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2012 DIGILAW 397 (GAU)

Pratap Sil v. Banesh Sil

2012-03-27

UJJAL BHUYAN

body2012
JUDGMENT Ujjal Bhuyan, J. 1. By this application under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C), the petitioners have prayed for quashing of the proceedings in C.R. Case No. 554/2009 pending before the learned Judicial Magistrate, 1st Class, Kaliabor, Nagaon. The petitioners have also challenged the legality and validity of the summon dated 06.03.2010 issued to them by the learned Magistrate requiring their attendance in the Court in connection with the aforesaid case. The facts of the case, shorn of details, may be briefly stated at the very outset. 2. The respondent as the complainant filed a complaint in the Court of the learned Sub-Divisional Judicial Magistrate, Kaliabor, Nagaon against the petitioners, who were named as the accused. According to the complainant, the eldest daughter of the complainant Smti. Mompi Seal got married to the son of the accused No. 1 Hemraj Seal. Hemraj was a sepoy in the 32 Assam Rifles. The residence of the accused persons is at Charingia, Silakara Basti (near Homeguard Centre), Jorhat. 3. Hemraj died in a road accident on 12.08.2009 while he was on duty. The complainant and his family members went to the residence of his son-in-law to perform the rituals. When they found their daughter not in a good condition, they wanted to bring her to their residence at Samaguri in the district of Nagaon. But the accused persons did not allow them to take their daughter. Thereafter, on two subsequent occasions when the complainant went to bring her, she was not allowed to come. The complainant alleged that his daughter was forcibly and illegally confined in the house of the accused persons. 4. Another allegation made in the complaint was regarding the terminal benefits of late Hemraj received by his daughter as his wife. The complainant has stated that to deposit the aforesaid amounts, a bank account was opened in the name of his daughter in the Jorhat branch of the State Bank of India with ATM facility. The allegation in the complaint is that the bank passbook and the ATM card were taken by the accused and they had withdrawn money from the account of his daughter by misusing the same. This was informed by Smti. Mompi Seal to her uncles when they visited her on 08.10.2009. She also informed about the same to the complainant over telephone. This was informed by Smti. Mompi Seal to her uncles when they visited her on 08.10.2009. She also informed about the same to the complainant over telephone. The complainant has stated that on receipt of such information, he inquired with the State Bank of India and found misappropriation of an amount of Rs. 1,26,000/- of his daughter by the accused. The complainant stated that the accused persons had started mental and physical torture on his daughter with the sole intention to misappropriate the entire money from her bank account. 5. The prayer made in the complaint petition was to issue a search warrant to recover his daughter Smti. Mompi Seal alongwith the documents and materials such as bank passbook and ATM card of Smti. Mompi Seal, service related documents of Hemraj Seal, gold ornaments of Smt. Mompi Seal given by the complainant at the time of her marriage etc. 6. The said complaint was registered as C.R. Case No.554/2009. 7. The learned Judicial Magistrate, 1st Class, Kaliabor issued summons to the petitioners on 06.03.2010 intimating them about the filing of the above noted case against them under Section 120(B)/420/498(A) IPC, fixing 30.03.2010 for their appearance. 8. As stated above, the petitioners have questioned the legality and validity of the summon issued to them and have prayed for quashing of the proceedings in C.R. Case No.554/2009. 9. The respondent, who is the complainant, has filed his counter affidavit. In his counter affidavit, the respondent while reiterating the statements made in the complaint petition, has further stated that the learned Judicial Magistrate after going through the complaint, had passed an order on 04.11.2009 directing issuance of search warrant to recover the daughter of the complainant alongwith her bank passbook and ATM card. He has stated that pursuant to the said order, he had gone to the residence of the petitioner alongwith police personnel and recovered his daughter Smti. Mompi Seal. He has asserted that there are enough materials for the prosecution of the petitioners and, therefore, the proceeding in C.R. Case No.554/2009 should not be quashed. 10. I have heard Mr. B.D. Das, learned Senior Counsel for the petitioners as well as Mr. RC. Dey, learned counsel for the sole respondent. 11. Mompi Seal. He has asserted that there are enough materials for the prosecution of the petitioners and, therefore, the proceeding in C.R. Case No.554/2009 should not be quashed. 10. I have heard Mr. B.D. Das, learned Senior Counsel for the petitioners as well as Mr. RC. Dey, learned counsel for the sole respondent. 