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2006 DIGILAW 57 (GUJ)

M. P. SANJAY v. STATE OF GUAJARAT

2006-01-30

RAVI R.TRIPATHI

body2006
( 1 ) THE applicants/ petitioners have approached this Court with the prayer that this Honourable Court be pleased to quash the complaint registered as C. R. No. I-309 of 2005 with J. P. Road Police Station, Vadodara. The present application is filed on 16th November 2005. The matter was listed on Board on 18th November 2005 on an urgent note being filed by the learned advocate for the applicant. However, on that day, the learned advocate Mr. Raval was not present even during the second call. Therefore, the matter was adjourned to 25th November 2005. ( 2 ) ON 25th November 2005 the Court passed the following order:"notice returnable on 9th December 2005. Mrs. M. L. Shah waives service of notice on behalf of the respondent no. 1-State of Gujarat. In the meanwhile, further investigation in C. R. No. I- 309/2005 instituted at J. P. Road Police Station, baroda is stayed. Direct service so far as respondent no. 2 is concerned. " ( 3 ) ON 9th December 2005, the Court was pleased to issue fresh notice to respondent no. 2 returnable on 20th december 2005 and direct service was permitted. The matter was then listed before this Court on 20th December 2005. On 20th December 2005, when the matter was placed before this Court a request was made by the learned advocate Ms. Moksha Thakkar on behalf of Mr. A. R. Majmudar that as the learned advocate has received instructions to appear in the matter he may be granted adjournment beyond vacation. The request was granted and the interim relief was ordered to continue till further order. On 10th January 2006, the regular Court passed order to the effect that, "not before this Court. " the matter was listed before this Court on 20th January 2006, on which date the learned advocate Mr. Raval has filed sick note. The matter was adjourned to 23rd January 2006. On 23rd January 2006 the Court passed the following order: "as a last chance, the matter is adjourned to 30. 01. 2006. No further adjournment. " ( 4 ) ON 30th January 2006, Mr. Raval, the learned advocate appearing for the petitioner submitted that the matter deserves consideration in view of the facts of the case and as the law declared by the decision of the Honble the Apex Court in the matter of V. Abraham Vs. 01. 2006. No further adjournment. " ( 4 ) ON 30th January 2006, Mr. Raval, the learned advocate appearing for the petitioner submitted that the matter deserves consideration in view of the facts of the case and as the law declared by the decision of the Honble the Apex Court in the matter of V. Abraham Vs. Inspector of Police, Chennai and another, reported in 2005 (1) GLH 22 is applicable to the said facts. The learned advocate submitted that the Honble the Apex Court after taking into consideration the provisions of sections 177, 178 (c), 482 and 484 of the Code of Criminal Procedure, 1973 ("the Code" for brevity) is pleased to hold that,"it is settled law that cause of action consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise. " ( 5 ) THE learned advocate also invited attention of this court to the observations contained in para 16, which are as under:"the expression "cause of action" has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgement of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in "cause of action". ( 6 ) THE learned advocate for the petitioners invited attention of this Court to sections 177 and 178 of the code, which are quoted in the said judgement. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in "cause of action". ( 6 ) THE learned advocate for the petitioners invited attention of this Court to sections 177 and 178 of the code, which are quoted in the said judgement. ( 7 ) THE learned advocate for the petitioners also submitted that the present application praying for adding offence under sections 467, 471 filed on 14th November 2005 along with an application for remand, which was rejected, is only with a view to have a short cut to the civil remedy available to her. The learned advocate for the petitioner vehemently submitted that the allegations made in the complaint that the husband of the complainant and her parents in law had come to her parental home, somewhere in late-1998 and early-1999, even assuming to be true cannot be taken cognisance of as the offence committed is barred by period of limitation provided under subsec. (2) of section 468 of the Code of Criminal Procedure. The law provides, bar to take cognisance after lapse of the period of limitation. The learned advocate for the petitioners further submitted that it was only after the grant of regular bail to the present petitioners on 14th November 2005 that the aforesaid two applications were filed. He submitted that after the complaint was filed in September 2005, the petitioners had filed an anticipatory bail application before the learned