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2007 DIGILAW 1035 (PAT)

Pabitra Chaudhary v. State Of Bihar

2007-06-01

INDU PRABHA SINGH

body2007
Judgment 1. This application filed under Sec. 482 of the Code of Criminal Procedure, 1973 (in short the Code) is directed against the order dated 23:2.2005 passed by the learned S.D.J.M., Bhagalpur in Complaint Case No. 1968 of 2004 issuing processes against the petitioners in a case under Sec. 498-A of the Indian Penal Code and also under Sections 3 and 4 of the Dowry Prohibition Act by opposite party no. 2. 2. From the facts of this case it would appear that opposite party no. 2 was married to petitioner no. 2 on 14.3.2000 and at the time of her marriage her parents had given ornaments to her. When she went to her Sasural her inlaws and other persons named in the complaint petition started torturing her for not bringing dowry and also obtained her signatures on blank sheets of paper. Thereafter the petitioners incited opposite party no. 2 to commit suicide and also tried to give poison to her. Opposite party no. 2 filed a complaint petition against the petitioners before the Chief Judicial Magistrate, Bhagalpur in which on 23.2.2005 an order was passed for the issuance of the process against them. It is against this order that the present application has been filed on the ground that the Court at Bhagalpur has got no jurisdiction to hear this matter and to issue the processes against the petitioners. 3. Opposite party no. 2 in her complaint petition has further alleged that when she came to her Naihar at Bhagalpur the accused persons still tortured her for dowry and enquiry under Sec. 202 of the Code was held in which also she supported her case. 4. The petitioners have contended that the learned S.D.J.M., Bhagalpurwas lacking in territorial jurisdiction in the matter and hence the impugned order passed by him is illegal. The Courts in the District of Maldah (West Bengal) will have the jurisdiction in the matter since the petitioners reside there and opposite party no. 2 also resided there with them. It has further been alleged that opposite party no. 2 never liked to stay at her Sasural and petitioner no. 2 has also filed a divorce suit against her. On these grounds it has been contented that the impugned order which is without jurisdiction should be quashed. 5. The parties have been heard at length in the matter. It has further been alleged that opposite party no. 2 never liked to stay at her Sasural and petitioner no. 2 has also filed a divorce suit against her. On these grounds it has been contented that the impugned order which is without jurisdiction should be quashed. 5. The parties have been heard at length in the matter. My attention has been drawn to Sec. 177 of the Code which runs as follows: "177. Ordinary place of inquiry and trial.Every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed." My attention has also been drawn to sub-section (c) of Sec. 178 of the Code which runs as follows: "(c) where an offence is a continuing one, and continues to be committed in more local areas than one." 6. It is not in dispute that opposite party no. 2 was married to Village Kendra Pokhar, P.S. Habibpur in the District of Maldah where the petitioner no. 2 her husband resided. It is also not in dispute that her Naihar falls in the District of Bhagalpur in the State of Bihar. Under the circumstances it has to be found out whether the Courts at Bhagalpur or at Maldah in West Bengal will have jurisdiction to try this case. 7. On behalf of the opposite party no. 2 it has been contended that her torture started at her Sasural and when she went to her Naihar there also the torture continued. In this connection my attention has been drawn to Annexure-1 which the complaint petition filed by her where the place of occurrence has been shown to be both her Maika and her Sasural. In this complaint petition opposite party no. 2 has clearly stated that petitioner no. 2 had demanded dowry even at Bhagalpur from her parents and pressurized her to secure the same. From this it would appear that there is clear allegation in the complaint petition that the demand of dowry had also taken place at Bhagalpur. 8. On behalf of the petitioners reliance has been placed in a case of Y. Abraham Ajith and Ors. vs. Inspector of Police, Chennai and another, 2004 (8) SCC 100 . In this decision from the facts it would appear that all the alleged offences had taken place at Nagercoil and none at Chennai. 