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2007 DIGILAW 207 (CAL)

SHIPRA RAJ ROY v. STATE OF WEST BENGAL

2007-03-22

PRAVENDU NARAYAN SINHA

body2007
( 1 ) THE petitioner has preferred the instant revisional application under section 482 of the Code of Criminal Procedure (in short the Code) praying for quashing the criminal proceeding being G. R. Case No. 185 of 2006 arising out of Durgapur New Township Police Station (in short N. T. P. S.) Case No. 22 of 2006 dated 1. 3. 06 under Sections 498a/406/420/506/34 of the Indian Penal code (in short the. P. C.) now pending in the Court of the learned Additional chief Judicial Magistrate (in short the ACJM), Durgapur. ( 2 ) MR. Sudipto Moitra, the learned Advocate appearing for the petitioner submitted that offence under Section 406 of the. P. C. is not a continuing offence. Elements of Section 406 of the. P. C. starts from entrustment and in the FIR lodged by the informant/o. P. No. 2 it was only stated that during marriage complainant's father gave 41 bhories of gold ornaments and other things as per list and at the time of marriage the relatives of the complainant handed over those things to the accused person. Mr. Moitra submitted that this averment in the FIR does not attract elements of Section 406 of the. P. C. as it fails to establish proper entrustment. In the marriage besides the parents, other relatives, guests and friends offer gifts. The FIR reveals that after the marriage ceremony was over the accused persons and the informant went to mumbai and it does not establish entrustment as the wife herself accompanied the accused persons to Mumba. There was no averment in the FIR that on demand the petitioner and other accused persons refused to return the 'stridhan' articles or converted the same to their own use. ( 3 ) MR. Moitra further submitted that a plain reading of the FIR without adding anything to it or subtracting anything from it would reveal clearly that it is a vires of Section 498a of the. P. C. The FIR reveals that the entire incident relating to torture on the wife demanding dowry took place at Mumbai in the flat of accused persons. Moitra further submitted that a plain reading of the FIR without adding anything to it or subtracting anything from it would reveal clearly that it is a vires of Section 498a of the. P. C. The FIR reveals that the entire incident relating to torture on the wife demanding dowry took place at Mumbai in the flat of accused persons. The entire cause of action arose within the jurisdiction of the Mumbai Court and the learned Magistrate of Durgapur is not empowered to take cognizance of the offence and the learned Magistrate of Durgapur was not even competent to sent the written complaint to the concerned O. C. for investigation under Section 156 (3} of the Code treating the complaint as FIR. It was not a FIR under Section 154 of the Code and the languages of Section 156 (3) of the Code are different from the language of Section 154 of the Code. As the entire incident, took place within the jurisdiction of Mumbai Court, the learned Magistrate of Durgapur was not at all competent to direct the concerned police officer of Durgapur N. T. P. S. to cause investigation. ( 4 ) MR. Moitra next contended that there was no injury on the wife and there was no injury report. O. P. No. 2 made no attempt to take hack her child. All the witnesses are the relatives of informant and her parents and they are all men of Durgapur. The entire incident of alleged torture on the wife took place in the matrimonial home at Mumba. Accordingly, continuation of the criminal proceeding in the Court of the learned ACJM at Durgapur is an abuse of the process of law and it should be quashed. In support of his contention mr. Moitra cited the decisions in Y. Abraham Ajith v. Inspector of Police, Chennai reported in 2004 C Cr LR (SC) 972, Ramesh v. State of Tamil Nadu reported in (2005)1 Crimes 366 (SC) : (2005)1 C Cr LR (SC) 617, Gurmeet v. State of m. P. reported in (2006)2 Crimes 188 (Madhya Pradesh), Anil Kumar Saxena v. State of Chhattisgarh reported in (2006)3 Crimes 487 (Chhattisgarh) and subal Sarkar v. Smt. Purabi Sarkar (Das) reported in (2006)3 BCCR (OHC) 61. ( 5 ) MRS. Krishna Ghosh, the learned Advocate appearing for the State submitted that, from the case diary sufficient materials of Section 498a of the. ( 5 ) MRS. Krishna Ghosh, the learned Advocate appearing for the State submitted that, from the case diary sufficient materials of Section 498a of the. P. C. have been well established. It has also been established that during, marriage various kinds of articles and gold ornaments worth of 41 bhories were given to the bridegroom party and the said articles were taken away to mumbai by the petitioner and other accused persons. The accused persons drove out the O. P, No. 2 from her matrimonial home but did not return