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2000 DIGILAW 768 (PAT)

Tripurari Kumar Mishra v. State Of Bihar

2000-06-23

INDU PRABHA SINGH

body2000
Judgment I.P.Singh, J. 1. This application in revision under sections 397 and 401 of the Code of Criminal Procedure, 1973 (inshort the Code) has been filed against the order dated 1.12.1997 passed by the Sub Divisional Judicial Magistrate, Nalanda at Biharsharif in G.R. Case No. 982 of 1987/ Tr. No. 1083 of 1997 by which the earned Sub Divisional Judicial Magistrate ordered for amendment of the charge framed against the accused persons (present petitioners) so as to include the charge under 406 of the Indian Penal Code also against them. 2. From the record it appears that Complaint Case No. 236-C/1987 was filed before the Chief Judicial Magistrate, Nalanda at Biharsharif which was sent to the concerned police station for instituting a case and for submission of the final form. Accordingly, the F.I.R. was instituted and the police after completing the investigations submitted the charge sheet. The cognizance of the offence was taken and uitimately the case was transferred to the court of Shri Vijoy Kumar Pandey, Judicial Magistrate, 1st Class, Nalanda at Biharsharif who after hearing the parties ordered for the framing of the charges under sections 419 and 420 of the Indian Penal Code against the accused persons. Against this order Criminal Revision was filed on behalf of the informant (Cr. Rev.No. 137/97) praying therein that the learned Magistrate be directed to frame the charge also under section 406 of the Indian Penal Code. By an order dated 21.6.1997 the learned Sessions Judge, Nalanda directed the learned Magistrate to frame the charge also under section 406 of the Indian Penal Code. It is against the order of the S.D.J.M. dated 1.12.1997 passed in compliance of the order of the learned Sessions Judge passed in Criminal Revision No. 137/97 that the present revision application has been filed. 3. The prosecution case, in short, is that the informant Ram Narayan Vyas (Opposite party no. 2) had settled the marriage of his niece Ranjana Kumari with the son of the petitioner no. Tripurari Kumar Mishra. As per this settlement a Vespa Scooter, Sonodyne TV., golden ring, suit, wrist watch etc. and cash of Rs. 25,000/- were to be given as dowry for this marriage. 5.6.1987 was the date fixed for performance of Tilak and this function was performed. On 12.6.1987 the Barat went to village Begampur in the District of Nalanda at the place of opposite party no. and cash of Rs. 25,000/- were to be given as dowry for this marriage. 5.6.1987 was the date fixed for performance of Tilak and this function was performed. On 12.6.1987 the Barat went to village Begampur in the District of Nalanda at the place of opposite party no. 2 where the present petitioner no. 1 is said to have demanded a further sum of Rs. 11,000/- by way of dowry before the performance of the marriage. Opposite party no. 2 expressed his inability to meet this demand as a result of which the Barat returned back without performing the marriage. Opposite party no. 2. filed a petition before the Chief Judicial Magistrate under sections 3 and 4 of the Dahej Nirodh Ad-hiniyam. It was sent to the police for instituting a case and finally the police submitted the charge sheet under sections 419 and 420 of the Indian Penal Code. The cognizance of the offence was taken under these two sections and the learned Magistrate proceeded to frame the charge under these section against the present petitioners. Before the learned Magistrate a prayer was made that the charge also under section 406 of the Indian Penal Code should be framed against the present petitioners. This prayer was refused by the learned Magistrate, against which criminal revision vide Cr. Rev. No. 137/97 was filed before the learned Sessions Judge who was pleased to allow the same in compliance of which the impugned order was passed. It is against this order that the present revision application has been filed. 4. A supplementary affidavit has also been filed on behalf of the petitioners, according to which the negotiation for the marriage had taken place at Muhalla Baluper, Police Station-Digha, District-Patna and Phaldan was also performed there. The Barat had gone to village- Begampur in the District of Nalanda at Biharsharif on 12.6.1986 where the marriage could not be performed and the Barat had returned back. In the meantime, Abhay Kumar Mishra, elder brother of the bride groom was murdered for which a criminal case was started in the district of Patna. From the allegations made against the present petitioners the alleged offence had taken place in the district of Patna and as such the courts within the district of Nalanda had no jurisdiction to try this case. 5. From the allegations made against the present petitioners the alleged offence had taken place in the district of Patna and as such the courts within the district of Nalanda had no jurisdiction to try this case. 5. Since the question of jurisdiction has been raised in this case I will