BAI MEGHI SAJAN v. HARIJAN NEJA KHIMA — 1970 DIGILAW 90 (GUJ)

J. M. SHETH, J. ( 1 ) THIS is a reference made by the learned Additional Sessions Judge Rajkot District Gondal under sec. 438 of the Criminal Procedure Code recommending that the order passed by the learned Judicial Magistrate First Class Jetpur in Misc. Criminal Application No. 19 of 1969 dismissing the application filed by the petitioners against opponent No. 1 (husband of petitioner No. 1) for want of jurisdiction dated 9-3-1970 be set aside and for giving a further direction to the learned Magistrate that he should entertain the application and dispose it of in accordance with the law. ( 2 ) THE facts leading rise to this reference briefly stated are as under:- The petitioners filed a maintenance proceeding under sec. 488 of the Criminal Procedure Code against opponent No. 1. Petitioner No. 1 Bai Meghi had formerly married with one Mepa Bhima brother of opponent No. 1 and through the said Mepa she had begotten two daughters Kisu and Mangu-petitioners Nos. 2 and 3 on the death of Mepa she contracted re-marriage with opponent No. 1. According to her opponent No. 1 is her husband and she is his married wife They both resided as husband and wife last at Masitala in Gondal Taluka. But due to the ill-treatment meted out to her by him (husband) she had to go and stay at Jetpur. She herself had no means to maintain herself and her two daughters. Her husband has refused and neglected to maintain her and her daughters. She has therefore claimed maintenance at a particular rate for herself and her two daughters. ( 3 ) OPPONENT No. 1 amongst other contentions raised a contention regarding jurisdiction. According to him as the parties last resided together at Masitala village Gondal Taluka as stated by the petitioners Jetpur Court had no jurisdiction to hear this application. The learned Magistrate accepted that contention and passed the impugned order. ( 4 ) AGAINST that order the original petitioner filed Criminal Revision Application No. 26 of 1970 in the Court of Additional Sessions Judge Rajkot District Gondal and the learned Additional Sessions Judge finding that this order passed by the learned Magistrate was erroneous has made the aforesaid recommendations. According to the learned Additional Sessions Judge in view of the provisions of sub-sec. (8) of sec. According to the learned Additional Sessions Judge in view of the provisions of sub-sec. (8) of sec. 488 of the Criminal Procedure Code Jetpur Court has also jurisdiction to hear this application as admittedly Jetpur and Gondal are situated in the same judicial district of Rajkot. They are also within the same Sessions Division of Rajkot and Sub-division of Gondal. According to the learned Sessions Judge the learned Magistrate has committed an error in distinguishing the case of the Bombay High Court cited before him. The decision has considered the provisions of secs. 12 (1) and 12 (2) of the Criminal Procedure Code. According to the learned Additional Sessions Judge the view taken by the Bombay High Court in Shantabai v. Vishnupant A. I. R. 1965 Bombay 107 is the correct view in view of the provisions of sec. 12 (1) and (2) and sec. 488 (8) of the Criminal Procedure Codes as there is no express notification issued by the competent authority which has restricted the jurisdiction of the Magistrate expressly or by necessary implication to a particular local area. ( 5 ) MR. Deepak M. Shah appearing for the petitioner urged that the order passed by the learned Magistrate was erroneous and it could not be sustained in law. He invited my attention to the provisions of sec. 12 (2) and sec. 488 of the Criminal Procedure Code in support of his argument. He also invited my attention to an unreported decision on this Court in Criminal Revision Application No. 437 of 1967 decided on 6-8-1969. He also relied upon the aforesaid Bombay decision and the decision of Kerala High Court in Balkrishna Nair v. Sulochana Amma 1962 Criminal Law Journal 40. ( 6 ) BEFORE adverting to the authorities cited at the Bar it will be proper to refer to sec. 488 (8) of the Criminal Procedure Code which is very material for our purposes. It reads:- (8) Proceedings under this section may be taken against any person in any district where he resides or is or where he last resided with his wife or as the case may be the mother of the illegitimate child. A plain reading of this sub-sec. (8) of sec. 488 of the Criminal Procedure Code indicates that such proceedings under sec. A plain reading of this sub-sec. (8) of sec. 488 of the Criminal Procedure Code indicates that such proceedings under sec. 488 can be taken against any person in any district where he resides or is or where he last resided with his wife or as the case may be the mother of the illegitimate child. It does not state that such proceedings can be taken within the jurisdiction of the Court or place where he resides or is the terms of wide connotation viz. district has been used. It therefore indicates that such