complainant is at liberty to prefer a complaint before the concerned jurisdiction police at Madhya Pradesh State, if he so desires.

16. This petition is ordered accordingly. Connected M.P. is closed.

CC

To

1. The Judicial Magistrate No.III,

Coimbatore.

2. The Inspector of Police,

All Women Police Station (C),

Coimbatore City.

3. The Public Prosecutor,

High Court,

Madras

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