her 'stridhan' articles. There are sufficient materials to show establishment of elements of offence under Section 406 of the. P. C. The subsequent conduct of the accused persons also play vital role in this case as till date none of them appeared before the Magistrate and they are absconding. During investigation sufficient materials of all the offences alleged have been established and this is not at all a fit case to quash the criminal proceeding and investigation. ( 6 ) MR. Joymalya Bagchi, the learned Advocate appearing for the de facto complainant/o. P. No. 2 made submission that para 2 of the FIR is very important as it reveals that during marriage father of the informant gave 41 bhories of gold ornaments and other things as per list and at the time of marriage the relatives of the complainant handed over those things to the accused persons. In paragraph 4 of the FIR it was specifically mentioned that after the 'boubhat' ceremony was over the accused persons along with the complainant and all 'stridhan' properties went to the house of the accused persons at kanakia, Beverly Park, Mumba. In paragraph 14 of the FIR it was mentioned that on 17. 1,06 the accused persons assaulted the de facto complainant and drove her out of her matrimonial home and snatched away her son. The complainant in one cloth and bare footed was compelled to take shelter at the house of one family friend of the accused persons at Mumbai and, thereafter, her parents on receipt of such information came to Mumbai and took her away to Durgapur. Provisions of Section 179 of the Code are applicable in the present matter which is relevant for consideration on the point of jurisdiction of the court in enquiries and trial. Provisions of Section 179 of the Code are applicable in the present matter which is relevant for consideration on the point of jurisdiction of the court in enquiries and trial. According to Section 179 of the Code when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been clone or such consequence has ensued. According to Mr. Bagchi though the incident took place at Mumbai and the informant was assaulted at Mumbai its consequence is still continuing and it continued upto Durgapur where the victim was examined by a doctor. ( 7 ) MR. Bagchi contended that the Supreme Court in Pratibha Rani v. Suraj Kumar reported in 1985 SCC (Cr) 180 held that a Hindu married woman is the absolute owner of her 'stridhan' property. The husband has no right or interest in it. The Supreme Court also indicated that when a newly married wife comes to her husband's house with 'stridhan' articles, the husband or the other in-laws may keep the 'stridhan' articles in their possession but that does not make them owner of such property. Such 'stridhan' remains the exclusive property of the wife and the husband and other in-laws are bound to return 'stridhan' articles to her. If the husband and other in-laws refuses to return the 'stridhan' articles or misappropriates the 'stridhan' properties of the wife, though kept in their custody, that would not bar prosecution under Section 406 of the. P. C. Mr. Bagchi contended that the Supreme Court reiterated the same views in a subsequent decision in Rashmi Kumar (Smt.) v. Mahesh Kumar Vhada reported in 1997 SCC (Cr) 415 wherein the Supreme Court laid down that the properties gifted to the bride before the marriage, at the time of marriage, or at the time of giving farewell, or thereafter are her 'stridhan' properties and wife is the absolute owner of 'stridhan' property and 'stridhan' property is not the joint property of wife and husband. ( 8 ) MR. Bagchi next submitted that in a matrimonial matter the entrustment cannot be like other entrustments between two persons or between two businessmen. ( 8 ) MR. Bagchi next submitted that in a matrimonial matter the entrustment cannot be like other entrustments between two persons or between two businessmen. It is our custom that during marriage articles are given to the wife by her parents as well as relatives and friends arid those articles are taken away to her matrimonial home when she leaves for her new home with her husband. In a matrimonial matter specific entrustment of property is not sine qua non like other entrustments to attract elements of Sections 405 and 406 of the. P. C. Section 181 sub-clause (4) read with Section 184 of the Code would make it clear that the Durgapur Court has the jurisdiction of enquiry as well as trial. According to Section 181 (4) of the Code any offence of Criminal misappropriation or criminal breach of trust may be enquired 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. The 'stridhan' articles were given or entrusted to the accused persons at Durgapur which they took away at Murnba. After the accused persons drove out the de facto complainant after assault from her matrimonial home she was taken