8. On behalf of the petitioners reliance has been placed in a case of Y. Abraham Ajith and Ors. vs. Inspector of Police, Chennai and another, 2004 (8) SCC 100 . In this decision from the facts it would appear that all the alleged offences had taken place at Nagercoil and none at Chennai. It was further held that normally the general rule is that ordinarily every offence should be enquired into and tried by a Court within whose local jurisdiction it was committed. This rule is, however, subject to several exceptions and one of them is contained in Sec. 178(c) of the Code which provides that where the offence is a continuous one it must be continued to be committed in more local areas than one, then Courts of all those areas will have jurisdiction to try any such offence. In this case, however, no offence was committed at Chennai and, therefore, the Hon ble Supreme Court has held that this is not a case of continuing offence so as to attract the provision of Sec. 178(C) of the Code. 9. In this connection a reference may also be made to the case of Sujata Mukherjee (Smt) vs. Prashant Kumar Mukherjee, (1997)5 SCC 30 . In this case the offence was continued to be committed at the place of her parents where she came away from her Sasural. It was held that since the offence was a continuing one the Courts at her fathers place will also have jurisdiction to try the offence by virtue of Sec. 178(c) of the Code. 10. The question what could constitute a continuing offence had come up for consideration before the Hon ble Supreme Court in the case of State of Bihar vs. Deokaran Nenshi and another, (1972)2 SCC 890 . It paragraph no. 5 runs as follows: "5. A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that! such disobediance or non-compliance occurs and reoccurs, there is the offence committed. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that! such disobediance or non-compliance occurs and reoccurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and, therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all." 11. This definition of a continuing offence has been quoted with the approval by the Hon ble Supreme Court in the case of Manish Ratan and others vs. State of M.P. and Another, 2007(1) SCC 262 : 2006 (3) PCCR 362 (SC). 12. In this connection a reference may also be made to the case of Abdul Nazar Madani vs. State of T.N. and another, (2000)6 SCC 204 :2000 (2) PCCR 19 (SC). It was held by the Hon ble Supreme Court in this case that the purpose of criminal trial is fair and impartial justice uninfluenced by any thing. If it appears that was not possible impartially at any place dispensation of justice the appropriate Court may transfer the case to another Court where it feels that the trial would fair conducive to justice. 13. In the case of Mohan Baitha & Ors. vs. State of Bihar & Ors., 2001 (2) PLJR (SC) 83 : 2001 (1) PCCR 330 (SC) from the facts it would appear that F.I.R. was lodged at Bhagalpur under Sections 304-B and 406/34 of the Indian Penai Code on receiving a telephone call by the father of the victim that she died at Jahanaganj in U.P. while preparing milk for the child. It was held that in a given case indicating proximity of time, unity or proximity of place, continuity of action and continuity of purpose or design are the factors for deciding whether certain acts form parts of the same transactions or not. It was held that in a given case indicating proximity of time, unity or proximity of place, continuity of action and continuity of purpose or design are the factors for deciding whether certain acts form parts of the same transactions or not. Sec. 221 will be decided on these factors and Sec. 177 is, therefore not peremptory in nature nor a complete imbargo. 14. In a recent decision in the case Kunti Devi & Ors. vs. The State of Bihar, 2007(2) PUR 43 : 2007 (1) PCCR 194 (PHC) the learned Single Judge (Navin Sinha, J) has decided what is meant "ordinary courts in sec. 171" which according to him need not be limited to the special provision provided for by law. 15. In the case of Manish Ratan (supra) from the facts it would appear that the father- in-law of appellant no. 1 lodged the case at Jabalpur Police Station where the matrimonial home of the wife was located. The wife in her turn lodged the F.I.R. at Datia Police Station (M.P.). The incident had taken place at the house at Jabalpur. In this decision it was held that this was not a case of continuing offence since no occurrence is alleged to have taken place at Datia Police Station and, therefore, only Courts at Jawalpur will have jurisdiction accordance with Sec. 177 of the Code. This decision is, however, not applicable to the facts of the present case inasmuch as the alleged occurrence had taken place at Bhagalpur and was a continuing one. 16. From the detailed discussions made above it becomes clear that there is no merit in this application. The Courts at Bhagalpur will have jurisdiction to try this case. 17. In the result this application is dismissed.