Sessions Judge, but the same was rejected. The petitioners were constrained to approach this Court by filing application for anticipatory bail which was granted on 25th October 2005. The petitioners had appeared before the Police who released them on bail. Thereafter, they filed an application for regular bail which too was granted. He submitted that it was only thereafter that the aforesaid two applications were given. Besides, he submitted that on 28th November 2005, an application for custody of child is filed under section 25 of the Guardians and Wards Act. The learned advocate for the petitioners submitted that the child was residing at Chennai and has all along for pre-primary, Lower KG and Upper KG studied at Chennai. Except for one year, i. e. 2004-05, the child was at mumbai. The learned advocate for the petitioners submitted that the child was residing at Chennai and has all along for pre-primary, Lower KG and Upper KG studied at Chennai. Except for one year, i. e. 2004-05, the child was at mumbai. The learned advocate for the petitioners submitted that the allegations made in the compliant regarding the child being taken away from parental home at Vadodara in May 2005 are palpably false as in May 2005 the child was at Chennai and he was ill. There is medical certificate dated 28th May 2005 showing that the child was under treatment of a doctor for "chronic. . . " (the name of the disease is blank in Medical Certificate produced at Annexure b, Page 35 of the petition) since 20th to 28th May 2005. The submissions of the learned advocate for the petitioners are devoid of any merit/ substance. If the contents of the complaint are perused it is stated that, in the month of May 2005 when the complainant had come to her parental home at Vadodara, her husband had visited her parental home and had taken away the son, Varun for visiting grand parents of the child. The Medical certificate dated 28th May 2005 does not inspire any confidence as the name of the ailment is not mentioned in this certificate. This Court restrains itself from commenting further on the veracity of the said certificate as the matter is yet to be examined by the court trying the matter. But one thing can be said that only because there is certificate dated 28th May 2005 the contents of the complaint does not stand falsified and cognisance is required to be taken. So far as the period of limitation is concerned this is not the stage, the same can be taken care of by the learned Judge when contention in that regard is taken before the Court trying the matter. ( 8 ) THE learned advocate for the petitioners also invited attention of the Courts to sections 155 and 156 of the code of Criminal Procedure pertaining to jurisdiction of the Police Station. But then the same need not detain this Court any further in light of the discussion hereinbelow. ( 8 ) THE learned advocate for the petitioners also invited attention of the Courts to sections 155 and 156 of the code of Criminal Procedure pertaining to jurisdiction of the Police Station. But then the same need not detain this Court any further in light of the discussion hereinbelow. ( 9 ) THE learned advocate invited attention of this Court by reading, only selected lines from the compliant, which is registered as C. R. No. I-309 of 2005 with J. P. Road police Station, Vadodara. The attempt on the part of the learned advocate was to show that the cause of action accrued at Chennai only and if not only at Chennai, then at Mumbai, but in no case at Vadodara. In this regard the learned advocate also relied upon a decision of this court in the matter of Devindersingh Vs. (The) State of gujarat, 1997 (1) GLH (UJ) 7. ( 10 ) IN light of the submission made by the learned advocate for the petitioners and the decision of the honble the Apex Court in the matter of V. Abraham (supra), the learned advocate for the respondents was called upon to explain as to why the prayer sought for be not granted. ( 11 ) THE learned advocate Mr. Majmudar appearing for respondent no. 2-private respondent invited the attention of the Court to the remaining part of the F. I. R. (dated 2nd September 2005, which is registered as C. R. No. 309 of 2005 ). The learned advocate for the respondents read the relevant part of the said complaint wherein it is stated that the marriage of the complainant had taken place on 27th June 1997 at Chennai; that at the time of marriage parents of the complainant gave 950 grams of gold; that the complainant was residing with her husband, who was doing the business of computer; that she was comfortably kept for six months and thereafter, the husband started taking away the salary of the complainant and in addition to that he started torturing the complainant, asking the complainant to bring more money from her parents; that the parents in law were also residing with the complainant and they also told the complainant that she shall bring Rs. 20,000/- from her parents. During this period of torture which started on expiry of six months of marriage, the complainant became pregnant. 