firstly like to deal with it. Before referring to law on the subject I would like to mention here that in this case the charges were framed on 12.2.1992 by - the Judicial Magistrate of Biharsharif under sections 419 and 420 of the Indian Penal Code. After framing of the charge as many as 8 P.Ws. were examined in the court at Nalanda. The prosecution case was closed and the accused persons (present petitioners were examined under section 313 of the Code. The accused also examined two D.Ws. This was the stage at which the case was pending when a prayer was made to amend the charge so as to include the charge under section 406 of the Indian Penal Code also against the present petitioners. It is important to mention here that prior to it the accused persons did not raise any objection with respect to the jurisdiction of the courts at Nalanda. 6. The question that will arise for consideration at this stage would be under the aforesaid facts and circumstances can the present petitioners be allowed to take up the plea of want of jurisdiction of the courts at Nalanda? It is well known that the jurisdiction of the criminal courts for the trial of the offences is of two kinds. One type deals with the power of the court to try particular kinds of the offences. This power is dealt with under Chapter III of the Code. This is a jurisdiction which goes to the root of the matter and if the court not empowered to try the particular case does try it, the entire trial is void. The aforesaid view finds support from the case of Purushottamdas Dal-mia V/s. State of West Bengal (AIR,1961 S.C. 1589) and also from the case of State of Uttar Pradesh V/s. Sabir Ali and anr. (A.I.R. 1964 S.C. 1673). The other kind of jurisdiction is territorial jurisdiction as contained in Chapter XIII of the Code. The aforesaid view finds support from the case of Purushottamdas Dal-mia V/s. State of West Bengal (AIR,1961 S.C. 1589) and also from the case of State of Uttar Pradesh V/s. Sabir Ali and anr. (A.I.R. 1964 S.C. 1673). The other kind of jurisdiction is territorial jurisdiction as contained in Chapter XIII of the Code. The provisions relating to it as contained in section 177 are not peremptory in the same sense as those of Chapter III relating to substantive jurisdiction. The territorial jurisdiction is provided just as a matter of convenience keeping in mind the administrative point of view with respect of the work of a particular court to the convenience of the accused who will have to meet the charges levelled against him and also convenience of the witnesses who have to appear before the court. Section 181 of the Code also provides for the place of trial in case of certain offences. Its sub-section (4) provides that the offence of criminal breach of trust may be enquired into or tried by a court within whose jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused persons. In the present case if the case of the prosecution is accepted to be correct for a moment that the present petitioners had committed criminal breach of trust with respect to certain properties they were required to turn back the same to the opposite party no. 2 at his place of village Begampur which is definitely within the jurisdiction of Nalanda courts. From this also it would appear that the Nalanda Courts had jurisdiction over the matter and I do not find any want of jurisdiction in Nalanda Courts as alleged by the present petitioners. It may be mentioned here that was tor this reason that even till the examination of the D.Ws. the present petitioners did not raise the plea of want of jurisdiction before the court. Hence I do not find any merit in this contention of the petitioners. 7. I have perused the order dated 21.6.1997 passed by the learned Sessions Judge according to which he held that the allegations made against the present petitioners also disclosed an offence under section 406 of the Indian Penal Code. Hence I do not find any merit in this contention of the petitioners. 7. I have perused the order dated 21.6.1997 passed by the learned Sessions Judge according to which he held that the allegations made against the present petitioners also disclosed an offence under section 406 of the Indian Penal Code. I am sorry to note that the learned Sessions Judge, Nalanda has totally misdirected himself on this point. The reasons are as follows. In the first place it may be mentioned that a Senior Officer of the rank of the Sessions Judge did not think it proper to hear the present petitioner no. 1 who figured as opposite party no. 2 before him before passing the impugned order. At least in the impugned order there is no mention of the fact that opposite party no. 2 was also heard. Even in the concluding portion of the order he has stated that this criminal revision stands disposed of at this stage itself meaning thereby that he did not think it proper to hear opposite party no. 2 before him before passing the impugned order. This to say the least, is highly improper and not expected of a Senior Officer of the rank of Sessions Judge. 