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2007 DIGILAW 39 (JK)

S. Karan Singh Sodhi v. Jatender Jeet Kour

2007-04-04

MANSOOR AHMAD MIR

body2007
1. Complaint under Section 494, 497 read with 109 of Ranbir Penal Code ( for short "the Code")PC came to be filed in the court of Chief Judicial Magistrate, Jammu by one Jatender Jeet Kour respondent no. 1 herein against petitioners and proforma respondents. It has been averred in the complaint that complainant- Jatender Jeet Kour and Tejveer Sodi respondent no. 2 contracted marriage in the year 2002 at Jammu according to Sikh Customs and Rights and were living thereafter as husband and wife at Baramulla and have given birth to a male child namely Aneesh Singh. Accused no. 1 and other accused 3, 4, 5 and 6 petitioners herein harassed the complainant and made demands of dowry subjected her to torture and afterwards turned out her from matrimonial house alongwith her minor child. She at present is residing with her parents at Jammu. It has been further alleged that accused no. 1/ respondent no. 2 has contracted second marriage with accused no.2 /respondent no. 3 during the subsistence of first marriage between complainant and accused no. 1 and other accused abetted them. It appears that trial court- Chief Judicial Magistrate, Jammu recorded a preliminary statement of complaint and witness Mohan Singh. In their preliminary statements they have supported the allegations contained in the complaint. In preliminary statement Mohan Singh has stated that accused/respondents no. 2 and 3 have contracted marriage at Baramulla and are living as husband and wife at Baramulla. The complainant has also deposed in her statement that accused respondent no. 2 and 3 have contracted second marriage at Baramulla and are living at Baramulla. The trial Court has drawn cognizance vide order dated 8.6.2005 and has issued process under Section 494 read with 109 RPC. Petitioners-accused have by the medium of this petition prayed that complaint and the proceedings drawn and order passed be quashed on the ground that Chief Judicial Magistrate Jammu and other Courts at Jammu are not having territorial jurisdiction to try the complaint. 2. Heard. The question is which marriage constitute the offence punishable under section 494 RPC. In terms of Section 494 RPC performing / contracting the second marriage during the subsistence of first valid marriage is the offence. The court within whose jurisdiction, the second marriage is performed is having the jurisdiction to try the case in terms of Section 177 of Criminal Procedure Code ( in short "the Code"). In terms of Section 494 RPC performing / contracting the second marriage during the subsistence of first valid marriage is the offence. The court within whose jurisdiction, the second marriage is performed is having the jurisdiction to try the case in terms of Section 177 of Criminal Procedure Code ( in short "the Code"). This provision of law lays down the general principles as regards the jurisdiction of the court. Every offence shall ordinarily be enquired into and tried by a Court within the local limits of whose jurisdiction it was committed. Admittedly offence under Section 494 RPC is the second marriage. As discussed herein above the second marriage has been contracted al Baramulla, as alleged. Thus, Baramulla Court is having the jurisdiction to try the complaint. This Court in case Nend Lal vs. Sudesh Kumari reported in 1989 SLJ page 103 has taken the same view. 3. Apex Court in a case Y. Abraham Ajith v. Inspector of Police, Chennai reported in AIR 2004 SC 4286 defined what does the words "Cause of action" mean. 4. The Apex Court in case S. Nagalingam v. Sivagami reported in AIR 2001 SC 3576 held that contracting second marriage during the subsistence of first marriage is offence. It is profitable to reproduce para no. 11 as under: "In Kanwal Ram v. H.P Administration, AIR 21966 sic 1966 SC 614, this Court held that in a bigamy case, the second marriage is to be proved and the essential ceremony required for a valid marriage should have been performed. It was held that mere admission on the part of the accused may not be sufficient." 5. The Apex Court in a case Trisuns Chemical Industry v. Rajesh Agarwal reported in AIR 1999 SC 3499 held that any Magistrate can take cognizance whether it has the jurisdiction or not but enquiry of trial is to be conducted by the Magistrate having jurisdiction. It is profitable to reproduce para no. 12 of the judgment as under: "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 cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. It is therefore a fallacious thinking that only a magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance 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 cognizance stage and not earlier." 6. Keeping in view the discussion made hereinabove, it is alleged by the complainant/ respondent no. 1 that the second marriage has taken place at Baramulla so the Courts at Baramulla can conduct the enquiry or trial and the Court of Chief Judicial Magistrate Jammu is lacking jurisdiction. 7. Second question is whether the complaint is liable to be quashed or only proceedings are to be quashed. As held by the Apex Court in a case reported in AIR 2004 (supra) only proceedings are to be quashed. And further as discussed hereinabove that any Magistrate can take cognizance irrespective of the fact whether the offence was committed within his jurisdiction. Thus I deem it fit and proper only to quash the proceedings and transfer the complaint to the court of Sub Judge Judicial Magistrate Baramulla who shall pass orders as per law applicable and observations made hereinabove. Petitioners and respondents are directed to cause their appearance before the transferee court on 1st. May 2007. Registry is directed to send down the record and copy of the order to the transferee court and also to the court of Chief Judicial Magistrate, Jammu. Disposed of accordingly.