to durgapur by her parents and was examined by doctor at Durgapur. These instances clearly show that part of incident took place at Durgapur and consequence of the Act done at Mumbai by the accused persons continued at durgapur. The Durgapur Court accordingly has the jurisdiction in the matter of investigation and trial. ( 9 ) MR. Bagchi further submitted that the stage is now very premature. The investigation is still in progress and has not been concluded. Charge- sheet has not yet been submitted. Elements of cruelty at her parental home is also there in the FIR. All the decisions cited on behalf of the petitioner are all concerning post cognizance matter and such decisions are not applicable in the instant case. The FIR discloses prima facie elements of cognizable offence and there is no ground at all to quash the criminal proceeding. In support of his contention Mr. All the decisions cited on behalf of the petitioner are all concerning post cognizance matter and such decisions are not applicable in the instant case. The FIR discloses prima facie elements of cognizable offence and there is no ground at all to quash the criminal proceeding. In support of his contention Mr. Bagchi cited the decisions in Rajesh Bajaj v. State NCT of delhi reported in JT (1999)2 SC 112 : 1999 C Cr LR (SC) 234 and M. Krishnan v. Vijay Singh reported in 2002 SCC (Cr) 19. ( 10 ) BEFORE I proceed to enter into the merit of the revisional application i think it fruitful to mention in brief the facts disclosed in the FIR. The written complaint was lodged by the de facto complainant/o. P. No. 2 in the Court of the learned ACJM, Durgapur on 30. 1. 06 in which she made a prayer for sending the complaint to the O. C. , N. T. P. S. for investigation under Section 156 (3) of the Code treating the complaint as FIR. It was mentioned in the FIR that she was married with Debasish Raj Roy which was solemnised on 24. 7. 03 in a marriage hall at Bidhannagar of Durgapur. In the marriage her father gave 41 bhories of gold ornaments and other things and at the time of marriage the relatives of the complainant handed over those things to the accused person. After the marriage the 'boubhat1 ceremony was also performed at Durgapur and thereafter the accused persons along with the complainant and all 'stridhan' properties went to the house of accused persons at Beverly Park, Mumba. Few days after marriage the accused persons expressed their dissatisfaction about the quality of the dowry articles and told the complainant to bring money from her father otherwise she would have to do all the household works. During pregnancy of the complainant the accused person demanded Rs. 40. 000/- from the father of the complainant to meet the expenses for the delivery and, when her father expressed his inability to pay such amount she was physically and mentally tortured by the accused persons. She was not allowed to talk with her parents over phone nor was allowed to receive telephones of her parents. She was physically assaulted by the accused persons on several occasions and was denied proper medical treatment. She was not allowed to talk with her parents over phone nor was allowed to receive telephones of her parents. She was physically assaulted by the accused persons on several occasions and was denied proper medical treatment. The accused persons even made attempt to cut her vein and she was injured and when she was brought before a doctor she was threatened with murder if she disclosed the real incident to the doctor and was told to state the doctor that the injury was caused at the time of cutting fish. The accused persons thereafter asked her to bring Rs. 10 lakhs from her parents for purchasing a flat which she refused. The accused person even tried to establish her as mad. The complainant on 15. 11. 05 came to know that her husband is a divorcee and suppressing that fact the accused persons negotiated marriage with her. On 17. 1. 06 the accused persons assaulted her and drove her out of her matrimonial home taking away her minor son. She was compelled to take shelter at the house of one family friend of the accused persons and the matter was reported to her parents over telephone. Subsequently, her parents rushed to Mumbai and took away her to durgapur. She went to the N. T. P. S. on 27. 1. 06 to inform the matter but she was advised to file a complaint and accordingly the written complaint was filed in the Court of the learned ACJM which was sent to the concerned N. T. P. S, for investigation under Section 156 (3) of the Code. On the basis of such complaint Durgapur N. T. P. S. Case No. 22 dated 1. 3. 