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2012 DIGILAW 273 (PAT)

Zohra Khatoon v. State of Bihar

2012-02-15

RAKESH KUMAR

body2012
ORDER Heard Mr. Anis Akhtar, learned counsel for the petitioner, Sri Shyam Kumar Singh, learned Additional Public Prosecutor, who appears on behalf of Opposite Party No. 1/ State and Sri Avinash Kumar, learned counsel who has appeared on behalf of Opposite Party No. 2/Complainant. 2. Two petitioners, while invoking inherent jurisdiction of this court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order which was passed long back on 24.03.2004 under Sections 498A/34 of the Indian Penal Code in Complaint Case No. 1025C of 2003 by the learned Judicial Magistrate, Biharsharif. 3. Learned counsel for the petitioner has confined his argument only to the extent of challenging the order of cognizance on the ground of territorial jurisdiction. 4. Short fact of the case is that the Opposite Party No. 2 filed a complaint petition in the court of Chief Judicial Magistrate, Nalanda at Biharsharif, which was numbered as Complaint Case No. 1025C of 2003 arraying ten persons as accused including the petitioner no. 1, who is mother-in-law of the complainant and the petitioner no. 2 – own brother of father-in-law of the complainant. In the complaint petition it was disclosed that her marriage was solemnized on 07.04.1999 at Biharsharif with accused no. 1 in the complaint petition i.e. son of the petitioner no. 1, and thereafter, she went to her in-laws house. Subsequently, it was alleged that the accused persons started pressurizing the complainant for bringing Rs. 50,000/- ,so that, the same amount may be deposited in the ‘Fixed Deposit Scheme’ for the purposes of marriage of the daughter born out of wed lock of the complainant with the son of the petitioner no. 1. For such demand, she was pressurized and tortured. The complainant was compelled to convey the demand to her parents who were residing at Biharsharif, Nalanda. This fact has been mentioned in paragraph no. 2 of the complaint petition. Subsequently, demand of motor cycle was also made, which too was conveyed through the complainant to the parents of the complainant residing at Biharsharif. The complainant has further disclosed that due to non-fulfillment of the demand, once, while she was sleeping in night, kerosene oil was sprinkled on her and she was put on fire. It was disclosed that for evidence burnt ‘saree’ was also available. The complainant has further disclosed that due to non-fulfillment of the demand, once, while she was sleeping in night, kerosene oil was sprinkled on her and she was put on fire. It was disclosed that for evidence burnt ‘saree’ was also available. Lastly, due to non-fulfillment of the demand of dowry, after torture, she was ousted from her in-laws house. After filing the complaint, the complainant examined witnesses in support of the complaint petition, and subsequently, after conducting enquiry, the learned Judicial Magistrate, Biharsharif, by the impugned order had taken cognizance of the offence under Sections 498A/34 of the Indian Penal Code, which is under challenge before this court. 5. Learned counsel for the petitioner while assailing the order of cognizance submits that the learned Magistrate, Biharsharif at Nalanda was not having any territorial jurisdiction to entertain the complaint petition. It was argued that the in-laws’ house of the complainant was situated in the district of Sitamarhi and also all the alleged occurrence had taken place in the district of Sitamarhi. It was submitted that since no part of cause of action arose within the jurisdiction of the court at Biharsharif, the learned Magistrate, Biharsharif was not having any jurisdiction to entertain the complaint petition or pass order of cognizance. In support of his argument learned counsel for the petitioner has relied on a judgment of the Apex Court reported in 2004(4) CRI. L.J. 4180 (Y. Abraham Ajith & Ors. Vs Inspector of Police, Chennai & Anr.). Learned counsel for the petitioner has specifically referred to paragraph no. 11 of the said judgment. For better appreciation, it would be appropriate to quote paragraph no. 11 of Y. Abraham Ajith Case (supra), which is as follows:– 11. “A similar plea relating to continuance of the offence was examined by this Court in Sujata Mukherjee (Smt.) Vs. Prashant Kumar Mukherjee ( 1997 (5) SCC 30 ). There the allegations related to commission of alleged offences punishable under Sections 498A, 506 and 323 IPC. On the factual background, it was noted that 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. On the factual background, it was noted that 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 relations. 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 continuance of the offences cannot be applied.” On aforesaid ground, it has been prayed to quash the order of cognizance. 