11. Though in the quashing petition, the petitioners have urged that the complaint does not disclose commission of any offence under Section 120(B)/420/498 A IPC and that the filing of the complaint is not bonafide, in the hearing, Mr. Das has basically argued on the point of territorial jurisdiction or rather the lack of it. According to him, even if all the allegations made in the complaint are taken at its face value, it would be evident therefrom that those pertain to Jorhat and no part of the cause of action had taken place within the jurisdiction of the Court of the learned Magistrate at Kaliabor. He therefore submits that the learned Magistrate at Kaliabor has no territorial jurisdiction to try the C.R. Case No.554/2009. In support of the said submission, learned Senior counsel relies on the following two decisions :- (1) 2007 Crl. LJ 3560 : Debabrata Saha & Ors. Vs. State of Jharkhand & Anr.; (2) 2006 (Suppl) GLT 781 : Subal Sarkar & Ors. Vs. Purabi Sarkar (Das). 12. He also submits that there are no ingredients for constituting an offence under Section 498 A IPC. In support of this submission, he relies on a judgment of the Supreme Court in the case of Bhaskar Lal Sharma & Anr. Vs. Monica reported in (2009) 10 SCC 640. 13. Resisting the above submission of Mr. Das, Mr. Dey the learned counsel for the respondent submits that the complaint has to be read as a whole and on such a reading, a clear triable case is made out against the petitioners. He further submits that the complainant's daughter was kept confined at the residence of the petitioners at Jorhat and she could be recovered only on the orders of the Court. He also submits that the offence under Section 498 A IPC is a continuing one and, therefore, the learned Magistrate at Kaliabor has the jurisdiction to try the case. In support of his aforesaid submission, he refers to and relies on a decision of this Court in the case of Bina Dey & Ors. Vs. He also submits that the offence under Section 498 A IPC is a continuing one and, therefore, the learned Magistrate at Kaliabor has the jurisdiction to try the case. In support of his aforesaid submission, he refers to and relies on a decision of this Court in the case of Bina Dey & Ors. Vs. Pratibha Dey (Baidya); reported in 2003 (3) GLT 659: (2003) 3 GLR 16. Learned counsel for the respondent has vehemently argued that the present case is not the rarest of the rare case for which the inherent power of this Court under Section 482 Cr.P.C. should be invoked to quash the complaint. In this regard, learned counsel presses into service the decision of the Supreme Court in the case of Som Mittal Vs. Government of Karnataka; reported in (2008) 3 SCC 574 . 14. In his reply, Mr. Das, the learned Senior Counsel in addition to the submissions already made, further submits that there is not a single word in the complaint alleging demand of dowry by the petitioners. On the issue of quashing of the complaint, he takes the assistance of the decision of the Supreme Court in the famous case of State of Haryana & Ors. Vs. Bhajan Lal & Ors. reported in 1992 Supp. (1) SCC 335. 15. The rival submissions made at the bar have received the due and anxious consideration of the Court. For a better appreciation of the rival contentions, it would be appropriate to peruse the records of C.R. Case No. 554/2009. 16. The contents of the complaint have already been noted above in detail. On 03.11.2009, the statement of the complainant was recorded under Section 200 Cr.P.C. On 04.11.2009, the learned Judicial Magistrate, Kaliabor upon perusal of the complaint petition as well as the statement of the complainant recorded under Section 200 Cr.P.C., took the view that issuance of search warrant was necessary. Accordingly, search warrant was issued to recover Smti. Mompi Seal alongwith her bank passbook and ATM card and upon recovery to handover the custody to the complainant. The Officer-in-charge of Pulibor police station was directed to execute the warrant and to file report before the Court. Thereafter, the police executed the search warrant and submitted a report, which is reflected in the order dated 23.11.2009. Mompi Seal alongwith her bank passbook and ATM card and upon recovery to handover the custody to the complainant. The Officer-in-charge of Pulibor police station was directed to execute the warrant and to file report before the Court. Thereafter, the police executed the search warrant and submitted a report, which is reflected in the order dated 23.11.2009. By the said order, the learned Magistrate took cognizance against the accused under Section 406 IPC and directed issuance of summons to the accused. 17. It is thus seen that though the complaint was filed under Section 120(B)/420/498 A IPC, the learned Magistrate took cognizance only under Section 406 IPC. 18. Sections 177, 178 and 179 Cr.P.C. deals with the jurisdiction of the Criminal Courts in inquires and trials. As per Section 177, an offence shall ordinary be inquired into and tried by a Court within whose local jurisdiction it was committed. Section 178 envisages a situation where more than one Court can take cognizance of an offence. Four situations are visualized in Section 178, namely, (i) when it is uncertain in which of several local areas an offence was committed, or (ii) where an offence is committed partly in one local area and partly in another, or (iii) where an offence is a continuing one and continues to be committed in more local areas than one, or (iv) where the offence consists of several acts done in different local areas. 19. In such a case, the offence may be inquired into or tried by a Court having jurisdiction over any of such local areas. As per Section 179, an offence may be inquired into or tried by a Court within whose local jurisdiction an offence has been committed or the consequence of an offence has ensued. 