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2008 DIGILAW 685 (RAJ)

Kanhaiya Lal v. State of Rajasthan

2008-03-04

H.R.PANWAR

body2008
Honble PANWAR, J.–This criminal miscellaneous petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, "the Code", hereinafter) is directed against the order dated 8.2.2008 passed by the Judicial Magistrate, Desuri, district Pali (for short, "the trial Court" hereinafter) in Criminal Regular Case No. 598/2001, whereby the application filed by the petitioners under Section 177 of the Code objecting the jurisdiction of the trial Court to make an inquiry into and try the case instituted by the respondent No. 2 for the offences under Sections 498-A and 406 IPC was dismissed. (2). I have heard the learned counsel for the parties at length. Carefully gone through the impugned order, the First Information Report and the charge-sheet filed by the police against the petitioners for the offences under Sections 498-A and 406 IPC. (3). It is contended by the learned counsel for the petitioners that the marriage of the respondent No. 2 was solemnized with petitioner No. 2 Mukesh within the territorial jurisdiction of Police Station, Sadri, district Pali, which falls within the territorial jurisdiction of the Court at Desuri, district Pali however after colemnizing the marriage, the respondent No. 2 started living with her husband and other members of in-laws at her matrimonial home at Ahmedabad (Gujarat), who are petitioners herein. At the time of marriage, whatever dowry articles were given to the respondent No.2 by her parents were entrusted to the petitioners but they have been taken to Ahmedabad (Gujarat) where the respondent No. 2, her husband and the members of her in-laws had been residing after the marriage. Now, her parents-in-law are residing at Kenya (Africa). According to the learned counsel for the petitioners, if at all any offence is committed and the respondent No. 2 was subjected to the cruelty and harassment and declined to return her dowry articles then that have been committed at Ahmedabad (Gujarat) and not at Sadri (Rajasthan). Learned counsel submits that the application under Section 177 of Code objecting the jurisdiction of the Court at Desuri, district Pali (Rajasthan) has been dismissed by the trial Court. Hence this criminal miscellaneous petition. (4). Learned counsel for the petitioners has relied on the decision of this Court in Pankaj Saxena & Ors. vs. State of Rajasthan, 2008(1) Cr.L.R. (Raj.) 64; and a decision of the Honble Supreme Court in Manish Ratan & Ors. Hence this criminal miscellaneous petition. (4). Learned counsel for the petitioners has relied on the decision of this Court in Pankaj Saxena & Ors. vs. State of Rajasthan, 2008(1) Cr.L.R. (Raj.) 64; and a decision of the Honble Supreme Court in Manish Ratan & Ors. vs. State of M.P. & Anr., (2007) 1 SCC 262 = (2007(1) RLW 784 (SC). (5). In Pankaj Saxena & ors. vs. State of Rajasthan (supra), while considering the provisions of Section 177 of the Code, a coordinate Bench of this held that ordinarily the offence be inquired into and tried by a Court within whose local jurisdiction it was committed and in essence, it is the cause of action for initiation of proceedings against the accused and it is the place where the offence was committed. In the light whereof, each case has to be examined on factual position transpired from complaint and material on record. In that case, on account of alleged dowry demands by her in-laws family members, complainant left her matrimonial house at Aklera (Jhalawar) and at that time, she raised demand to return back her Stridhan and the complaint was filed at Kota. This Court held that prima facie none of the ingredients constituting offences under Sections 498-A and 406 IPC can be said to have taken place within the local jurisdiction of Magistrate at Kota. (6). In Manish Ratan & Ors. vs. State of M.P. & Anr. (supra), the Honble Supreme Court held as under:- "We therefore, are of the opinion that, interest of justice would be subserved, while setting aside the order of the High Court, if in exercise of our jurisdiction under Article 142 of the Constitution of India, we direct transfer of the criminal case pending in the Court of Chief Judicial Magistrate, Datia to the Court of Chief Judicial Magistrate, Jabalpur. We accordingly do so." (7). Chapter XIII of the Code deals with the jurisdiction of a criminal Court in inquiries and trials. Section 177 of the Code provides that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. (8). We accordingly do so." (7). Chapter XIII of the Code deals with the jurisdiction of a criminal Court in inquiries and trials. Section 177 of the Code provides that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. (8). Section 178 of