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2014 DIGILAW 102 (GAU)

Dilip Kumar Sen Gupta v. Shiuli Sen

2014-01-28

A.K.GOSWAMI

body2014
JUDGMENT Arup Kumar Goswami, J. 1. Heard Mr. R.P. Sarmah, learned Senior counsel for the petitioners. Also heard Mr. S. Dutta, learned counsel appearing for the respondent. By this application under Section 482 Cr.P.C., read with Article227 of the Constitution of India, the petitioners have challenged the orders dated 12.08.2013 and 06.09.2013 whereunder search - warrant under Section 93(1)(c) of Cr.P.C was issued by the learned Sub-Divisional Judicial Magistrate, Hojai, Sankardev Nagar in CR Case No. 313/2013. 2. The pleaded case in the petition is that the respondent is the daughter-in-law of petitioner No. 3 and she was married to the elder son of the petitioner No. 3 on 25.05.2009 and after marriage they started to live at Dibrugarh where her son was working as a Railway employee. The petitioner No. 1 is the brother of the petitioner No. 3 and the petitioner No. 2 is the youngest son of the petitioner No. 3. 3. On 08.03.2013, husband of the respondent committed suicide and at that relevant point of time, the respondent was at her paternal house at Lumding. She reached Dibrugarh on the next day after the cremation of the dead body. It is alleged that after completion of the shradha ceremony, the respondent started to torture the petitioner No. 3 and she was not allowed to use the toilet, bathroom and running water of the quarter. She, after locking the railway quarter, had left for her paternal house carrying all valuable gold ornaments and other properties. The petitioner No. 3 filed an ejahar before the Officer-in-Charge, Dibrugarh Police Station on 11.04.2013 accusing the respondent Of abetting the suicide. The police, after receiving the ejahar, registered a case being Dibrugarh PS Case No. 447/13 under Section 306 IPC. It is also averred in the petition that the respondent was having an illicit affair leading the husband to commit suicide. 4. An ejahar dated 10.04.2013 was filed by the respondent stating that barely after 10 (ten) minutes of her arrival at Dibrugarh, the accused persons as named therein, namely, the petitioner Nos. 1 and 2 and some other family members, forcibly took the dead body for performing the last rituals. She had expressed doubt that her husband might have been murdered. Accordingly, Dibrugarh PS Case No. 443/2013 under Sections 384/385/506/34 IPC was registered. 5. 1 and 2 and some other family members, forcibly took the dead body for performing the last rituals. She had expressed doubt that her husband might have been murdered. Accordingly, Dibrugarh PS Case No. 443/2013 under Sections 384/385/506/34 IPC was registered. 5. The respondent, thereafter, filed a petition for taking cognizance of offence under Section406/120(B)/34 IPC before the Court of Sub-Divisional Judicial Magistrate, Hojai, Sankardev Nagar and seeking direction for recovery of Stridhan and other properties of her husband and to give zimma to her and the said case was registered as CR No. 313/2013. 6. Pursuant to the filing of the said petition, the learned Magistrate passed the order dated 12.08.2013 issuing search-warrant under Section 93(1)(c) Cr.P.C to the Officer-in-Charge, Dibrugarh Police Station, Dibrugarh to search the railway quarter No. 69/H for recovery of Stridhan property and other properties of the husband as mentioned in the complaint petition. 7. Order dated 06.09.2013 was subsequently passed issuing the search-warrant afresh as the search warrant was returned without execution on the ground that the premises were under lock and key. In the said order, the learned Magistrate noted the powers of the police officer under Section 100Cr.P.C. 8. An affidavit was filed by the respondent denying the allegations made against her in the application before this Court. It is further stated that the death of her husband took place on 07.03.2013. It is claimed that the petitioner No. 3 is drawing monthly pension of Rs. 6,300/- on account of her late husband being an employee of railways. 9. Mr. R.P. Sarmah, learned senior counsel for the petitioners has submitted by taking me through the petition filed before the Court at Hojai, Sankardev Nagar annexed as Annexure-3, that on a plain reading of the petition, it will become clear that no part of cause of action had arisen within the local jurisdiction of Court at Hojai, Sankardev Nagar and as no cause of action had arisen there, in terms of Section 177 Cr.P.C., the Court at Hojai, Sankardev Nagar does not have territorial jurisdiction to take cognizance of the case and to pass the impugned orders and on that ground, the impugned orders are liable to be set aside and quashed. 10. Per contra, Mr. 10. Per contra, Mr. Dutta, learned counsel for the respondent has submitted that in view of allegation of criminal breach of trust, the Court at Hojai, Sankardev Nagar will have jurisdiction under Section181(4) of Cr.P.C. 11. It is submitted by him that the Stridhan property was delivered to the deceased husband and the accused persons at the time of the solemnization of marriage at Lumding which is within the territorial jurisdiction of the Court at Hojai, Sankardev Nagar. 12. I have heard the submissions of the learned counsel for both the parties and have also perused the materials available on record. 13. Section 177 of the Cr.P.C. deals with the ordinary place of inquiry and trial, and reads as follows: 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. Section 177 reiterates the well-established common-law rule that the proper and ordinary venue for the trial of a crime is the area of jurisdiction in which, on the evidence, the facts occur and which are alleged to constitute the crime. However, there are several exceptions to this general rule. 14. Section 181(4) Cr.P.C. which has relevance for the purpose of this case reads as follows: 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. 15. Thus Section 181(4) Cr.P.C 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. 16. In paragraph 7 of the application, it is averred as follows: That, in the meantime the respondents filed a petition before the court of Sub-Divisional Judicial Magistrate, Hojai, Nagaon seeking direction from the Hon'ble court for recovery of "Stridhan" and other properties of her husband. The said case was registered as C.R. No. 313/2013. 17. 16. In paragraph 7 of the application, it is averred as follows: That, in the meantime the respondents filed a petition before the court of Sub-Divisional Judicial Magistrate, Hojai, Nagaon seeking direction from the Hon'ble court for recovery of "Stridhan" and other properties of her husband. The said case was registered as C.R. No. 313/2013. 17. In paragraph 3 of the complaint petition, it is mentioned that all the stridhan property were received by accused persons and deceased husband at the time of marriage at Lumding from the complainant party. 18. In paragraph 7 of the complaint petition it is stated that after the shradha ceremony of the deceased husband was performed, the accused persons alongwith some local muscle men had forcefully driven away the respondent from the railway quarter No. 69/H alongwith her parents and had also threatened them and had locked the door of the railway quarter, as a result of which the complainant had to leave the goods, articles and documents as listed therein in paragraph 8 inside the said railway quarter No. 69/H. List of 28 (twenty eight) items such as two Nos. of beds, one Dunlop sofa set, dressing table, washing machine etc. are given therein. 19. There is also a list of items in paragraph 6 of the complaint, such as death certificate of the husband, money bag with some important documents, SBI ATM card, etc which were taken away from the possession of the complainant. 20. Though a faint attempt was made by Mr. Sarmah that the items listed in paragraph 8 were not described as the stridhan articles, this Court is unable to accept the said contention as the complaint has to be read in its entirety. It is the perception of the petitioners themselves that the complaint case was filed for recovery of stridhan and other property as mentioned in paragraph 7 of the present application. 21. When the stridhan articles were received at Lumding within the territorial jurisdiction of the Court at Hojai and when the allegation of criminal breach of trust is made, in the considered opinion of the Court, the Court at Hojai, Sankardev Nagar will have territorial jurisdiction to proceed with the matter in terms of Section 181(4) Cr.P.C. In that view of the matter, this Court does not find any merit in the present application and accordingly, the same is dismissed.