Research › Search › Judgment

Madhya Pradesh High Court · body

2005 DIGILAW 939 (MP)

Mahd. Naar Alam v. Nikhat Pharjana

2005-09-01

U.C.MAHESHWARI

body2005
JUDGMENT Petitioners/accused has directed this petition u/s 482 CrPC for quashment of the proceedings of criminal trial No. 1102/98 pending in the Court of Judicial Magistrate, First Class, Bhopal. Petitioner No. 1 got married with respondent on dated 4.4.1996 at Bhopal and thereafter they lived in the parental home of petitioners at Islampura Padati, Railway Station: Ghosi Maunat Bhanjan, PS Ghosi District Mau (U.P.). It is alleged in the complaint filed by respondent that at the time of marriage the ornaments, other articles and house hold goods were given by parents and relatives of the complainant. The same were taken by petitioners as Stridhan Sampatti of the complainant. It is also alleged that from the very inception of the marriage petitioners have been demanding additional dowry and on non-fulfilment of such demand she was mal-treated. As per other averments of the complaint all these incidents regarding cruelty had taken place at the matrimonial home, in the aforesaid village of Uttar Pradesh not at Bhopal (MP). The aforesaid complaint was filed by non-applicant for taking over the cognizance u/s 406 and 498A of IPC in the Court of Judicial Magistrate First Class, Bhopal by which the cognizance was taken against the petitioners under the aforesaid sections. The contents of the petitioners are that the incident regarding cruelty and breach of trust both or any of it had not taken place at Bhopal as per complaint itself then the Bhopal Court had no jurisdiction to entertain the complaint for taking cognizance against the petitioners. In view of alleged allegation the Court of Uttar Pradesh had jurisdiction to entertain such complaint subject to availability of ingredients of alleged offences. Counsel for petitioners submitted that mere perusing the entire complaint it reveals that the alleged incident regarding cruelty had taken place only at matrimonial home. The residence of the petitioners at their village in Uttar Pradesh and not at Bhopal. The marriage ceremony was performed at Bhopal where as alleged articles and the other things had been entrusted to petitioners and the same were taken to matrimonial home, the village of petitioners. The demand for returning the same was made at Uttar Pradesh, as per averments of the complaint. Thus, by virtue of section 177 CrPC the Bhopal Court has no jurisdiction to entertain the complaint in any manner. The demand for returning the same was made at Uttar Pradesh, as per averments of the complaint. Thus, by virtue of section 177 CrPC the Bhopal Court has no jurisdiction to entertain the complaint in any manner. He supported his submission by the dictum of Apex Court in the case of Surjit Singh v. Nahar Ram and another of the Supreme Court reported in 2004 L.T (SC) (118) and in the case of Pratibharani v. Suraj Kumar reported in AIR 1985 SC 628 and prayed for quashment of the trial. While, on other hand, Shri S. Jaisani, the counsel for respondent complainant, has submitted that although all articles were taken to Uttar Pradesh but the same were entrusted and handed over to petitioners at Bhopal. The ingredients of breach of trust and place of the offence specifically would be proved at the stage of trial but at the initial stage for the purpose of taking over the cognizance in the matter the Bhopal Court has jurisdiction because the aforesaid goods, articles and valuables were entrusted or handed over to the petitioners at Bhopal. In support of his submission he referred section 181 (4) of the Criminal Procedure Code and also cited the decided case of this Court in the matter of Gopal Rao v. Baldeo 1960 MPLJ Note 180 and prayed for dismissal of this petition. Having heard the learned counsels for the parties on perusing the annexures as available on record, it appears from the complaint that alleged articles were entrusted and handed over on solemnization of marriage at Bhopal and same had been taken to Uttar Pradesh at the matrimonial house of the respondent where the alleged offence of cruelty was also committed with the respondent. The allegations regarding cruelty as mentioned in the complaint took place at matrimonial home in Uttar Pradesh then certainly in view of the aforesaid decisions of the Supreme Court "Surjit Singh" (supra) the Bhopal· Court has no jurisdiction to take the cognizance for the offence of cruelty i.e. 498A IPC. But so far as offence of section 406 IPC the breach of trust is concerned, the Bhopal Court has jurisdiction to entertain the complaint if other circumstances are prima facie proved by admissible evidence because the Court of either place Bhopal or Uttar Pradesh had jurisdiction as per provision of section 181 (4) CrPC which says as under: "181. But so far as offence of section 406 IPC the breach of trust is concerned, the Bhopal Court has jurisdiction to entertain the complaint if other circumstances are prima facie proved by admissible evidence because the Court of either place Bhopal or Uttar Pradesh had jurisdiction as per provision of section 181 (4) CrPC which says as under: "181. Place of trial in case of certain offences. (4). Any offence of criminal misappropriation or of criminal breah of trust may be inquired into or tried by a Court within whose local 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 person." The case of the apex Court as cited by petitioner AIR 1985 SC 628 (Supra) in such matter the section 181 (4) CrPC was not considered and therefore on this point this reported case is distinguishable. While the Bhopal Court is having the jurisdiction as per decided case of this Court in the matter of Gopal Rao v. Baldeo reported in 1960 MPLJ Note 180 in which it was held as under: "It is not essential under sub-section (2) of section 181, Criminal Procedure Code that at the time property is said to have been received or retained by the accused person, he must have a dishonest intention to misappropriate it or to commit criminal breach of trust in respect thereof. It is enough if the property which is the subject of the offence was received or retained by the accused at a particular place to give jurisdiction to the Magistrate of that place to try the case, even though the property was received lawfully and innocently at that place and was subsequently dealt with dishonestly at another place. AIR 1954 All. 648 and AIR 1927 Born. 38." In view of the aforesaid, the Bhopal Court has jurisdiction to entertain the matter for cognizance u/s. 406 IPC. But so far the cognizance under section 498A of IPC is concerned, the complaint is not maintainable in such Court. Thus, this petition is partly allowed. AIR 1954 All. 648 and AIR 1927 Born. 38." In view of the aforesaid, the Bhopal Court has jurisdiction to entertain the matter for cognizance u/s. 406 IPC. But so far the cognizance under section 498A of IPC is concerned, the complaint is not maintainable in such Court. Thus, this petition is partly allowed. The cognizance as taken by the trial Court u/s 498A of IPC, is hereby set aside while cognizance u/s 406 IPC could be affirmed subject to following compliances: I have not found any averments in the impugned order which shows that any statement of complainant or his witnesses have been recorded u/s 200 and 202 CrPC before passing the impugned order for cognizance or any police report was called and considered by the trial Court as per provisions of section 156 CrPC, thus, the cognizance U/s 406 IPC as taken by the trial Court could not be affirmed outright, thus, the trial Court is directed to reconsider the matter and pass the appropriate speaking order by considering the primafacie evidence adduced by the complainant and her witnesses. If the impugned order was passed after considering the aforesaid evidence and provision then, the trial Court shall proceed further only u/s 406 IPC and said reconsideration would not be required, as such, this order shall not influence the trial and proceedings u/s 406 IPC. Petition is allowed in part as intended above.