Research › Search › Judgment

Gauhati High Court · body

2006 DIGILAW 70 (GAU)

Parashmoni Konwar v. Parimita Shyam Konwar

2006-01-18

P.G.AGARWAL

body2006
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. B.K. Mahajan, learned Counsel appearing on behalf of the Petitioners and Mr. B.K. Das, learned Counsel for the Respondent. 2. This is a dispute between the husband and wife and the Respondent wife Smti Parimita Shyam Konwar filed a complaint on 19.4.2004 before the Sub-Divisional Judicial Magistrate, Charaideo, Sonari stating inter alia that she was married to the Petitioner accused Parashmoni Konwar on 27.11.2003 and thereafter they lived as husband and wife at Guwahati. The complainant alleged commission of cruelty on her by the husband and husband's mother Smti Sonmai Konwar and it has been alleged that the two accused persons threatened to kill her and on 12.4.04 she left the company of the accused person and went to Sonari along with her mother and she is living at her mother's place. The said complaint was sent to police for investigation and thereafter police submitted charge sheet No. 97 dated 17.12.04 against the two accused persons Under Section498(A) IPC and the case is pending for trial before the Court of SDJM, Charaideo, Sonari. 3. This is an application Under Section 407 Code of Criminal Procedure for transferring the said case for trial at Guwahati solely on the ground that no cause of action has arisen at Sonari and in view of the provisions of Section 177 Code of Criminal Procedure, the case needs to be tried at Guwahati and it may be transferred to Guwahati. 4. The application for transfer has been objected by the Respondent complainant by stating inter alia that the she being a victim of cruelty by her husband and relations of the husband, she was forced to take shelter at her parents place at Sonari and as such it will cause immense hardship and inconvenience, if the case is tried at Guwahati. 5. In support of the above, the learned Counsel has placed reliance on a decision of this Court in the case of Bina Dey and Ors. v. Pratibha Dev reported in 2003 (3) GLT 659 wherein this Court observed as follows: It is therefore held that in an offence Under Section 498(A), IPC, the place where the wife is forced to take shelter has the jurisdiction to try the offence Under Section 498A, IPC. 6. v. Pratibha Dev reported in 2003 (3) GLT 659 wherein this Court observed as follows: It is therefore held that in an offence Under Section 498(A), IPC, the place where the wife is forced to take shelter has the jurisdiction to try the offence Under Section 498A, IPC. 6. However, we find that since the said judgment, the matter of jurisdiction Under Section 177, 178 Code of Criminal Procedure concerning the offence Under Section 498(A)/406 IPC has been considered by the Apex Court. 7. In the case of Y. Abraham Ajith and Ors. v. Inspector of Police, Chennai and Anr. reported in (2004) 8 SCC 100 , the Apex Court held as follows: The crucial question is whether any part of the cause of action arose within the jurisdiction of the Court concerned. In terms of Section 177 of the Code, it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused. While in civil cases, normally the expression "cause of action" is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression "cause of action" is, therefore, not a stranger to criminal case. 8. In the above case, the Apex Court applied the legal principles as enumerated therein and considering the factual scenario, the Apex Court held that as no part of cause of action arose in Chennai, therefore the Magistrate concerned had no jurisdiction to deal with the matter. 9. The principles laid down in Y. Abraham Ajit (supra) were reiterated in a later case of Ramesh and Ors. v. State of T.N. reported in (2005) 3 SCC 507 and it was held that the court is required to prove facts alleged in the complaint, whether any acts of alleged cruelty or part of the said act was committed at a place where the trial is sought to be held. v. State of T.N. reported in (2005) 3 SCC 507 and it was held that the court is required to prove facts alleged in the complaint, whether any acts of alleged cruelty or part of the said act was committed at a place where the trial is sought to be held. In the facts of the above case, the Apex Court further held that the alleged acts, which according to the Petitioner constitutes an offence Under Section 498(A)/406, were done by the accused partly in Mumbai and partly in Chennai, prima facie there is nothing in the entire complaint which goes to show that any of the acts constituting the alleged offences were at all committed at Trichy where the complaint was filed. 10. In view of the above proposition of law, the question of territorial jurisdiction Under Section 177 Code of Criminal Procedure is required to be examined, on the basis of the broad facts disclosed in the complaint or the FIR as the case may be. The courts having jurisdiction over the place where the alleged acts of cruelty have taken place or a part of the acts of cruelty has taken place shall have the territorial jurisdiction to try the case. 11. We have perused the complaint petition wherein the allegation of cruelty is mentioned when the complainant was staying at Guwahati in her in-law's place and she left the matrimonial home on 12.4.04 and since then she is staying at Sonari. Although the offence Under Section 498(A) IPC is a continuing offence, the complainant has not alleged that any part of the alleged cruelty was committed at Sonari. Learned Counsel for the Respondent has submitted that the accused has not gone to Sonari to commit any cruelty as the FIR was filed within seven days of her leaving the matrimonial home at Guwahati. 12. As no part of cause of action has resulted at Sonari, we hold that the court at Sonari had no jurisdiction to try the case. The Petitioners have not come up with an application for quashing of the complaint and only sought for transfer of the case Under Section 407 Code of Criminal Procedure. 12. As no part of cause of action has resulted at Sonari, we hold that the court at Sonari had no jurisdiction to try the case. The Petitioners have not come up with an application for quashing of the complaint and only sought for transfer of the case Under Section 407 Code of Criminal Procedure. As the investigation has already been completed and the matter is pending for trial only, on consideration of the submission made, we allow this transfer petition and provide that the Criminal case namely GR Case No. 134/04 pending before the SDJM, Charaideo, Sonari shall be tried by the Chief Judicial Magistrate, Kamrup, Guwahati or any other competent court to which it is assigned by the Chief Judicial Magistrate, Kamrup, Guwahati. 13. Direct SDJM, Charaideo, Sonari to transmit the said records to the court of Chief Judicial Magistrate, Kamrup, Guwahati. In the above GR Case, the Respondent complainant is not required to attend the court at Guwahati on each and every date of hearing. The Petitioners are directed to appear before the Chief Judicial Magistrate, Kamrup, Guwahati on 27.2.2006. 14. In the result, the transfer petition is allowed. Petition allowed