the Code pertains to place of inquiry or trial and provides that (a) when it is uncertain in which of several local areas an offence was committed, or (b) where an offence is committed party in one local area and partly in another, or (c) where an offence is a continuing one, and continues to be committed in more local area than one, or (d) where it consist of several acts done in different local area, it may be inquired into or tried by a Court having jurisdiction over any of such local area. (9). Section 179 of the Code pertains to offence triable where act is done or consequence ensues and provides that when an act is an offence by reason of anything which has been done and of a consequence which has ensured, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequences has ensured. (10). Section 180 of the Code pertains to place of trial where act is an offence by reason of relation to other offence and provides that when an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence the first-mentioned offence may be inquired into or tried by a Court within whose local jurisdiction either act was done. (11). Section 181 of the Code pertains to place of trial in case of certain offences and provides that (1) Any offence of being a thug, or murder committed by a thug, of dacoity, of dacoity with murder, of belonging to a gang of dacoits, or of escaping from custody, may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the accused person is found. (2) Any offence of kidnapping or abduction of a person may be inquired into or tried by a Court within whose local jurisdiction the person was kidnapped or abducted or was conveyed or concealed or detained. (3) Any offence of theft, extortion or robbery may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property which is the subject of the offence was possessed by any person committing it or by any person who received or retained such property knowing or having reason to believe it to be stolen property (4) Any offence of criminal misappropriation or of criminal breach of trust may be inquired 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, or was required to be returned or accounted for, by the accused person. (5) Any offence which includes the possession of stolen property may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property was possessed by any person who received or retained it knowing or having reason to believe it to be stolen property. (12). Sub-section (4) of Section 181 of the Code, in clear terms, provides that any offence of misappropriation or criminal breach of trust may be inquired 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, or was required to be returned or accounted for, by the accused. (13). In the instant case, there are two offences alleged against the petitioners by the respondent No. 2; one punishable under Section 498-A, IPC and the another under Section 406 IPC. Undisputedly, the cruelty has been alleged at her in-laws house at Ahmedabad (Gujarat), but so far as the offence under Section 406 IPC is concerned, it provides the punishment for criminal misappropriation or criminal breach of trust. The criminal breach of trust has been defined under Section 405 IPC. Undisputedly, the cruelty has been alleged at her in-laws house at Ahmedabad (Gujarat), but so far as the offence under Section 406 IPC is concerned, it provides the punishment for criminal misappropriation or criminal breach of trust. The criminal breach of trust has been defined under Section 405 IPC. For the trial of the cases in respect of any offence of misappropriation or criminal breach of trust, the relevant provision is sub-section (4) of Section 181, which in clear terms provides that any offence of criminal misappropriation or of criminal breach of trust may be inquired 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, or was required to be returned or accounted for, by the accused person. (14). In the instant case, undisputedly the marriage of the respondent No. 2 (the complainant) was solemnized with petitioner No. 2 Mukesh at Sadri, district Pali (Rajasthan) and the dowry articles given by her parents and relatives were entrusted to the petitioners at Sadri, district Pali (Rajasthan). However, subsequently, those articles, as stated by the learned counsel for petitioners, have been taken to Ahmedabad (Gujarat) Where her husband and parents-in-law are residing. But so far as entrustment is concerned, or in other words, so far as receiving the dowry articles which is the "Stridhan" of the respondent No. 2, are concerned, they have been received by the petitioners at Sadri, district Pali (Rajasthan) and thereafter the respondent No. 2 demanded to return those articles and those articles were required to be returned at Sadri, district Pali (Rajasthan). At any rate, it was required to be accounted for by the petitioners at Sadri, district Pali (Rajasthan) where, after turning out of the respondent No. 2 from her matrimonial home, she has taken shelter with her parents. At any rate, it was required to be accounted for by the petitioners at Sadri, district Pali (Rajasthan) where, after turning out of the respondent No. 2 from her matrimonial home, she has taken shelter with her parents. Therefore, in my view, in the facts and circumstances of this case, the Police Station, Sadri, district Pali (Rajasthan) and the Court at Desuri, district Pali (Rajasthan), which is having territorial jurisdiction over Sadri, district Pali (Rajasthan), has territorial jurisdiction to inquire into any try the offence in view of the provisions of Section 178(b) and (d) of the Code, which clearly provides that where it consists of several acts done in different local areas, the Court having jurisdiction over any of such local area, may inquire into or try such case. (15). In the instant case, several acts like entrustment of dowry articles which and the "Stridhan" of the respondent No. 2, and on being demanded, refused to be returned and misappropriation, are said to have committed at Sadri, district Pali (Rajasthan) and, therefore, to this extent, the cause of action arose at Sadri, district Pali (Rajasthan) and the other part of the cause of action i.e. subjecting the respondent No. 2 with cruelty and harassment at Ahmedabad (Gujarat) and, therefore, the Court either at Desuri, district Pali (Rajasthan) having jurisdiction over Police Station, Sadri, district Pali (Rajasthan); or the Court at Ahmedabad (Gujarat), has jurisdiction to inquiry into and try the case. Respondent No. 2 has instituted the case with Police Station, Sadri, district Pali (Rajasthan) and, therefore, the Court at Desuri, district Pali (Rajasthan) is having local jurisdiction to try the case. (16). Therefore, in both the judgments relied on by the learned counsel for the petitioners, the provisions of sub-section (4) of Section 181 of the Code have neither been argued nor considered and decided and, therefore, both the decisions relied on by the learned counsel for the petitioners turn on their own facts and are of no help to the petitioners. (17). This Court, in Vinod Kumar & Ors. vs. State of Rajasthan, S.B. Criminal Misc. (17). This Court, in Vinod Kumar & Ors. vs. State of Rajasthan, S.B. Criminal Misc. Petition No. 477/2005 decided on 22.8.2006, on the similar facts, held that the jurisdiction of a Court is to a place where the marriage was solemnized and the dowry articles, which is the Stridhan of the complainant therein, were entrusted and that Court in having the territorial jurisdiction to inquire into and try the offence. (18). In Gyan Singh vs. State of Rajasthan, 1999(1) R.C.C. 451 = (1999(2) RLW Raj. 1170), this Court held that it is not proper to express an opinion on the point that the demand by the father, of the property given in dowry in the marriage of his daughter, would amount to the demand on behalf of his daughter or not. At this stage, only it is relevant that in the FIR it has been stated that the petitioner therein refused to give back the property to Ranju Bala. It may be that the demand and denial are said to have taken place in Punjab but that would not oust the jurisdiction of the Raisinghnagar police as under Section 181(4) of the Code and the offence of misappropriation or criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject to be returned or accounted for by the accused person. It is obvious that the Court in whose local jurisdiction the property was received also has got jurisdiction to try the offence. (19). In Ram Pal & Anr. vs. State of Haryana & Anr., 1991 (1) Crimes 566, the Honble Punjab & Haryana High Court held that on the point of jurisdiction, it transpires that the articles of dowry were entrusted at Kalanwali when the marriage took place and the petitions are expected to return those dowry articles to her at her parents house in village Kalanwali where she is at present residing. According to sub-section (4) of Section 181 of the Code of Criminal Procedure, offence of criminal misappropriation or of criminal breach of trust may be enquired into and tried by a Court within whose local jurisdiction the offence was committed or any part of the property was received or retained or was required to be returned or accounted for by the accused persons. Thus, at this stage it cannot be said that the property was not received at Kalanwali and that it was not required to be returned at village Kalanwali where the complainant at present resides. (20). In Vijai Ratan Sharma & Ors. vs. State of U.P. & Anr., 1988 Crl.L.J. 1581, similar view has taken by the Honble Allahabad