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2008 DIGILAW 229 (CHH)

Manik Biswas v. State of Chhattisgarh

2008-08-29

T.P.SHARMA

body2008
ORDER :- This petition is directed against the order dated 24-9-2007 passed by the Judicial Magistrate First Class, Bhanupratappur, in Criminal Case No.111/ 2005 whereby the learned Judicial Magistrate First Class, after holding that the part of cause of action arose at Phakhajed rejected the application filed on behalf of the appellants under Sections 177, 178 and 245 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as, 'the Code'). 2. The order is challenged on the ground that no part of cause of action arose of Phakhajur and therefore, the Judicial Magistrate First Class. Bhanupratappur was not competent to take cognizance of the offence against the petitioners. 3. I have heard Shri Y. C. Sharma, counsel for the petitioners and Shri Pankaj Shrivastava, panel lawyer for the State and perused the petition as also the order impugned. 4. Learned counsel for the applicants submits that respondent No. 2-Sushmita Biswas was married to the deceased Vijay Biswas. The petitioners No. 1 to 3 are relatives of the deceased Vijay Biswas and they are residents of Raipur. The respondent No. 2 is resident of Pankhajur, Tahsil Bhanupratappur, District Ranker. At the instance of respondent No. 2, criminal case for commission of offence punishable under Section 498-A of the Indian Penal Code has been filed before the Court of the Judicial Magistrate First Class, Bhanupratappur, which has been registered as Criminal Case No. 111/2005. The petitioners had filed the application/objection under Sections 177, 178 and 245 (2) of the Code before the trial Court, but the same has been dismissed by the order impugned. Learned counsel further submits that the respondent No. 2 has written in her written complaint that she was subjected to cruelty by the petitioners at Raipur and twice she was threatened by her husband at Pankhajur. Her husband had also misbehaved with her parents at Pankhajur, but no details of threat or misbehave have been stated by the respondent No. 2 or her parents. She has tried to create technical jurisdiction at Bhanupratappur, but no part of cause of action arose within the jurisdiction of the Court situated at Bhanupratappur. 5. Her husband had also misbehaved with her parents at Pankhajur, but no details of threat or misbehave have been stated by the respondent No. 2 or her parents. She has tried to create technical jurisdiction at Bhanupratappur, but no part of cause of action arose within the jurisdiction of the Court situated at Bhanupratappur. 5. Learned counsel for the petitioners placed reliance in the matter of Y. Abraham Ajith and others v. Inspector of Police, Chennai and another, AIR 2004 SC 4286 : 2004 Cri LJ 4180 in which it has held by the Apex Court that cruelty on the basis of demand of dowry is a question of fact and if on the basis of facts such offence is not continuing then sub-section (c) of Section 178 of the Code has no application. Para 11 of the above judgment reads as under :- "11. A similar plea relating to continuance of the offence was examined by this Court in Sujata Mukherjee (Smt) v. Prashant Kumar Mukherjee (1997) (5) SCC 30 : 1997 Cri LJ 2985. There the allegations relating to commission of alleged offences punishable under Sections 498-A, 506 and 323, I. P. C. though the dowry demands were made earlier the husband of the complainant went to the place where complainant was residing and had assaulted her. This Court held in that factual background that clause (c) of Section 178 was attracted. But in the present case, the factual position is different and the complainant herself left the house of the husband on 15-4-1997 on account of alleged dowry demands by the husband and his relatives. There is thereafter not even a whisper of allegations about any demand of dowry or commission of any act constituting an offence much less at Chennai. That being so, the logic of Section 178(c) of the Code relating to commission of the offences cannot be applied." 6. On the other hand, order impugned is supported on behalf of the respondent No. 1/State. 7. This is a petition filed under Section 482 of the Code for invoking inherent jurisdiction. Inherent powers are in the nature of extraordinary powers to be used sparingly or achieving the object mentioned in Section 482 of the Code in case where there is no express provision empowering the High Court to achieve the said object. 