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2012 DIGILAW 1484 (PAT)

Bharat Jee v. State of Bihar

2012-10-18

RAKESH KUMAR

body2012
ORDER Heard Sri Ajit Kumar Singh, learned counsel for the petitioners, Sri Anant Kumar, learned Addl. Public Prosecutor as well as Sri Amrendra Kumar Pathak, learned counsel, who has appeared on behalf of complainant/opposite party no. 2. 2. Five petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 25-05-2010 passed by Sub-Divisional Judicial Magistrate, Buxar (hereinafter referred to as “Magistrate”) in Complaint Case No. 801(C) of 2009/1375 Tr. 11. By the said order, learned Magistrate has taken cognizance of offence under Sections 323 & 498(A) of the Indian Penal Code and Sections 3 & 4 of the Dowry Prohibition Act. 3. Sri Singh, learned counsel for the petitioners firstly has assailed the order of cognizance on the ground of lack of territorial jurisdiction. It was submitted by learned counsel for the petitioners that in the complaint petition, there is nothing to show as to whether any occurrence had taken place within the territorial jurisdiction of Buxar court and as such, order of cognizance is liable to be set aside. He further submits that the present complaint was filed maliciously on the ground that prior to filing of the present complaint petition, the husband of complainant, who is petitioner no. 1, had filed a matrimonial case i.e. Matrimonial Case No. 55 of 2009 in the court of Principal Judge, Family Court, Buxar under Section 9 read with section 13 of the Hindu Marriage Act. Of course, the date of filing of the matrimonial case is not mentioned in the petition, but orally it was submitted by Sri Singh, learned counsel for the petitioners that said case was filed on 17-04-2009. On aforesaid ground, he has prayed for setting aside order of cognizance. 4. Learned counsel appearing on behalf of complainant/opposite party no. 2 has drawn my attention to averment made in paragraph 2 of the complaint petition, which shows that part of cause of action arose within the territorial jurisdiction of Buxar court also and as such, in view of section 178(2) of the Cr.P.C., option was left with the complainant to file case either at Buxar or at Balia. 2 has drawn my attention to averment made in paragraph 2 of the complaint petition, which shows that part of cause of action arose within the territorial jurisdiction of Buxar court also and as such, in view of section 178(2) of the Cr.P.C., option was left with the complainant to file case either at Buxar or at Balia. He submits that some of the cause of action arose at Buxar and some of the cause of action arose at Balia and as such, order of cognizance on the ground of lack of territorial jurisdiction may not be interfered with. 5. On this very point, Sri Ajit Kumar Singh, learned counsel for the petitioner submits that from perusal of the complaint petition, it is evident that major portion of occurrence had taken place at Balia and in view judgment of Hon’ble Apex Court reported in (2007) 5 Supreme Court Cases 786 (Asit Bhattacharjee Vs. Hanuman Prasad Ojha and Others), the complaint petition was required to be filed at Balia court, not at Buxar. 6. Learned counsel for complainant/opposite party no. 2 further submits that in the complaint petition, there are specific assertions regarding commission of offences by all the petitioners. In this case, initially complaint was filed against seven accused persons, however; in respect of accused persons, who were residing at different places i.e. accused nos. 6 & 7, the learned Magistrate has not passed order of cognizance and cognizance order was passed only against five accused persons, who are petitioners before this Court. With regard to filing of the matrimonial case, he submits that only on the ground of filing such petition, order of cognizance may not be interfered with. 7. Besides hearing the parties, I have also perused the materials available on record. Paragraph no. 2 of the complaint petition shows specific assertion that even at the time of solemnization of marriage, demands of rupees one lack and a Hero Honda Motorcycle were made and this was the reason for continued atrocity on the complainant. It has been asserted that complainant anyhow continued to reside with her husband, but finally on 02-04-2009, after assault, she was ousted from her in-laws’ house and all the ornaments were taken by the accused persons and thereafter, she returned back to her parents’ house at Buxar. It is true that complaint was filed on 19-08-2009. It has been asserted that complainant anyhow continued to reside with her husband, but finally on 02-04-2009, after assault, she was ousted from her in-laws’ house and all the ornaments were taken by the accused persons and thereafter, she returned back to her parents’ house at Buxar. It is true that complaint was filed on 19-08-2009. If it is accepted that matrimonial case was filed by petitioner no.1 on 17-04-2009, it further suggests that said case was filed after the complainant was ousted from her in-law’s house. Moreover, on the ground of filing of such case, order of cognizance, in the present case may not be set aside. In the present case only requirement is to see as to whether offences, as alleged by the complainant, prima facie is made out or not. After filing of the complaint petition and conducting inquiry, the learned Magistrate has passed the order of cognizance. 8. Prima facie, I do not find any defect in the order of cognizance. So far as Asit Bhattacharjee’s case (supra) is concerned, the Court is of the opinion that petitioners may not get any help from the said judgment. Even in the said judgment, the Supreme Court has not specifically said that in case of cause of action accrued on two places, the complaint or criminal case can be filed at only one court. On the contrary, the Supreme Court in the said case has held that even Chief Metropolitan Magistrate, Calcutta was having jurisdiction, in view of Section 178 read with Section 181(4) of the Cr.P.C. 9. After going through the materials available on record, I do not find any ground for interference with the impugned order, that too while exercising power under Section 482 of the Code of Criminal Procedure, which is to be exercised in exceptional or rarest of the rare cases, as observed by Hon’ble Apex Court in a case reported in AIR 1992 Supreme Court 604 (State of Haryana and Others Vs. Bhajan Lal and Others). 10. The petition stands dismissed. 11. In view of dismissal of this petition, interim order of stay dated 01-03-2011 stands vacated.