proceedings can be taken in any district where he resides or is or. . . . ( 7 ) SEC. 12 (1) of the Criminal Procedure Code empowers the State Government to appoint as many persons as it thinks fit besides the District Magistrate to be Magistrate of the first second or third class in any district and the Sessions Judge has been empowered subject to the control of the High Court to define local areas from time to time within which such persons may exercise all or any of the powers with which they may respectively be invested under this Code. ( 8 ) SUB-SEC. (2) of sec. 12 of the Criminal Procedure Code which is material for our purposes read:- (2) Except as otherwise provided by such definition the jurisdiction and powers of such persons shall extend throughout such district. It therefore appears that in the absence of words restricting the jurisdiction expressly or by necessary implication the jurisdiction and powers of such Magistrates appointed shall extend throughout such district. ( 9 ) IT is admitted by Mr. Chhaya learned Assistant Government Pleader that there is no such notification issued which restricts the jurisdiction of such Magistrates to a particular local area either expressly or by necessary implication suggesting thereby that it does not extend throughout such district. ( 10 ) IN the aforesaid Bombay decision Kotwal J. (as he then was) has observed:-IN interpreting word district in sec. 488 (s) of the Code it is not only the word district which one must have regard to but the entire expression any district where he resides. ( 10 ) IN the aforesaid Bombay decision Kotwal J. (as he then was) has observed:-IN interpreting word district in sec. 488 (s) of the Code it is not only the word district which one must have regard to but the entire expression any district where he resides. The express use or word district should not be given any meaning different from normal connotation of that word and in view or express use of words any district where he (husband) resides it cannot be limited only to a Court within that district within whose jurisdiction husband resides. ( 11 ) THE object of sec. 488 appears to be clear enough where a husband and wife have fallen out and the wife is required to make an application either for herself or for her child she should not be put to the harassment of going to the very place where the husband is at the time of the application residing. If that were so the recalcitrant husband who has fallen out with the wife could move about from place to place and thus make it impossible for the wife to choose a place in which to prefer her application for maintenance. AT the same time it is clear that a fractious woman should not be enabled to harass her husband by making an application at any place very far from the place where the husband resides after their separation and having regard to these rival claims of the two spouses the Legislature limited the jurisdiction under sec. 488 to the district where the husband resides that is to say the jurisdiction was given to any Magistrate in the district so long as the husband was resident in the district over which the Magistrate held jurisdiction. In the instant case. The husband resided within the District of Rajkot. The Court at Jetpur is situated in that district. It is therefore evident that the Judicial Magistrate at Jetpur had jurisdiction to entertain this proceeding as the husband resided within the Rajkot district. ##471/12 12 At page 118 in para 5 the provisions of sec. ( 12 ) OF the Criminal Procedure Code have been considered and the following observations have been made:-IN this respect is may be pointed out that the exercise of jurisdiction under sec. ##471/12 12 At page 118 in para 5 the provisions of sec. ( 12 ) OF the Criminal Procedure Code have been considered and the following observations have been made:-IN this respect is may be pointed out that the exercise of jurisdiction under sec. 488 is limited to a Presidency Magistrate or a Magistrate of the First class and a First class Magistrates jurisdiction is defined by sec. 12 of the said Code. The jurisdiction under sec. 12 (1) is conferred upon a Magistrate district wise and it is with reference to that jurisdiction that it seems to me the provisions of the other sections of the Code will have to be construed particularly sec. 488 (8)d ( 13 ) A single Judge of Kerala High Court in Balkrishnan Nair v. Sulochana Amma (Supra) has taken the same view. After referring to sec. 488 (8) of the Criminal Procedure Code the following pertinent observation have been made at pages 40 and 41:-THE language is quite clear that the wife can proceed against her husband under sec. 488 in any of the districts where he resides or is or where he last resided with her. This wide choice of forum given presumably as a concession to the neglected wife is not to be narrowed by any unduly strict interpretation of the term district. The aggrieved person in this case who is living with here parents at Tirur found it easy to move the