20,000/- from her parents. During this period of torture which started on expiry of six months of marriage, the complainant became pregnant. During her pregnancy also she was tortured, that too not only physically but also mentally. She was not given full diet. It is the case of the complainant that in August 1998 shrimant ceremony was to take place. Therefore, the complainant had come to her parental home. The parents house is situated at A/4, Mira Society, diwalipura. At her parents place, the complainant delivered a baby boy. After birth of the child, the husband and the parents in law had come to the place of the parents of the complainant. There they informed the complainant and the parents of the complainant that only if a sum of Rs. 3 lakhs is paid to them, then only the complainant will be taken to her matrimonial home. Then they left without taking the complainant to her matrimonial home. On expiry of leave the complainant reported for duty in march 1999 at Chennai. At Chennai she was residing in a quarter allotted to her by the Bank. There her husband used to visit, demand money and torture the complainant. After expiry of about nine months, the husband joined the complainant and started residing in the quarter. The complainant continued to give her salary to her husband only with a view to see that as she is already blessed with a son, her married life may not be spoiled. She also continued to undergo torture. That the gold given by the parents of the complainant was taken away without the knowledge of the complainant. That at that time the son was with the complainant. In June 2003 the complainant got transferred to Mumbai, where she was given Flat no. 183, Block No. 5/171, Damodar, ghatkopar, Mumbai. In 2004 the complainant brought her son to Mumbai. While she was at Mumbai, her husband visited her and demanded Rs. 25,000/ -. On the said amount not being paid, she was physically assaulted. That her credit card was also used by her husband and the amount of savings certificates was also spent by her husband. In May 2005, the complainant along with her son had come to her parental home at Vadodara. There, her husband on an excuse of taking the son to grand parents, took away her son. That her credit card was also used by her husband and the amount of savings certificates was also spent by her husband. In May 2005, the complainant along with her son had come to her parental home at Vadodara. There, her husband on an excuse of taking the son to grand parents, took away her son. Thereafter, the husband talked to her on telephone and demanded money, and when the complainant requested to allow her to talk to her son, she was threatened. ( 12 ) THE learned advocate for respondent no. 2 submitted that thus, it is clear from the aforesaid averments that part of cause of action can be said to have accrued at Vadodara and therefore, this is not a fit case in which relief as prayed for can be granted. ( 13 ) THE learned advocate for respondent no. 2 in support of his submissions relied upon the following decisions of various High Courts. i. K. C. Mathew and another Vs. Reena Paul, 1998 criminal Law Journal 2300 [kerala High Court]; ii. S. Faisal Nabi Vs. State of Madhya Pradesh, 2001 criminal Law Journal 1598 [madhya Pradesh High court]; iii. State of Madhya Pradesh Vs. Suresh Kaushal and another, 2001 (4) Scale 233 ; iv. Vijay Kumar Sharma and others Vs. State of U. P. , II 1991 (1) 298 [allahabad High Court]; v. R. T. Arasu and others Vs. State of U. P. And another, 1999 Criminal Law Journal 4113 [allahabad High court]. ( 14 ) LEARNED advocate for the respondent no. 2 next relied upon a decision of the Honble the Apex Court Court in the matter of Trisuns Chemical Industry Vs. Rajesh agarwal and others, reported in 1999 A. I. R. SCW 3492. The learned advocate invited attention of the Court to the relevant part of the judgement, wherein the Honble the apex Court is pleased to observe as under:"it is erroneous view that the Magistrate taking cognisance of an offence must necessarily have territorial jurisdiction to try the case as well. Chap. XIII of the Code relates to jurisdiction of the criminal Courts "in enquiries and trials". That chapter contains provisions regarding the place where the enquiry and trial are to take place. S. 177 says that "every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. Chap. XIII of the Code relates to jurisdiction of the criminal Courts "in enquiries and trials". That chapter contains provisions regarding the place where the enquiry and trial are to take place. S. 177 says that "every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. " But S. 179 says that when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the place of enquiry and trial can as well be in a Court "within whose local jurisdiction such thing has been done or such consequence has