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1967 DIGILAW 350 (ALL)

Sri Krishna Lal v. Usha Devi

1967-09-21

RAJESHWARI PRASAD

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ORDER Rajeshwari Prasad, J. - The learned Sessions Judge, Ballia, has made the instant reference to this Court. He has recommended that the order of the learned magistrate summoning the six accused persons to stand their trial be quashed and the learned magistrate be directed to return the complaint to the complainant as provided by Section 201 of the Code of Criminal Procedure. 2. The trial magistrate passed an order u/s 204 of the Code of Criminal Procedure summoning the Petitioners to stand their trial u/s 494 of the IPC. 3. On 22-5-1965 Smt. Usha Devi, opposite party, filed a complaint u/s 494/112 of the IPC, against the Applicants in which she alleged that she was married to accused Madan Mohan Srivastava at Ballia on 10-6-1963. Soon after the marriage she was illtreated and sent back to her father. Her ornaments were detained. The father of Smt. Usha Devi had a talk about the matter with the accused Ram Chander and accused Sri Krishna Lal who were the brothers of accused Madan Mohan Srivastava, the husband of the complainant. They, however, expressed their inability to take her back and eventually Madan Mohan Srivastava accused, in collusion with accused Nos. 3, 4, 5 and 6, married Smt. Sobha Rani, accused No. 2, at Lucknow on 30-8-1964. According to her Madan Mohan Srivastava had committed the offence of bigamy and the other five accused were guilty of abetment. 4. The learned magistrate recorded the statement of the complainant and two witnesses u/s 202 of the Code of Criminal Procedure and after doing that he passed the order on 8-6-1965, which is sought to be revised. 5. Soon, therefore, Sri Kishan Lal Srivastava, the Petitioner, who has been living at Ballia filed a petition in revision before the Sessions Judge against the order of the learned magistrate on the ground that the learned magistrate had no jurisdiction to try the case. His petition in revision was, however, summarily rejected on 18-6-1965, by the learned Sessions Judge and in the order rejecting that revision petition it was said, that the plea of jurisdiction should first be taken in the court of the magistrate. Thereafter, on 22-6-1966, Sri Krishna Lal moved an application in the court of the learned magistrate disputing his jurisdiction to try the case. But it appears that no order was passed on that application. Thereafter, on 22-6-1966, Sri Krishna Lal moved an application in the court of the learned magistrate disputing his jurisdiction to try the case. But it appears that no order was passed on that application. The magistrate then gave direction that the complainant should take steps to get the other accused persons summoned. The Petitioners thereafter filed a petition in revision before the learned Sessions Judge on the basis of which the learned Sessions Judge has made the reference to this Court. 6. The observation made by the learned Sessions Judge in his order, is that, the allegations of the complaint make it clear that the bigamous marriage took place at Lucknow. In view of that fact the learned Sessions Judge immediately took the decision that the learned magistrate at Ballia did not have jurisdiction to take cognizance of that offence. With regard to the charge of abetment against the other co-accused the learned Sessions Judge observed that accused Nos. 2, 4 and 5 (Smt. Sobha Rani Srivastava, Ram Chander Prasad and Jitendra Kumar) were living at Allahabad while accused No. 3 Raj Narain Sinha was living at Lucknow; accused No. 1 was living at Faizabad and only accused Nos. 6, that it to say, Sri Krishan Lal was living at Ballia. The learned Sessions Judge also observed that in the evidence recorded u/s 202, Code of Criminal Procedure, there was nothing to suggest that abetment took place at Ballia. The learned Sessions Judge thereafter quoted the provision of Section 201(1) and came to the conclusion that the learned magistrate at Ballia had no jurisdiction whatsoever to take cognizance of the case and he should have returned the complaint to the complainant as provided in that section. 7. In support of the reference it has been urged that from the allegations made in the complaint it does not appear that any act in relation to the offences which were the subject-matter of the charge, was done at Ballia and the marriage having taken place at Lucknow the magistrate at Ballia did not have jurisdiction to take cognizance of the case and that the view taken by the learned Sessions Judge is correct. 8. 8. On behalf of the opposite party it has been contended that the magistrate at Ballia was competent to entertain the complaint within the meaning of Section 201 of the Code of Criminal Procedure and the question of his having territorial jurisdiction over the cause was of no consequence for the purposes of the provision of Section 201, Code of Criminal Procedure. It has further been contended that the offence of abetment was committed at Ballia and the fact that the Petitioner permanently resides at Ballia is clearly indicative of the fact that the act of abetment so far as the Petitioner is concerned had taken place at Ballia. It had been urged that, in any case, there is nothing in the complaint to show that the offence of abetment was committed outside Ballia and in case the allegations of the complaint are vague it would be open to the complainant to prove by