Malappuram Magistrate and she can do so since Malappuram and Naduvattam are within the same District Kozhikoda. It is however contended by the learned counsel for the revision petitioner that sec. 488 (8) is controlled by sec. 12 of the Criminal Procedure Code and since Naduvattam is not one of the areas specified in the notification published in the Kerala Gazette Part 1 dated 1st September 1959 which defines the territorial jurisdiction of the Sub-Divisional Magistrate Malappuram he has no jurisdiction to entertain the proceedings. The said notification is to the effect that Government is pleased to establish a Sub-Divisional Magistrate Court at Malappuram in the District of Kozhikode with effect from 17th day of August 1959 and fix the jurisdiction of the said Sub-Division to comprise the jurisdiction of the Sub Magistrates of Manjeri and Tirur that is the local limits of the following police stations : -. . . . . . . . . . . . . . . Fourteen stations are mentioned including Tirur but not Naduvattam. However having regard to sec. 12 of the Criminal Procedure Code I do not think that the said notification by itself will have the effect of rendering the Sub-Divisional Magistrate at Malappuram incompetent to conduct the present proceedings. After referring to secs. 12 (1) and 12 (2) of the Criminal Procedure Code the observations made therein are:-READING the section as a whole it is clear that the mere definition of the territorial jurisdiction of a Magistrate cannot by itself prevent him from exercising jurisdiction in other areas of the same district unless the order fixing his territorial jurisdiction does either expressly or by necessary implication exclude the other areas from his jurisdiction. ( 14 ) I am fortified in this view by several decisions of the various High Courts. In Gulabrao v. Emperors A. I. R. 1935 Bombay 409 while considering the combined effect of sec. 12 (1) and (2) His Lordship Beaumont C. J. observed:-SUB-SEC. (2) seems to me to be a saving clause which prevents the mere carving up of the district into areas amongst Magistrates from having the effect of depriving Magistrates of jurisdiction in the whole district unless the order defining the areas so provides. It is obvious to my mind that the mere definition of areas cannot be taken as a provision excluding jurisdiction in the rest of the district for if it did sub-sec. (2) would be meaningless. I think the sub-section clearly requires some provision excluding jurisdiction in the rest of the district which is either express or must be inferred by necessary implication. I am in respectful agreement with this principle enunciated by Beaumont C. J. ( 15 ) IN Criminal Revision Application No. 437 of 1967 decided on 6 August 1969 (Mansukhlal Vallabhdas v. Mangalaben XI G. L. R. 980) by N. G. Shelat J. a similar view has been taken. The relevant observations made therein are as under:-THE contention in the Courts below and faintly repeated before this Court was that the court of the learned Magistrate at Jamnagar had no jurisdiction to entertain the application inasmuch as the parties last resided at Khambhalia and not at Jamnagar. The Court at Khambhalia has therefore jurisdiction to hear the application under sec 488 of the Criminal Procedure Code. The provisions contained in sub-sec. The Court at Khambhalia has therefore jurisdiction to hear the application under sec 488 of the Criminal Procedure Code. The provisions contained in sub-sec. (8) of sec. 488 of the Criminal Procedure Code relate to the jurisdiction of the Court in which proceedings under sec. 488 of the Code can be taken. It runs thus: -. . . . . . . . . . . . . . . . . . . . The words used in any district where he resides or is or where he last resided with his wife contemplate not the place but the district in which they last resided It does not refer to any place so as to give jurisdiction to the Court within which that place is situated as in this case at Khambhalia. The words sin any district where he resides or is or where he last resided with his wife came to be considered in the case of Shantabai W/o. Vishnupant v. Vishnupant Atmaram Kulkarni A. I. R 1965 Bombay 127. That Bombay view has been preferred by Shelat J. ( 16 ) TAKING into consideration the clear language of sec. 12 (1) and (2) and sec. 488 of the Criminal Procedure Code and the aforesaid decisions. it is evident that the submission made by Mr. Shah is well-founded. Mr. Chhaya appearing for the State also fairly conceded to that position. It is therefore evident that the order passed by the learned Magistrate dismissing the application for want of jurisdiction cannot be sustained. Reference has therefore to be accepted. ( 17 ) REFERENCE is accepted. The order passed by the learned Magistrate dated 9-3-1970 dismissing the miscellaneous Criminal Application No. 19 of 1969 for want of. jurisdiction is set aside and he is directed to proceed further with this application and dispose it of in accordance with law. Rule is made absolute. Rule made absolute. .