6. Sri Avinash Kumar, learned counsel appearing on behalf of the Opposite Party No. 2 / complainant has vigorously opposed the prayer of the petitioner. It was argued by Sri Avinash Kumar, learned counsel for the Opposite Party No. 2, that it is not a case where entire cause of action arose within the district of Sitamarhi. He submits that part of cause of action arose in Sitamarhi as well as in the district of Nalanda at Biharsharif. He further submits that it was a continuing offence. It was argued that complaint petition itself indicates that the complainant was tortured, and thereafter, she was ousted from her in-laws’ house, and as such, under Section 178(c) of the Cr.P.C., it was option left to the complainant to file complaint either before the court at Sitamarhi or before the court at Biharsharif, Nalanda. In support of his argument learned counsel for the Opposite Party No. 2 has relied on a recent judgment of the Apex Court reported in 2011(2) PLJR (SC) 191 (Sunita Kumari Kashyap Vs State of Bihar & Anr.). He has specifically referred to paragraph no. 11 of the said judgment of the Apex Court, which is quoted hereinafter:– 11. “We have already adverted to the details made by the appellant in the complaint. He has specifically referred to paragraph no. 11 of the said judgment of the Apex Court, which is quoted hereinafter:– 11. “We have already adverted to the details made by the appellant in the complaint. In view of the specific assertion by the appellant-wife about the ill-treatment and cruelty at the hands of the husband and his relatives at Ranchi and of the fact that because of their action, she was taken to her parental home at Gaya by her husband with a threat of dire consequences for not fulfilling their demand of dowry, we hold that in view of Sections 178 and 179 of the Code, the offence in this case was a continuing one having been committed in more local areas and one of the local areas being Gaya, the learned Magistrate at Gaya has jurisdiction to proceed with the criminal case instituted therein. In other words, the offence was a continuing one and the episode at Gaya was only a consequence of continuing offence of harassment of ill treatment meted out to the complainant, clause (c) of Section 178 is attracted. Further, from the allegations in the complaint, it appears to us that it is a continuing offence of ill treatment and humiliation meted out to the appellant in the hands of all the accused persons and in such continuing offence, on some occasion all had taken part and on other occasion one of the accused, namely, husband had taken part, therefore, undoubtedly clause (c) of Section 178 of the Code is clearly attracted.” 7. Learned counsel for opposite party no. 2 has further submitted that in the complaint petition there is specific assertion that the complainant was tortured for demanding money for ‘Fixed Deposit’ as well as for purchasing motor cycle, and for that action, the accused persons had compelled the complainant to convey this fact to her parents who were residing at Biharsharif, and as such, it was submitted that, part of cause of action arose even within the district of Nalanda at Biharsharif, and as such, it is a specific case that part of cause of action arose within Biharsharif at Nalanda, where complaint petition was filed by the complainant. 8. In reply, Mr. 8. In reply, Mr. Anis Akhtar, learned counsel for the petitioner has argued that the judgment of the Apex Court reported in Sunita Kumari Kashyap Case (supra) is per incuriam since the Apex Court had not considered the earlier judgment of the Apex Court in Y. Abraham Ajith Case (supra), and as such, no reliance can be placed on Sunita Kumari Kashyap Case (supra). 9. So far as the plea taken by Mr. Anis Akhtar that judgment of Sunita Kumari Kashyap Case may not be taken note of is concerned, the court is of the opinion, that submission of learned counsel for the petitioner is misconceived. Time without number, it has been held, that if on one point there are two judgments of the similar bench, then the court is required to follow the recent judgment. Recent judgment has been passed in Sunita Kumari Kashyap Case in 2011, and as such, this court can not over look the law laid down in Sunita Kumari Kashyap Case. Besides this, in the complaint petition itself there was specific allegation which discloses that part of cause of action arose within the jurisdiction of the court of the learned Magistrate situated at Biharsharif, Nalanda which is evident from the statement made in the complaint petition. 10. In view of the facts and circumstances as indicated above, the court is of the opinion, that since part of cause of action arose within the jurisdiction of the court at Biharsharif, the order of cognizance, on the plea taken by learned counsel for the petitioner, can not be interfered with. Accordingly, the petition stands dismissed.