06 under Sections 498a/ 406/420/506/34 of the. P. C. was registered against this petitioner and other accused persons. ( 11 ) A plain reading of the averments of the FIR clearly reveals that the fir discloses prima facie materials of cognizable offence. Keeping in mind the principle of law in such matter laid down by the Hon'ble Apex Court in R. P. Kapoor v. State of Punjab, AIR 1960 SC 866 ; State of Karnataka v. M. Devendrappa, 2002 SCC (Cr) 539 : 2002 C Cr LR (SC) 324 ; M. Narayaudas v. State of Karnataka, 2004 SCC (Cr) 118; Sfate of Haryana v. Bhajan Lal and ors. reported in 1992 SCC (Cr) 426 decisions I am of opinion that it is not such a case where FIR does not disclose prima facie materials of cognizable offence. The averments of FIR cannot be regarded as absurd or inherently improbable. Accordingly, there is no material to quash the FIR as FIR discloses prima facie materials of cognisable offence. ( 12 ) IN spite of that, carefully considering the submissions of the learned advocates for the parties and perusing the contents of the revisional application, the FIR, the materials in case diary and materials on record and the decisions cited by the learned Advocates for the parties, I am unable to agree with the views of Mr. Bagchi that the learned Magistrate of Durgapur has the jurisdiction to proceed with investigation and trial in the case. In a case of such nature which discloses that the entire incident or the cause of action arose at Mumbai, the aid of Sections 179, 181 (4) and 184 of the Code cannot be invoked for the exercise of jurisdiction of the Court of the learned Magistrate at Durgapur for the purpose of investigation and trial. Entire elements of Section 498a of. P. C. , if any, as well as Section 406 of. P. C. , if any, occurred within the jurisdiction of Mumbai Court. If jurisdiction of Durgapur Court is invoked with the aid of sections 179 and 181 (4) of the Code it would have far reaching consequences. Anybody in order to harass a person may lodge complaint in any part of this vast country, if it is construed that provisions of Sections 179 and 181 (4} of the code empowers a Magistrate of a particular area in the matter of investigation and trial though, in fact, the entire incident took place in a different area beyond the territorial jurisdiction of the said Magistrate. ( 13 ) IN this connection law is well settled in view of the guidelines laid down by the Hon'ble Apex Court and other High Courts. In Y. Abraham Ajith v. Inspector of Police, Chennai (supra) the Supreme Court discussed the scope of provisions of Sections 177, 178, 482 and 484 of the Code in respect, of offence under Sections 498a and 406 of the. In Y. Abraham Ajith v. Inspector of Police, Chennai (supra) the Supreme Court discussed the scope of provisions of Sections 177, 178, 482 and 484 of the Code in respect, of offence under Sections 498a and 406 of the. P. C. In that reported decision the complainant respondent no, 2 filed the complaint in the Court of the metropolitan Magistrate, Chennai alleging commission of offence punishable under Sections 498a and 406 of the. P. C. and under Section 4 of the Dowry prohibition Ad, 1961 on the basis of which after investigation charge-sheet was submitted by police. The appellants who were the accused persons moved the High Court under Section 482 of the Code challenging jurisdiction of the magistrate to entertain the complaint on the ground that the incident allegedly took place during the stay of the complainant at Nagercoil and thereafter the complainant came to Chennai where she was staying. It was urged that as no part of the cause of action arose within the jurisdiction of the Metropolitan magistrate, Chennai the case was not maintainable. The High Court did not consider the points raised by the respective parties and refused to quash the proceeding. The appellants thereafter moved the Hon'ble Apex Court. It was held by the Hon'ble Apex Court that, "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 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. . . . . . . . . . . . . . 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. " The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts. . . . . . . . . . . . . . . . . . . . . In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts. . . . . . . . . . . . . . . . . . . . . When the aforesaid legal principles are applied, to the factual scenario disclosed by the complainant in the complaint petition, the inevitable conclusion is that no part of cause of action arose in Chennai and, therefore, the concerned Magistrate had no jurisdiction to deal with the matter. " ( 14 ) IN a similar situation in a subsequent decision in Ramesh v. State of Tamil Nadu (supra) the Hon'ble Apex Court reiterated the same view. In this reported decision the complaint was lodged under Sections 498a and 406 of the. P. C. read with Sections 3 and 4 of the Dowry Prohibition Act. The facts disclosed that the petitioner was the married sister of informant's husband who was living in Delhi with her family. The informant lived in Mumbai in her matrimonial home when