High Court. (21). In Dinesh Kumar & Ors. vs. Lalita Mor & Anr., 1995 (3) Crimes, 326, the Honble Allahabad High Court held that wife is not likely to demand return of the property at a place where she is not residing as it will be equally inconvenient and difficult for her to prosecute a criminal case at a third place. On this premises, the Court held that the irresistible conclusion is that the place where the wife demands return of her Stridhan property will also have territorial jurisdiction to try the offence of criminal breach of trust. It was further observed that when articles are given by way of gifts to a bride at the time of marriage, no one can contemplate that a situation would arise in future when a demand for return of stridhan-property from the husband or his other relations would be made and in the event of articles not being returned, a criminal prosecution would be launched. In fact, at the time of marriage every one wishes and prays that the new couple would lead a long and happy married life. Therefore, the existence or coming into being of a prior agreement or even understanding that in the event of break up of marriage or for some unforeseen circumstances, the articles given by way of gifts would be required to be returned at a particular place is an almost impossible situation. The relations and friends who give gifts to the bride would shudder at the very idea that a contingency may arise when the lady would be asked for the return of the articles from his husband or his other relations. Therefore, so far as an offence of criminal breach of trust regarding stridhan-property is concerned, there cannot be any prior agreement for return thereof at a particular place. If the last clause of sub-section is interpreted in the manner suggested by the learned counsel, it will become redundant in so far as the offence of criminal breach of trust of stridhan- property is concerned. (22). If the last clause of sub-section is interpreted in the manner suggested by the learned counsel, it will become redundant in so far as the offence of criminal breach of trust of stridhan- property is concerned. (22). The facts of the instant case are almost identical to the facts in Vinod Kumar vs. State of Rajasthan & Anr. (supra) and Gyan Singh vs. State of Rajasthan (supra). (23). In view of the aforesaid discussion and the facts emerging from the order impugned, it is undisputed that the marriage of the first informant-respondent No. 2 was solemnized with petitioner No. 2 Mukesh within the territorial jurisdiction of Police Station Sadri District Pali and the dowry articles, which is stridhan of respondent No. 2, was entrusted to the petitioners at Sadri District Pali and as such, the dowry articles have been received by the petitioners at Sadri District Pali and the respondent No. 2 has demanded return of dowry articles, which the petitioners failed to return and as such, misappropriated the Stridhan of respondent No. 2. The petitioners were required to return the dowry articles at the place where the respondent No. 2 after having been turned down from her matrimonial home, is residing and that is the place of marriage and also entrustment of dowry articles, which is stridhan of respondent No. 2 and therefore, in my considered view, the Court having territorial jurisdiction over the area Sadri District Pali has a territorial jurisdiction to try the case in view of provisions of Section 181 (4) and 178(b) & (d) of the Code. (24). In this view of the matter, I do not find any error, illegality or infirmity in the impugned order warranting interference in the inherent jurisdiction. It is settled law that powers under Section 482 of the Code are to be exercised sparingly, consciously in rarest of rare cases as has been held by Honble Supreme Court in State of Haryana & Ors. vs. Bhajan Lal & Ors., 1992 (Suppl) 1 SCC 335. (25). In Som Mittal vs. Government of Karnataka, 2008 AIR SCW 1003, the Honble Supreme Court held that the inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly, with circumspection and in the rarest of rare cases. vs. Bhajan Lal & Ors., 1992 (Suppl) 1 SCC 335. (25). In Som Mittal vs. Government of Karnataka, 2008 AIR SCW 1003, the Honble Supreme Court held that the inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly, with circumspection and in the rarest of rare cases. It is seen often that High Court exercising the inherent power under Section 482 Cr.P.C. in a routine manner as its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impermissible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. This power under Section 482 is not intended to scuttle justice at the threshold. (26). In view of aforesaid discussion, I do not find any merit in the petition and, therefore, it is dismissed.