8. Another thing to be noted in this connection is that the learned Sessions Judge has wrongly come to the conclusion that an offence under section 406 of the Indian Penal Code has also been made out against the present petitioners. In paragraph 4 of his order he has referred to the definition of criminal breach of trust as contained in section 405 of the Indian Penal Code. However, he has mis-applied this definition to conclude that the offence also under section 406 of the indian Penal Code has been made out. Section 405 of the Indian Penal Code reads as follows : "405. Criminal breach of trust. However, he has mis-applied this definition to conclude that the offence also under section 406 of the indian Penal Code has been made out. Section 405 of the Indian Penal Code reads as follows : "405. Criminal breach of trust. Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts in his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made "touching" the "discharge" of such trust, or wilfully suffers any other person so to do, commits "Criminal breach of trust" (Explanation 1 and 2 omitted)." (Emphasis supplied) 9. It is well settled that a "trust" is an obligation annexed to the ownership of the property. The word "trust" is a comprehensive expression and has been used in relationship of trustee and beneficiary. Here breach of contract is not made synonymous with criminal breach of trust. The word "entrustment" carries with it the implication that the person handing over any property to another continues to be its owner. The person who transfers the property to the second party still continus to be its legal owner. The word "entrusted" when used in respect of money means that the money has been transferred to the accused who holds it in trust as a bailee for the prosecutor as bailor to be restored to him as per his instructions. Applying the above provisions of law to the facts of the present case it is clear that the allegations made against the present petitioners do not constitute an offence as mentioned in Section 405 of the Indian Penal Code. Here the property or cash was not given to the petitioners by way of entrustment to be returned back to the complainant as per his directions or applied in accordance with his instructions. When goods are delivered to a person in pursuance of a contract there is no entrustment. Hence the allegations made in the present case do not amount to an offence under section 406 of the Indian Penal Code. For the reasons stated above, the findings of the learned Sessions Judge are obviously wrong. When goods are delivered to a person in pursuance of a contract there is no entrustment. Hence the allegations made in the present case do not amount to an offence under section 406 of the Indian Penal Code. For the reasons stated above, the findings of the learned Sessions Judge are obviously wrong. Since the impugned order has been passed by the learned Magistrate in compliance of the wrong directions given by the learned Sessions Judge, the same cannot be sustained. Moreover, there could be no legal contract expressed or implied for payment of dowry in consideration of the marriage since the same has been prohibited under law and made punishable. For the reasons stated above the impugned order can not be allowed to stand. 10. In the present case the learned revisional court has directed for the alteration of the charges framed against the present petitioners so as to include the charge also under section 406 of the Indian Penal Code against them. On behalf of the petitioners it has been submitted that the lower revisional court could not have exercised this power. I do not find any force in this contention of the petitioners. It is well settled that the Criminal Procedure Code gives ample power to the courts to alter or amend the charges whether by the trial court or by the appellate court provided that the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about that charge or by not giving a full opportunity of meeting ft and putting forward any defence open to him on the charge finally preferred against him. This view finds support from the case of Kantilal Chandulal Mehta V/s. State of Maharashtra (A.I.R. 1970 S.C. 355). Though in the present case we are concerned with the powers of the revisional court to amend or alter the charge, the principle of law was contained in his decision will, .in my view, apply to the present case also provided the facts of the present case will attract the provisions of law as contained in section 406 of the Indian Penal Code. In the present case, however, as has been noted above no case of criminal breach of trust as defined by section 405 of the Indian Penal Code appears to have been made out and, therefore, the inv pugned order cannot be sustained. 11. From the detailed discussions made above it becomes perfectly clear to me that the impugned order can not be allowed to stand. It is, accordingly, quashed. The order dated 10.3.1997 passed by the learned Judicial Magistrate is confirmed. Since the case has become too old the learned Magistrate is directed to dispose it of as early as possible.