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1998 DIGILAW 218 (CAL)

Kajal Mukherjee v. State of W. B.

1998-05-13

Asish Baran Mukherjee

body1998
JUDGMENT A.B. Mukherjee, J.: In course of the composite application under section 401 and 482 of the Criminal Procedure Code the petitioners, nine in number who figure as accused in Para P.S. Case No. 52 of 1993 under sections 498A/34/323/120B/406 of the Indian Penal Code pray for quashing of the said proceeding as also the order dated 16th of November 1994 passed by the Ld. Sessions Judge at Purulia in Criminal Revision No. 78 of 1993. 2. The case of the petitioners in short is that petitioner No.1 is the husband who runs a business at Bokaro, District, Bihar. Petitioner No.2 being the elder brother of petitioner No.1, is an employee of Bokaro Steel Plant. The petitioner No.3 being the younger brother of petitioner No.1, is an employee of Barmo Coliary in Bihar. Petitioner No.4 being younger brother of petitioner No.1 is also a business man. Petitioner No.5 is the old widow mother-in-law aged about 75 years. Petitioner No. 6 is the married sister of petitioner No.1 and petitioner No.7 is the husband of petitioner No.6 who being a Government employee at Jaipur, are resident of Purulia District. Petitioner No.8 is also married sister of petitioner No.1 residing at Bokaro Steel Plant. Petitioner No.9 being cousin brother of petitioner No.1 is a permanent resident of Barmo in Bihar. Petitioner No.1 was married to the O.P. No.2 and marriage was celebrated at Dhanbad on 17th of May 1993. A petition of complaint was filed before the Chief Judicial Magistrate, Purulia by the opposite party No.2 being Complaint Case No. 68 of 1993. It was alleged that after the marriage which was performed on 19th of June 1988 at Bhajudi within the District of Bihar at Dhanbad according to Hindu Rites and Customs and after the ceremony of Ashtamangola performed within the jurisdiction of Para P.S. in Purulia. Opposite party No.2 started to reside with petitioner No.1 besides the petitioners 2 to 5 in their house situated in Bokaro. It is alleged that during marriage some gold ornaments were given to opposite party No.2. Subsequently, she was tortured by accused Nos. 1 to 5 both physically and mentally, commanding her to bring more dowry for extending the business of her husband, when out of fear, opposite party No.2 took shelter to the house of her brothers. It is alleged that the accused Nos. Subsequently, she was tortured by accused Nos. 1 to 5 both physically and mentally, commanding her to bring more dowry for extending the business of her husband, when out of fear, opposite party No.2 took shelter to the house of her brothers. It is alleged that the accused Nos. 1 to 5 used to insist the complainant to commit suicide and the baby born out of their wed-lock was also ill-treated. Ultimately, she along with the baby were driven out of matrimonial home following severe assault. Accordingly, she made a complaint. 3. The complaint was sent by the Chief Judicial Magistrate, Purulia to Para P.S. for treating the same as an F.I.R. and also for investigation. 4. Later the O.C., Para P.S, after making enquiry came to the finding that the place of occurrence was within the jurisdiction of Chash P.S. in the District of Bokaro and all the accused persons also belonged to the same police station. Thereafter, the petitioners made an application before the Sub-Divisional Judicial Magistrate at Purulia who by order dated 18th of September 1993 came to the finding that the alleged incident and consequences took place at a place within the District of Dhanbad in the State of Bihar and the Courts of Purulia have no territorial jurisdiction to take cognizance of the offence. Opposite party No.2 moved a revisional application being Criminal Revision 78 of 1993 before the Sessions Judge at Purulia and the latter by his order dated 16th of November 1994 set aside the order of the Sub-Divisional Judicial Magistrate, Purulia with the direction to send back the F.I.R. to the Officer-in-Charge of the Para Police Station for investigation. 5. The petitioner No.1 got Anticipatory Bail from the Sessions Judge at Purulia and the rest of the petitioners got bail also from the same Court. It is alleged that since the alleged incident happened within the District of Dhanbad Purulia has no jurisdiction to entertain the petition of complaint and accordingly they have prayed for quashing. 6. None appears for the opposite parties. I have given my careful consideration to the facts and circumstances of the case. I have also gone through the body of the complaint which was filed before the Chief Judicial Magistrate, Purulia by opposite party No.2 and which was later sent to Purulia P.S. under section 156(3) of the Criminal Procedure Code. 6. None appears for the opposite parties. I have given my careful consideration to the facts and circumstances of the case. I have also gone through the body of the complaint which was filed before the Chief Judicial Magistrate, Purulia by opposite party No.2 and which was later sent to Purulia P.S. under section 156(3) of the Criminal Procedure Code. I have also gone through the initial reports submitted by the Officer-in-Charge of Para P.S. to the Sub-Divisional Judicial Magistrate at Purulia. I have also gone through the order of the Ld. Sub-Divisional Judicial Magistrate whereby he came to the conclusion that the Courts at Purulia have no jurisdiction to entertain the petition of complaint since the cause of action for the said offences arose at a place within the jurisdiction of Dhanbad under Bihar. I have also gone through the order of the Ld. Sessions Judge at Purulia in the criminal revision whereby the Ld. Judge was pleased to set aside the order of the Sub-Divisional Judicial Magistrate and directed the F.I.R. being sent to the O.C. Para P.S. in accordance with the earlier direction of Chief Judicial Magistrate, Purulia. The Ld. Judge also was of opinion that it was not the stage to entertain any objection with regard to the territorial jurisdiction. He is also of the opinion that action on the part of the Officer-in-Charge of the Para P.S. in making a report to with the Sub-Divisional Judicial Magistrate and the subsequent Order of the Sub-Divisional Judicial Magistrate, Purulia were beyond the jurisdiction of the respective authorities. On a careful scrutiny of the aforesaid documents and the law on this point, I come to the conclusion that the ultimate order passed by the Ld. Sessions Judge, Purulia cannot be allowed to stand. At the same time, it must be stated that action on the part of O.C., Para P.S. in sending report to the Sub-Divisional Judicial