ensued". It cannot be overlooked that the said provisions do not trammel the powers of any Court to take cognisance of the offence. S. 193 imposes a restriction on the Court of Session to take cognisance of any offence as a Court of original jurisdiction. But "any" Magistrate of the First class has the power to take cognisance of any offence, no matter that the offence was committed within his jurisdiction or not. The only restriction contained in S. 190 is that the power to take cognisance is "subject to the provisions of this Chapter". There are 9 sections in Chap. XIV most of which contain one or other restriction imposed on the power of a first class magistrate in taking cognisance of an offence. But none of them incorporates any curtailment on such powers in relation to territorial barrier. The jurisdictional aspect becomes relevant only when the question of enquiry or trial arises. It is, therefore, a fallacious thinking that only a magistrate having jurisdiction to try the case has the power to take cognisance of the offence. If he is a Magistrate of the First Class his power to take cognisance of the offence is not impaired by territorial restrictions. After taking cognisance he may have to decide as to the Court which has jurisdiction to enquire into or try the offence and that situation would reach only during the post cognisance stage and not earlier. The High Court, without considering any of the aforesaid legal aspects rushed to the erroneous conclusion that the "judicial magistrate of first class, Gandhidham has no power to take cognisance of the offences alleged" merely because such offences could have been committed outside the territorial limits of the State of Gujarat. The High Court, without considering any of the aforesaid legal aspects rushed to the erroneous conclusion that the "judicial magistrate of first class, Gandhidham has no power to take cognisance of the offences alleged" merely because such offences could have been committed outside the territorial limits of the State of Gujarat. Even otherwise, without being apprised of the fuller conspectus a decision on the question of jurisdiction should not have been taken by the High Court at a grossly premature stage in a petition under s. 482 for quashing complaint. "the learned advocate next relied upon a decision of the honble the Apex Court in the matter of Satvinder Kaur vs. State (govt. of N. C. T. Of Delhi ) and another, reported in 1999 A. I. R. SCW 3607. The learned advocate relied upon the following observations of the Honble the apex Court :"fir cannot be quashed by High Court under S. 482 on ground that police station officer of particular police station (Delhi in instant case) was not having territorial jurisdiction to entertain and investigate the F. I. R. Lodged by the appellant because the alleged dowry items were entrusted to the respondent at Patiala and that the alleged cause of action for the offence punishable under S. 498a, IPC arose at Patiala. The appreciation of the evidence is the function of the Courts when seized of the matter. At the stage of investigation, the material collected by an Investigating Officer cannot be judicially scrutinised for arriving at a conclusion that police station officer of particular police station would not have territorial jurisdiction. In any case, it has to be stated that in view of s. 178 (c) of the criminal Procedure Code, when it is uncertain in which of the several local areas an offence was committed, or where it consists of several acts done in different local areas, the said offence can be inquired into or tried by a Court having jurisdiction over any of such local areas. Therefore, to say at the stage of investigation that S. H. O. , Police Station, New delhi was not having territorial jurisdiction, is on the face of it, illegal and erroneous. That apart, S. 156 (2) contains an embargo that no proceeding of a police officer shall be challenged on the ground that he has no territorial power to investigate. Therefore, to say at the stage of investigation that S. H. O. , Police Station, New delhi was not having territorial jurisdiction, is on the face of it, illegal and erroneous. That apart, S. 156 (2) contains an embargo that no proceeding of a police officer shall be challenged on the ground that he has no territorial power to investigate. " ( 15 ) IN view of the aforesaid discussion it is clear that a very calculated attempt is made by the husband and parents in law to frustrate the complaint of the wife, who is deprived of the custody of the child, aged 7 years. In the considered opinion of this Court, the matter does not have any merits, hence is rejected and it is rejected with cost. As the Court is of the opinion that it is a frivolous litigation causing avoidable burden on the time of the Court as well as the public exchequer, the cost is quantified at Rs. 15,000/- (Rupees fifteen thousand only ). Notice is discharged. Interim relief is vacated. .