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2013 DIGILAW 1284 (PAT)

Jayant Kumar Singh v. State Of Bihar

2013-11-12

BIRENDRA PRASAD VERMA

body2013
ORDER The petitioner has approached this Court under Section 482 of the Code of Criminal Procedure, 1973 (in short Cr.P.C) invoking its inherent powers for quashing the order dated 7.1.2013 passed by the learned Sub Divisional Judicial Magistrate, Sadar, Sitamarhi, in Trial No.1638 of 2013, arising out of Parihar P.S. Case No.134 of 2010 dated 9.10.2010/G.R.No.2540 of 2010, whereby and whereunder petition filed on behalf of the petitioner for his discharge in terms of Section 239 Cr.P.C. on merit as also on the ground of lack of territorial jurisdiction has been rejected. The petitioner has also prayed for quashing of his entire consequential criminal prosecution in the aforesaid criminal case primarily on the ground of lack of territorial jurisdiction of the learned Magistrate in conducting the trial with respect to offences in question. 2. Facts relevant for determination of issues raised on behalf of the parties are not in much dispute. Opposite party no.2 Vijay Laxmi Devi @ Nitu Singh gave her fardbeyan to the A.S.I. of Sitamarhi Police Station on 10.8.2010 at about 8 P.M. in the night alleging, inter alia, therein that her husband and in-laws made a demand of dowry and on non-fulfillment of the aforesaid demand of dowry, she was subjected to torture and cruelty. According to the aforesaid fardbeyan, the occurrence in question is said to have taken place at her marriage place at village Bariyarpur, PS Rajapakar, District Vaishali, in the State of Bihar as also at Village/Mohalla Shalugora near Hanuman Mandir, PS Bhakti Nagar, District New Jalpaiguri (Siliguri), in the State of West Bengal. On the basis of the said fardbeyan, Parihar P.S. Case No.134 of 2010 dated 9.10.2010 for offences under Sections 498A, 379, and 323 of the Indian Penal Code as also under Section 3/4 of the Dowry Prohibition Act, 1961 was instituted in the district of Sitamarhi and investigation commenced. On close of investigation, chargesheet was submitted under Sections 498A and 323 of the Indian Penal Code as also under Section 3/4 of the Dowry Prohibition Act, 1961 against the petitioner and four other co-accused persons. Accordingly, by an order dated 18.11.2011, cognizance was taken by the learned Chief Judicial Magistrate, Sitamarhi, and the case was transferred to the court of learned Sub Divisional Judicial Magistrate, Sadar, Sitamarhi, for trial and disposal. Accordingly, by an order dated 18.11.2011, cognizance was taken by the learned Chief Judicial Magistrate, Sitamarhi, and the case was transferred to the court of learned Sub Divisional Judicial Magistrate, Sadar, Sitamarhi, for trial and disposal. On receipt of summons from the transferee court, the petitioner appeared and subsequently on 10.7.2012, a petition was filed on his behalf under Section 239 Cr.P.C. for his discharge on merit of the case as also on the ground of lack of territorial jurisdiction of the learned trial court, i.e., the learned Sub Divisional Judicial Magistrate, Sadar, Sitamarhi, in conducting the trial of the petitioner, which has been rejected by the impugned order dated 7.1.2013. Hence the present application under Section 482 Cr.P.C. before this Court. 3. Learned counsel appearing on behalf of the petitioner has raised a very short question. He submitted that even if the case of the petitioner is not considered on merit in the light of allegations disclosed in the F.I.R. vide Annexure-1 lodged by the opposite party no.2, but on prosecution case itself the occurrence in question is said to have taken place either at village Bariyarpur, PS Rajapakar, in the District of Vaishali, or at village/mohalla Shalugora, PS Bhakti Nagar, District New Jalpaiguri (Siliguri), and no cause of action has arisen within the territorial jurisdiction of the learned S.D.J.M., Sadar, Sitamarhi, in the district of Sitamarhi. Therefore, according to him, the learned Sub Divisional Judicial Magistrate, Sadar, Sitamarhi, has no jurisdiction to proceed with the trial of the petitioner as also other accused persons in the aforesaid criminal case. It is submitted that in the factual backdrop of the criminal case, continuance of the criminal trial of the petitioner as also other accused persons is in violation of Section 177 Cr.P.C. and, therefore, it is fit to be quashed by this Court. In support of his above contention, he has placed reliance on the judgments of the Hon’ble Apex Court as also of this Court in the cases of Y.Abraham Ajith vs Inspector of Police [ (2004) 8 SCC 100 ], Bhura Ram vs. State of Rajasthan [2008 (3) PLJR (SC) 367] and Baijnath Singh vs. State of Bihar [ 2009 (3) PLJR 1012 ]. 4. 4. Learned Additional Public Prosecutor appearing on behalf of the State of Bihar as also the learned counsel appearing on behalf of the opposite party no.2 though have not disputed the factual aspects of the criminal case, but have submitted that the offence in question is a continuing one and, therefore, the learned Sub Divisional Judicial Magistrate, Sadar, Sitamarhi, has rightly rejected the petition filed on behalf of the petitioner. It is alternatively argued that if this Court comes to a finding that cause of action has not arisen within the district of Sitamarhi and the learned Sub Divisional Judicial Magistrate, Sadar, Sitamarhi, has no territorial jurisdiction to proceed with the trial, then in that case the opposite party no.2 may be permitted to seek her legal remedy before appropriate forum/court where cause of action had arisen and occurrence in question had taken place. In support of his contention, learned counsel appearing on behalf of the opposite party no.2 has placed reliance on a judgment of the Hon’ble Apex Court in the case of Trisuns Chemical Industry vs. Rajesh Agarwal [ AIR 1999 SC 3499 = 1999 Cri. L.J. 4325 = (1999) 8 SCC 686 ]. 