Magistrate in the face of the direction of the Ld. Chief Judicial Magistrate, Purulia under section 156(3) of the Criminal Procedure Code is certainly an act of impropriety. Sessions Judge, Purulia cannot be allowed to stand. At the same time, it must be stated that action on the part of O.C., Para P.S. in sending report to the Sub-Divisional Judicial Magistrate in the face of the direction of the Ld. Chief Judicial Magistrate, Purulia under section 156(3) of the Criminal Procedure Code is certainly an act of impropriety. I also come to the conclusion that the act on the part of the Sub-Divisional Judicial Magistrate, Purulia to act on the said report and to come to a conclusion that notwithstanding the order of the Chief Judicial Magistrate, Purulia the petition of complaint could not have been entertained by O.C., Para P.S. is also an act of impropriety. In the fitness of things the report given by the Officer-in-Charge of the Para P.S. on receipt of the petition of complaint from the Ld. Chief Judicial Magistrate ought to have been sent to the Chief Judicial Magistrate himself for such action as he deems fit and proper. Similarly, the Ld. Sub-Divisional Judicial Magistrate should have referred the matter to the Ld. Chief Judicial Magistrate without taking up for himself the responsibility of pronouncing an order which goes against the direction given by the Ld. Chief Judicial Magistrate. 7. Let us come to the merits of the present revisional application. We have before us a petition of complaint which was sent to Officer-in-Charge of Para P.S. alleging offences under section 498A/323/406/120B read with section 34 of the Indian Penal Code. As the complaint was filed before the Ld. Chief Judicial Magistrate, he sent the same to O.C., Para P.S. under section 156(3) of the Criminal Procedure Code. Presumably, the Ld. Chief Judicial Magistrate has not gone through the petition of complaint. It may be stated that even when the petition of complaint is filed before either Sub-Divisional Judicial Magistrate or Chief Judicial Magistrate with a view to sending the same to the concerned Police Station under section 156(3) of the Criminal Procedure Code, the Ld. Magistrate should not simply act as Post Office but they are required to go through the same, not with a view to taking cognizance, but with a view to prima facie satisfying themselves that there are prima facie allegation of commission of cognizable offence. Magistrate should not simply act as Post Office but they are required to go through the same, not with a view to taking cognizance, but with a view to prima facie satisfying themselves that there are prima facie allegation of commission of cognizable offence. Unless, there is an existence of such a prima facie case, a petition of complaint cannot be sent with the help of section 156(3) of the Criminal Procedure Code. A plain reading of the petition of complaint will at once reveal that allegations which constitute the offences alleged happened within the District of Dhanbad situated in Bihar. The Ld. Sessions Judge has observed that the Ld. Sub-Divisional Judicial Magistrate did not take notice of existence of section 179 of the Criminal Procedure Code. On a careful perusal of the petition of complaint, it appears to me that the said section is not at all applicable in the facts and circumstances of the case. The offences which are governed by the section 179 of the Criminal Procedure Code is such offences where the act by itself, does not constitute the offence but the act together with its consequence constitutes the offence. Only in such cases the said offence can be tried in the place where either the act was done or the consequence has ensued. But if the offence is completed by a reason of the act being done and the consequence is a mere result of it which was not necessary for completion of the offences then section 179 cannot apply. So far as the alleged offence under section 498A or 323 is concerned, it is within the domain of the Court within whose territorial jurisdiction the offences were committed. So far as the offence under section 406 of the Indian Penal Code is concerned, the Court within whose local jurisdiction the offence was committed or any part of the property which is the subject matter of the offence was received or retained or was required to be returned or accounted for the Court which in terms of section 182, subsection (4) of the Criminal Procedure Code is to try the offence. If we apply the test in the complaint before us we will find that there is no averment to the effect that because of the alleged act on the part of the present petitioners in the shape of torture etc. If we apply the test in the complaint before us we will find that there is no averment to the effect that because of the alleged act on the part of the present petitioners in the shape of torture etc. within the jurisdiction of District Dhanbad a consequence ensued within the jurisdiction of Para P.S. where the complainant took shelter and if such consequence and the act would constitute an offence then only the Para P.S. could have the jurisdiction. So far as the story of alleged assault or ill-treatment is concerned, the offence appears to have been completed within the jurisdiction of Dhanbad District, so far as the allegation of criminal mis-appropriation is concerned, it is the categorical averment of the petition of complaint that the complainant was made to part with gold ornaments while she was at her matrimonial home within the jurisdiction of Chas Police Station within the District of Dhanbad and those articles were also kept in the custody of the accused persons living within the same territory before the complainant was allegedly driven away from the matrimonial home. 8. Accordingly, after giving my careful consideration to the facts and circumstances as appearing from the averment of the petition of complaint, I come to the conclusion that Para P.S. or for that matter the Sub-Divisional Judicial Magistrate or Chief Judicial Magistrate of Purulia has no jurisdiction to entertain the petition of complaint but it should be treated as an F.I.R. since it discloses prima facie offences under section 498A/323/406/120B of the Indian Penal Code and the said FIR is to be registered at Chas Police Station within the District of Dhanbad in accordance with law. Accordingly, the Ld. Sub-Divisional Judicial Magistrate, Purulia is directed to send the F.I.R. including the petition of complaint to the Ld. Chief Judicial Magistrate at Dhanbad for appropriate action in accordance with law. With this observation the revisional application disposed of. Application disposed of with observation.