20. Section 190 Cr.P.C., on the other hand, deals with cognizance of offence by a Magistrate. As per Section 179, an offence may be inquired into or tried by a Court within whose local jurisdiction an offence has been committed or the consequence of an offence has ensued. 20. Section 190 Cr.P.C., on the other hand, deals with cognizance of offence by a Magistrate. As per the said section, subject to the provisions of chapter XIV of the Cr.P.C., which contains Sections 190 to 199 dealing with the requisite conditions for initiation of criminal proceedings, any Magistrate of the first class and any Magistrate of the second class specially empowered by the Chief Judicial Magistrate, may take cognizance of any offence :- (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts, (c) upon information received from any person other than a police officer or upon his own knowledge, that such offence has been committed. 21. Section 193 Cr.P.C. prohibits the Court of Session from taking cognizance of any offence as a Court of original jurisdiction except on committal. 22. It is thus seen that the power to take cognizance of any offence is laid down in Section 190 Cr.P.C. A careful reading of the provision contained in Section 190 Cr.P.C. as noticed above would indicate that any Magistrate of the first class or any Magistrate of the second class as may be specially empowered has the power to take cognizance of any offence. The said section does not say that such a Magistrate can only take cognizance of an offence which is committed within his jurisdiction only. No such territorial limits or restrictions have been imposed by the said section. The crucial word used in that section is "any". Therefore, a Magistrate can take cognizance of any offence, irrespective of the place where such offence is committed. 23. Thus, from a careful scrutiny of the provisions of Sections 177 to 179 Cr.P.C. on the one hand and Section 190 thereof on the other hand, the legal proposition which emerges is that a Magistrate of the first class or a Magistrate of the second class specially empowered has the power to take cognizance of any offence, irrespective of the fact whether the offence was committed within his jurisdiction or not. But for the purpose of inquiry and trial, it is only the Court within whose territorial limits the offence was committed, will have the jurisdiction, subject to the exceptions mentioned in Sections 178 and 179 Cr.P.C. 24. The power to take cognizance is one thing but the power to try a criminal case for the offence charged is quite another. 25. The above view finds support in the judgment of the Apex Court in the case of Trisuns Chemical Industry Vs. Rajesh Agarwal & Ors.; reported in (1999) 8 SCC 686 . That was a case where the criminal complaint was filed by the complainant at Gandhidham in Gujarat alleging cheating by a company located at Indore in Madhya Pradesh and its Directors. The High Court had quashed the complaint on two grounds, including on the ground that the Judicial Magistrate, first class at Gandhidham had no territorial jurisdiction to entertain the complaint While setting aside the judgment of the High Court the Supreme Court has clearly stated that it is an erroneous view that the Magistrate taking cognizance of an offence must necessarily have the territorial jurisdiction to try the case as well. Referring to the provisions of Sections 177 and 179 Cr.P.C., the Supreme Court has said that the said provisions do not trammel the powers of any Court to take cognizance of an offence. Holding that any Magistrate of the first class has the power to take cognizance of any offence, no matter that the offence was committed within his jurisdiction or not, the Supreme Court has declared as under :- 14. The jurisdictional aspect becomes relevant only when the question of enquiry or trial arises. It is therefore a fallacious thinking that only a Magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to the Court which has jurisdiction to enquire into or try the offence and that situation would reach only during the post cognizance stage and not earlier. 26. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to the Court which has jurisdiction to enquire into or try the offence and that situation would reach only during the post cognizance stage and not earlier. 26. Applying the above legal principle to the facts of the present case, in my view, the learned Judicial Magistrate at Kaliabor had the power to direct issuance of search warrant for recovery of the complainant's daughter and the documents and to take cognizance under Section 406 IPC. 27. The cognizance having been taken by the learned Judicial Magistrate at Kaliabor under Section 406 IPC, the question which now boils down for consideration is whether the said Magistrate would have the territorial jurisdiction to try the case. 28. Since the cognizance has been taken under Section 406 IPC, the said provision of the Indian Penal Code may now require a brief examination. It provides for punishment for committing an offence of criminal breach of trust. Criminal breach of trust is defined in Section 405 of the said code. The said section provides that any person who is entrusted with property or with dominion over property, dishonestly misappropriates or converts to his own use that property or uses or disposes of the same in violation of any law or any legal contract or willfully suffers any other person so to do, commits the offence of criminal breach of trust. Therefore, for constituting the offence of criminal breach of trust, the following conditions must be fulfilled-- One must be entrusted with property or with dominion over property, He must dishonestly misappropriate or convert such property to his own use or he must dishonestly use or disposes such property in violation of any legal provision or of any legal contract, He willfully suffers any other person so to do. 29. A careful reading of the complaint petition as a whole shows that none of the allegations made in the complaint, including those which can be construed to constitute the ingredients of the offence punishable under Section 406 IPC, took place within the jurisdiction of the Criminal Court at Kaliabor. 