7. This is a petition filed under Section 482 of the Code for invoking inherent jurisdiction. Inherent powers are in the nature of extraordinary powers to be used sparingly or achieving the object mentioned in Section 482 of the Code in case where there is no express provision empowering the High Court to achieve the said object. While dealing with the provisions of Section 482 of the Code, the Apex Court has held in the case of State of Punjab v. Kasturi Lal, 2004 Cri LJ 3866 (3868) (SC) as under :- "Exercise of power under S. 482 of the Code is a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possible arise, Courts therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All Courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice. While exercising powers under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist." 8-9. In the light of the aforesaid legal prepositions, I have examined the material available on record. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist." 8-9. In the light of the aforesaid legal prepositions, I have examined the material available on record. From perusal of the copy of FIR and written complaint, it appears that the petitioners and the deceased Vijay Biswas (husband of the respondent No. 2) had harassed and tortured the respondent No. 2 just after marriage at her matrimonial house i.e. Raipur and twice by her husband at Pankhajur. Her husband also misbehaved with her parents at Pankhajur and after misbehave and threat, the petitioners and her husband again harassed and tortured the respondent No. 2 at Raipur. Statement recorded under Section 161 of the Code may be used for omission and contradiction, but they are not substantive piece of evidence. FIR and written complaint are substantive piece of evidence, which shows prima facie that the respondent No. 2 was threatened by co-accused Vijay Biswas twice at Pankhajur and he also misbehaved with her parents at Pankhajur and she was subjected to cruelty by the petitioners and deceased Vijay Biswas just after marriage till lodging the FIR. In the instant case, the offence of 498-A of the I. P. C. is continuing in nature. It consists of several acts done in different local areas i.e. local areas of Raipur and Pankhajur. 10. While dealing with the provisions of sub-section (c) of Section 178 of the Code of Criminal Procedure, 1978, the Apex Court has held in the case of Sujata Mukherjee (Smt) v. Prashant Kumar Mukherjee, AIR 1997 SC 2465 : 1997 Cri LJ 2985 that in case of cruelty on the ground of demand of dowry if the offences are continuing in nature, then it may be tried by the Court having jurisdiction where part of case of action arose in terms of sub-section (c) of Section 178 of the Code. Para 7 of the above judgment reads as under :- "7. Despite service being effected on the private respondents, no one has appeared for any of the accused respondents. Para 7 of the above judgment reads as under :- "7. Despite service being effected on the private respondents, no one has appeared for any of the accused respondents. We have taken into consideration the complaint filed by the appellant and it appears to us that the complaint reveals a continuing offence of maltreatment and humiliation meted out to the appellant in the hands of all the accused respondents and in such continuing offence, on some occasions all the respondents has taken part. Therefore, clause (c) of Section 178 of the Code of Criminal Procedure is clearly attracted. We, therefore, set aside the impugned order of the High Court and direct the learned Chief Judicial Magistrate, Raipur to proceed with the criminal case. Since the matter is pending for long, steps should be taken to expedite the hearing. The appeals are accordingly allowed." 11. In the case of Mohan Baitha and others v. State of Bihar and another (2001) 4 SCC 350 : 2001 Cri LJ 1738, the Apex Court has held that if the offence has been committed in the jurisdiction of different local areas then it may be tried by any Court where part of cause of action arose. In the instant case according to story of prosecution, cause of action partly arose within the jurisdiction of Raipur and partly arose within the jurisdiction of Pankhajur. In the case of Y. Abraham Ajith (supra), after leaving the matrimonial house by the complainant no demand was made by the husband or their relatives. In that case, the offence was not continuing offence, but in the instant case, the offence is continuing offence. The case of Y. Abraham Ajith (supra) is distinguishable from the present case. 12. After taking into consideration the facts that part of cause of action arose at Pankhajur, the trial Court has rejected the application/objection filed on behalf of the petitioners. On careful examination, I am of the view that the offence, in the instant case, is continuing in nature and triable by the Court having jurisdiction at Raipur or at Pankhajur. Learned trial Court has not committed any illegality or infirmity in rejecting the application. 13. Consequently, the petition being devoid of merit is liable to be dismissed and it is hereby dismissed at the stage of admission. Petition dismissed.