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2008 DIGILAW 1582 (PAT)

Md. Kalam, Son Of Md. Basir v. State Of Bihar

2008-11-07

ABHIJIT SINHA

body2008
Judgment 1. The petitioner, one of the F.I.R. named accused of Naya Ram Nagar (Safia Sarai) P.S. Case No. 6 of 2006, G.R. No. 48 of 2006, has prayed for the quashing of the order dated 2.7.2007 passed therein by the learned Sub-Divisionai Judicial Magistrate, Munger, whereby he has taken cognizance of offences under Sections 323, 498A I.P.C. and 3/4 of the Dowry Prohibition Act against all the accused including the petitioner. 2. The aforesaid case was instituted on the basis of a typed report in English and signed in Urdu submitted by one Mehnaz Begum before the Superintendent of Police, Munger, inter alia stating that her marriage with one Md. Azmal of Village-Parham, District-Munger, was held on 7.10.2001 according to Muslim custom at Kolkata whereat Rs. 35,000/- in cash apart from other articles of gifts as mentioned in the First Information Report were given to the husband. It is alleged that on her entry into the matrimonial home at Village-Parham, all the accused, as named in the F.I.R., including her in-laws and her husband started showing their dissatisfaction over the gifts given and they started taunting and torturing her by denying her proper food and making her do all types of domestic work. It is said that when she brought this fact to the notice of her husband, he alongwith his family members abused her and asked her to bring Rs. 10,000/- from her parents and on her refusal to do so she was continuously tortured by her husband and his near relatives. It is further said that in the meantime she having become pregnant came to her parental home at Village-Fatehpur within Garden Reach P.S. in Kolkata and gave birth to a son, Vicky. It is said that after the birth of the child her husband took a room at J-2/6 Fatehpur on rent and started living with her and the other relations of the husband were residing in the said locality at J-2/8 and they again started torturing her and demanding Rs. 10,000/- from her by way of dowry. 3. It is said that after the birth of the child her husband took a room at J-2/6 Fatehpur on rent and started living with her and the other relations of the husband were residing in the said locality at J-2/8 and they again started torturing her and demanding Rs. 10,000/- from her by way of dowry. 3. It is further alleged that at about 8 A.M. on 9.7.2003 the husband in collusion with his relatives started assaulting her and on 10.7.2003 they poured kerosene oil on her body and set her on fire but fortunately at the intervention of neighbours, who came over attracted by her nulla, she was rescued and was removed to S.S.K.M. Hospital, Kolkata where she was medically treated by the doctor. It is also alleged that the father of the informant had continuously tried to reason with the accused persons in an effort to pacify the matter and settle the dispute but the accused persons were adamant and reiterated their demand and also threatened to do away with her life and property if the demand was not made. They also made attempt to kidnap her son Vicky. Accordingly, a request was made to save her life and that of her son. 4. It has been submitted on behalf of the petitioner that he is a resident of G357, Alif Nagar, P.S. Garden Reach at Koikata and was residing at F-61/B.P.S., Garden Reach, Kolkata and there was no specific allegation at all against him or for that matter against most of the other accused persons of the commission of any specific overt act or acts and to the contrary the allegations were omnibus and generalized in nature. The only probable reason for implication of the petitioner herein was presumably because he happened to be a relation of the husband of the informant. 5. The specific plea raised by the learned counsel for the petitioner was to challenge the territorial jurisdiction of the court at Munger to take cognizance in the matter when admittedly no part thereof in which the petitioner is said to have been involved took place within the territorial jurisdiction of the Munger Court and if the allegations are to be believed, had, in fact, taken place at Kolkata and as such the instant case was not maintainable. In this connection, it was sought to be submitted that the case had been filed at Munger with concocted allegations of alleged demand of dowry by the in-laws at Parham only with a view to create jurisdiction of the Munger Court, at the instance of one Sarfaraj, who happens to be the maternal cousin of the informant and at the relevant time was posted as Clerk in the Office of the D.I.G. at Munger. It was further submitted that no independent witness either from the in-laws place or from the parental village of the informant had come forward to support the prosecution case so far as the involvement of the petitioner in the alleged crime is concerned and those independent witness whose statement is available in paragraphs 5 to 7 of the case diary have denied the allegations of the alleged demand of dowry and the other witnesses have stated that after three months of the marriage the informant went to her parental home and never returned to her in-laws notwithstanding repeated requests having been made by the husband and her husband had filed an application before the Sairiat Court at Munger as also before the Ladies Association at Kolkata. He had also filed a Divorce Case against her. It has been submitted that prior to the filing of the Divorce Case the husband had filed a suit for restitution being Case No. 6 of 2005 before the Principal Judge, Family Court, Munger and in the written statement the informant had stated that she was residing separately for more than three years and as per Muslim Law, the relationship between the husband and the wife had ceased. Reference has been made to several other cases filed inter se the parties. 6. Admittedly, from the typed report which is in English and has been signed by the informant in Urdu, it would appear that initially no demand for dowry was made at the time of marriage at Kolkata and the first demand was made in the matrimonial home at Village-Parham in the District of Munger and then reiterated subsequently when the husband took up residence at J-2/6, Fatehpur and the attempt to burn her for non-fulfillment of dowry demand took place at Fatehpur. Therefore, it would appear that the demand for dowry was made both at Village-Parham and at Fatehpur and as such both the Courts at Munger and Koikata had territorial jurisdiction to entertain the application. In that view of the matter, I am unable to accept the submissions of the learned counsel for the petitioner that the court at Munger had no territorial jurisdiction to entertain the instant case. 7. So far as there being no allegation of any overt act as against this petitioner is concerned, it is clear from the typed report itself that the husband, Md. Azmal in collusion with Md. Kalam, the petitioner and one Memroom Nisha had assaulted the informant on 9.7.2003 at about 8 A.M. and on 10.7.2003 they had sprinkled kerosene oil on her body and had tried to set her on fire. This only goes to show that there is specific overt act alleged against the petitioner herein with specific role assigned to him in the crime. In that view of the matter, I am unable to accept the submissions of the learned counsel for the petitioners that allegations against all the accused persons were omnibus and generalized in nature. 8. In view of the discussions made above, the decisions of Ramesh Singh V/s. State of Tamil Nadu ( AIR 2005 SC 1989 ) and Sunil Kumar Singh V/s. State of Bihar (2006 Cr.L.J. 3527) [: 2006(2) PLJR 534 ] cited by the learned counsel for the petitioner have no application in this case and are easily distinguishable. 9. Due regard being had to the facts and the circumstances of the case, I find no reason to interfere with the impugned order taking cognizance and accordingly, dismiss the application.