29. A careful reading of the complaint petition as a whole shows that none of the allegations made in the complaint, including those which can be construed to constitute the ingredients of the offence punishable under Section 406 IPC, took place within the jurisdiction of the Criminal Court at Kaliabor. It cannot be said that any of the allegations made therein have been committed or has continued or the consequence has ensued within the territorial limits of the Criminal Court at Kaliabor. As per the first part of the complaint, Smt. Mompi Seal was kept confined in the residence of the accused at Jorhat. The second part of the complaint deals with compelling the complainant's daughter to part with her money which she had received on account of the death of her husband. The bank account as well as all the bank transactions took place at Jorhat. Therefore, it can safely be said that no part of the cause of action had arisen within the jurisdiction of the Criminal Court at Kaliabor. 30. Now, let us turn to the cases cited at the bar. In the case of Debabrata Saha (supra), the High Court on the facts of that case held that no part of the cause of action arose at Dhanbad and, therefore, the learned Magistrate at Dhanbad had no jurisdiction to deal with the matter. Consequently, the criminal proceedings at Dhanbad was quashed. That was a case where the criminal complaint was lodged before the learned Magistrate at Dhanbad, who took cognizance for the offences under Section 498 A IPC and Section 3/4 of the Dowry Prohibition Act. In that case, though the marriage was solemnized at Dhanbad but after the marriage, the husband and the wife started living at Calcutta where she was allegedly subjected to cruelty. 31. In the case of Subal Sarkar (supra), a Single Bench of this Court, after referring to various judicial pronouncements wherein it was held that the expression "cause of action" is not a stranger to criminal proceedings, came to the conclusion that atleast a part of the cause of action must take place within the jurisdiction of the Court where the proceeding has been instituted. 32. 32. Though the decision in the case of Bhaskar Lal Sharma (supra) was pressed into service by the petitioners in support of the argument that the essential ingredients of the offence under Section 498A IPC are absent in the instant case, the said judgment also deals with the offence under Section 406 IPC. After referring to various judgments, the essential ingredients for establishing an offence of criminal breach of trust as defined in section 405 IPC and punishable under Section 406 IPC have been culled out as under :- (i) entrusting any person with property or with any dominion over property; (ii) the person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust. 33. The decision in the case of Bina Dey (supra) was rendered in the context of Section 498A IPC, wherein a Single Bench of this Court held that Section 498 A IPC is a continuing offence and, therefore, in an offence under the aforesaid section, the place where the wife is forced to take shelter has the jurisdiction to try the offence. 34. The other two decisions of Bhajan Lal (supra) and Som Mittal (supra) deal with the scope of the power under Section 482 Cr.P.C. The said two judgments lay down well known parameters for exercise of the inherent power by the High Court. 35. From the discussions made above, it would be quite evident that even if all the allegations made in the complaint are accepted at their face value, those had taken place at the matrimonial home of the complainant's daughter at Jorhat and not at her parental house or in any place within the jurisdiction of the Criminal Court at Kaliabor, Nagaon. None of the allegations comprising the ingredients for constituting the offence of criminal breach of trust can be said to have been committed within the territorial limits of the Criminal Court at Kaliabor to enable it to try CR Case No.554/2009 under Section 406 IPC against the petitioners. Therefore, the Court of the learned Judicial Magistrate, 1st Class, Kaliabor, Nagaon would have no jurisdiction to try the CR Case No.554/2009. 36. Therefore, the Court of the learned Judicial Magistrate, 1st Class, Kaliabor, Nagaon would have no jurisdiction to try the CR Case No.554/2009. 36. For the aforesaid reasons, this criminal petition is allowed. The proceedings of CR Case No.554/2009 pending in the Court of the learned Judicial Magistrate, 1st Class, Kaliabor, Nagaon stands terminated at this stage. 37. However, not withstanding the above, the respondent or his daughter shall be at liberty to institute a fresh proceeding before the Criminal Court at Jorhat in respect of the allegations made in the above referred complaint No cost. Petition allowed.