the petitioner stayed with them for some time. The fir was lodged at Tiruchirapally where the learned Magistrate took cognizance of offence. As it was found that the informant-complainant had lived in Mumbai in matrimonial house where acts of cruelty were allegedly committed against her the offences alleged could not be said to have been committed wholly or partly within the local jurisdiction of Magistrate's Court at Trich. Alleged one incident taking part in a hotel at Chennai would not invoke the jurisdiction of the Magistrate at Tiruchirapally. ( 15 ) IN Gurmeet v. State of M. P. (supra), Anil Kumar Saxena v. State of chhattisgarh (supra) and Subal Sarkar v. Smt. Purabi Sarkar (Das) (supra) facts and circumstances were identical. In Gurmeetv. State of M. P. (supra) a complaint was lodged under Sections 498a and 506 of the. P. C. against husband at Indore. It was found that act of cruelly as alleged was committed at asansole and not at Indore. Complainant wife was forced to live her matrimonial home on account of failure to fulfil demand of dowry and started residing at indore. It was held that logic of Section 178 (c) of the Code was inapplicable and the indore Court had no jurisdiction to proceed with the trial. Complainant wife was forced to live her matrimonial home on account of failure to fulfil demand of dowry and started residing at indore. It was held that logic of Section 178 (c) of the Code was inapplicable and the indore Court had no jurisdiction to proceed with the trial. In Anil Kumar saxena v. State of Chhattisgarh (supra) the complaint was lodged under Section 498a of the. P. C, against the husband and other in-laws by the complainant wife. The offence was registered at Kawardha. It was found that after marriage the complainant, resided in her matrimonial home at Bilaspur and thereafter leaving matrimonial home went to her parents house at Kawardha and there she lodged the complaint. All the allegations about cruelty took place in her in- laws house at Bilaspur. It was held that Court at Kawardha had no jurisdiction to try offence under Section 498a with the aid of Sections 177 and 178 of the code. In Subal Sarkarv. Smt. Purabi Sarkar (Das) (supra) the complaint was lodged against the husband and other in-laws under Section 498a of the. P. C. in the Court at South Tripura district. The entire incident of torture took place in her matrimonial home at West Tripura district. There was nothing to show that any of the alleged acts of physical and mental torture had taken place within the jurisdiction of South Tripura district. It was held that the Court of South tripura district had no jurisdiction to entertain the complaint. ( 16 ) IN the present matter after going through the FIR and the materials collected during investigation as it appears from the case diary, I find that the entire incident of alleged physical and mental torture demanding dowry had taken place in the matrimonial home of complainant at Mumbai and no part of incident took place within the jurisdiction of Durgapur Court. One line in FIR that, "at the time of marriage the relatives of the complainant handed over those things to the accused persons" is not sufficient at all to invoke the jurisdiction of the learned Magistrate at Durgapur to proceed with the investigation and trial of this case. Entire cause of action, if any, under Sections 498a/406 of the. P. C. and other sections took place within the jurisdiction of mumbai Court. Entire cause of action, if any, under Sections 498a/406 of the. P. C. and other sections took place within the jurisdiction of mumbai Court. Keeping in mind the aforesaid principles of law the inevitable conclusion is that as no incident of mental and physical torture demanding dowry as well as incident of alleged other offence took place within the jurisdiction of Durgapur Court the said Court, has no jurisdiction to entertain the complaint. Entire incident of alleged physical and mental torture took place in the matrimonial home of complainant at Mumbai and in this matter the Court, at Mumbai has the jurisdiction to entertain the complaint. ( 17 ) FOR the aforesaid reasons the criminal proceeding cannot be allowed to continue, in the Court of the learned ACJM, Durgapur. The learned magistrate at Durgapur has no jurisdiction to entertain the complaint/fir and to proceed with the matter of investigation. The proceeding being G. R. Case no. 185 of 2006 arising out of N. T. P. S. Case No. 22 dated 1. 3. 06 under Sections 498a/406/420/506 of the. P. C. now pending in the Court of the learned ACJM, durgapur is hereby quashed. The learned ACJM, Durgapur should return the complaint/fir to the complainant O. P. No. 2, and if she chooses she may file the same in the appropriate Court to be dealt with in accordance with law. The revisional application is accordingly succeeds and is allowed. .