evidence that the offence of abetment was committed at Ballia. The further argument on behalf of the opposite side is to the effect that, in any case, charges of abetment and of the principal offence, namely, of bigamy in this particular case, could be combined in one trial on account of the provision of Section 239-B, Code of Criminal Procedure. The provision of Section 239-B therefore, may be treated to be an exception to the general rule with regard to jurisdiction of courts laid down by Section 177 of the Code of Criminal Procedure. It has been urged that it is incorrect to say that the only exceptions to that general rule of Section 177, Code of Criminal Procedure, (are) those which are contained in the following sections, namely, Sections 179 and 180 of the Code of Criminal Procedure. The provision of Section 239-B must also be deemed to be an exception to the general rule. Consequently it is clear that the offence of abetment and of the offence abetted could be joined in one trial and filed in one court. On that basis it has been urged that the magistrate at Ballia did have jurisdiction to try the case. 9. Sub Clause (2) of Section 239, Code of Criminal Procedure, permits combination of charges and joint trials of persons accused of an offence and persons accused of abetment, or of attempt to commit such an offence. On that basis it has been urged that the magistrate at Ballia did have jurisdiction to try the case. 9. Sub Clause (2) of Section 239, Code of Criminal Procedure, permits combination of charges and joint trials of persons accused of an offence and persons accused of abetment, or of attempt to commit such an offence. The question whether Section 239-B is an exception to the general rule of Section 177, Code of Criminal Procedure, was considered in the case of Purushottamdas Dalmia v. State of West Bengal by the Supreme Court which decision is reported in 1961 AWR 665. In that decision the view taken was that by virtue of 239-8 of the Code of Criminal Procedure the charge of abetment and that of the offence abetted could be tried by the court which had territorial jurisdiction in respect of the offence of either abetment or the offence abetted. This view was based on the opinion that Section 239 B is an exception to the general rule laid down by Section 177 of the Code of Criminal Procedure. I am, therefore, of the opinion that in case the offence of abetment was committed within the territorial jurisdiction of the magistrate at Ballia that magistrate had jurisdiction to take cognizance of the complaint both in respect of the offence of abetment as well as of the offence of bigamy which undisputedly had been committed at Lucknow. 10. Before parting with the case I would like to add that I have not been able to find nor had my attention been drawn to any provision in the Code of Criminal Procedure which makes it incumbent on a complainant to expressly indicate that the court in which the complaint had been filed had jurisdiction to entertain the same. The language of Section 177, Code of Criminal Procedure, could also suggest that it is that court which will try a case within the local limits of whose jurisdiction the alleged offence was committed. The question of jurisdiction, therefore, has not been made to rest, on the allegations of the complaint only but on the consideration of the fact as to where the offence was committed. The question of jurisdiction, therefore, has not been made to rest, on the allegations of the complaint only but on the consideration of the fact as to where the offence was committed. Whether, that is so or not it is not necessary for me to decide, but, what appears to be certain, is that, in case where the allegations of the complaint are wide enough to allow the complainant to prove by evidence the place of the occurrence of the offence, I consider that in such a case the complainant would be entitled to prove by evidence that the offence was committed at a particular place. Of course, if the allegations in the complaint rule out the possibility of the offence having been committed at a particular place then in that event evidence in departure of the complaint allegations would be inadmissible. Consequently no useful purpose would be served in permitting the complainant to adduce evidence that the alleged offence was committed at a place where it could not have been committed according to the complaint allegations. On the facts of the instant case, therefore, it could not be said that the order passed by the trial magistrate was erroneous. It may further be noted that the learned Sessions Judge was not correct in coming to the conclusion that the summoning of the accused by the trial magistrate was contrary to the provisions of Section 201 of the Code of Criminal Procedure. Competence of a court is one thing and its having territorial jurisdiction over a cause is another. What Section 201, Code of Criminal Procedure, requires is only competence of a magistrate to take cognizance of a particular offence. If the offence alleged in the complaint had been committed within the territorial jurisdiction of the magistrate at Ballia it could not be said that the particular magistrate concerned in this case was not competent to proceed with the matter. 11. I am, therefore, unable to accept the reference made by the learned Sessions Judge and I am of the opinion that the magistrate at Ballia did not act without jurisdiction in directing the accused to be summoned in this case. The reference is rejected.