5. In order to consider the rival contentions raised on behalf of the parties, it is relevant to examine the provisions of Sections 177 and 178 Cr.P.C. For better appreciation, Sections 177 and 178 Cr.P.C. are reproduced hereinbelow:- “177. Ordinary place of inquiry and trial.- Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. “178. Place of inquiry or trial.- (a) When it is uncertain in which of several local areas an offence was committed, or (b) where an offence is committed partly 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 areas than one, or (d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.” 6. On examination of Section 177 Cr.P.C. it is apparent that ordinarily an inquiry and trial with respect to an offence shall be conducted by the court within whose local jurisdiction occurrence in question is said to have taken place and thereby cause of action has arisen. On examination of Section 177 Cr.P.C. it is apparent that ordinarily an inquiry and trial with respect to an offence shall be conducted by the court within whose local jurisdiction occurrence in question is said to have taken place and thereby cause of action has arisen. However, Section 178 Cr.P.C. is an exception and it provides that in case there is an uncertainty about the actual place of occurrence or, occurrence had taken place at more than one place or, offence is continuing one and continues to be committed at more than one place, then in that case the inquiry or trial can be conducted by any court having territorial jurisdiction over any of the local areas where even part of cause of action has taken place. 7. Coming to the present case, this Court finds that though marriage between the petitioner and the opposite party no.2 was solemnized at paternal house of the opposite party no.2 in the district of Sitamarhi, but there is absolutely no allegation of demand of dowry, or torture/cruelty – physical or mental, to the opposite party no.2 by the accused persons due to non-fulfillment of demand of dowry, which can be said to have taken place within the territorial jurisdiction of district of Sitamarhi. As per the prosecution case itself, the entire occurrence either regarding demand of dowry or/and resultant torture to the opposite party no.2 by the accused persons had taken place at village Bariyarpur, i.e., marriage place of the opposite party no.2 in the district of Vaishali or at village/mohalla Shalugora in the district of New Jalpaiguri in the State of West Bengal, but there is nothing to show that offence in question was either repeated or continued while the opposite party no.2 was at her paternal house in the district of Sitamarhi. That being the factual position and in view of the law laid down by the Hon’ble Apex Court in the cases of Y. Abraham Ajith vs. Inspector of Police (supra), and Bhura Ram vs. State of Rajasthan (supra), no cause of action has arisen within the territorial jurisdiction of the learned Sub Divisional Judicial Magistrate, Sadar, Sitamarhi. The offence in question is not a continuing offence, therefore, the learned Sub Divisional Judicial Magistrate, Sadar, Sitamarhi, has no jurisdiction to proceed with the trial in question against the petitioner and other accused persons. The offence in question is not a continuing offence, therefore, the learned Sub Divisional Judicial Magistrate, Sadar, Sitamarhi, has no jurisdiction to proceed with the trial in question against the petitioner and other accused persons. The judgment cited by the learned counsel appearing for the opposite party no.2 does not support the case of the opposite party no.2, rather it supports the case of the petitioner. In the case of Trisuns Chemicals Industry vs. Rajesh Agarwal (supra) it was held by the Hon’ble Apex Court that a complaint petition or F.I.R. as also the order taking cognizance cannot be quashed on the ground of lack of territorial jurisdiction, but trial cannot be conducted by the Magistrate within whose local jurisdiction cause of action has not arisen. 8. In the aforesaid factual and legal background, the learned Sub Divisional Judicial Magistrate, Sadar, Sitamarhi, has committed an error of law in rejecting the petition filed on behalf of the petitioner and deciding to proceed further with the trial, even though he has recorded a finding of fact that occurrence in question had taken place at village Bariyarpur in the district of Vaishali or at village/mohalla Shalugora in the district of New Jalpaiguri. Therefore, the order impugned cannot be sustained. 9. For the reasons recorded above, the impugned order dated 7.1.2013 passed in Trial No.1638 of 2013 arising out of Parihar P.S.Case No.134 of 2012 by the learned Sub Divisional Judicial Magistrate, Sadar, Sitamarhi, as also consequential criminal prosecution of the petitioner as also other accused persons in the aforesaid criminal case, are hereby quashed and set aside. However, the opposite party no.2 is granted liberty to file a fresh complaint petition in the appropriate court or take appropriate legal action before appropriate forum with respect to the occurrence in question, if so advised, which shall be taken to its logical conclusion by the competent court/forum in accordance with law. 10. In the result, the application stands allowed to the extent indicated above.