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2014 DIGILAW 186 (GAU)

IQUBAL HUSSAIN v. STATE OF ASSAM

2014-02-14

A.K.GOSWAMI

body2014
JUDGMENT AND ORDER (CAV) This is an application under Section 407 of Criminal Procedure Code, 1973, for short, the Code, for transfer of the Complaint Case from the Court of Chief Judicial Magistrate, Kamrup to the Court of Chief Judicial Magistrate, Nalbari. 2. The petitioner No. 1, petitioner No. 2 and petitioner No. 3 are the husband, mother-in-law and brother-in-law of the opposite party No. 2, respectively. 3. The case set out in the present petition is that the opposite party No. 2 filed a Complaint Case in the Court of Chief Judicial Magistrate, Kamrup, on 05.05.2012, against the petitioners as accused, praying for taking cognizance of offences under Sections 498-A/406/34 IPC and to issue search warrant for recovery of her stridhan and to hand over the same to her. 4. Heard Mr. S Sinha, learned counsel for the petitioners. Also heard Mr. FKR Ahmed, learned counsel appearing for opposite party No. 2. 5. There is no representation on behalf of the State of Assam which is arrayed as opposite party No.1. 6. Learned counsel for the petitioners submits that the Complaint Petition does not disclose ingredients of offences under Section 498-A/406 IPC and such complaint was filed in Guwahati roping in the family members of the petitioner No. 1 in order to cause harassment. It is further submitted that not even a part of the offences alleged was committed within the local jurisdiction of the Court at Guwahati. 7. Further submission of Mr. S Sinha is that having regard to the allegations in the complaint, even though Section 498-A IPC is a continuing offence, Section 178 (c) is not attracted so as to confer jurisdiction to the Courts at Guwahati. 8. On the aforesaid contentions, learned counsel submits that as the Court at Nalbari, admittedly, has jurisdiction, the case should be transferred to the Court of Chief Judicial Magistrate, Nalbari. 9. In support of his submission, learned counsel pressed into service judgments of the Apex Court rendered in the cases of (i) Bhura Ram and Ors. Vrs. State of Rajasthan and Anr., reported in (2008) 11 SCC 103 , (ii) Sunita Kumari Kashyap Vrs. State of Bihar and Anr., reported in (2011) 11 SCC 301 , (iii) Y Abraham Ajith and Ors. Vrs Inspector of Police, Chennai and Ors., reported in (2004) 8 SCC 100 and a decision of this Court in (iv) Parashmoni Konwar and Anr. Vrs. State of Bihar and Anr., reported in (2011) 11 SCC 301 , (iii) Y Abraham Ajith and Ors. Vrs Inspector of Police, Chennai and Ors., reported in (2004) 8 SCC 100 and a decision of this Court in (iv) Parashmoni Konwar and Anr. Vrs. Parimita Shyam Konwar and Anr., reported in (2006) 1 GLT 214. 10. Mr. FKR Ahmed, learned counsel appearing for opposite party No. 2, in his turn, submits that the opposite party No. 2 belongs to a poor family and she is a victim of cruelty committed by her husband and his family members and in order to save her life, she came to the house of her parents at Guwahati. 11. Learned counsel submits that there is no manner of doubt that Section 498-A of the Code is a continuing offence and therefore, the fact that she had to leave her matrimonial house because of cruelty meted out to her and has to live with her parents at Guwahati, Section 178 (c) of the Code is applicable in the facts and circumstances of the case. He also relies on the judgment in the case of Sunita Kumari (supra). 12. I have heard the learned counsel for the parties and have perused the materials available on record. 13. In the complaint petition, it is stated that after about 2 (two) months of her marriage with the petitioner No. 1, Rs 2,00,000/- was demanded as dowry and on her refusal to accept the demand of dowry, she was assaulted. The petitioner Nos. 2 and 3 also collaborated with the petitioner No.1 in demanding dowry and she was subjected to immense torture at the instance of all the accused persons, both mentally and physically. 14. Allegations are also made that on 15.04.2012, there was an attempt made by the accused persons to kill her by burning after pouring kerosene oil but she could save her life by raising hue and cry and since then, she had been residing at her parental home at Guwahati. In the complaint petition, there is no allegation that after she had come to her parental home, there was any further act of cruelty at Guwahati. 15. Section 177 of the Code provides that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. 16. In the complaint petition, there is no allegation that after she had come to her parental home, there was any further act of cruelty at Guwahati. 15. Section 177 of the Code provides that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. 16. Section 178 provides that (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 continuing one, and continues to be committed in more local areas than one, it may be enquired into or tried by Court having jurisdiction over any of such local areas. 17. In the case of State of Bihar Vrs. Deokaran Nenshi and Anr., reported in (1972) 2 SCC 890 , it was observed by the Apex Court that a continuing offence is one which is susceptible of continuance and is distinguished from the one which is committed once and for all. It is one of those offences which arise out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and reoccurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues, and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all. 18. The expression “cause of action” is normally used in civil cases. In Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. However, the variations in expression do not really make any difference relating to jurisdiction of a Court to try a case. 19. “Cause of action” consists of a bundle of facts, which would go to enforce the legal enquiry for redress in a Court of law. However, the variations in expression do not really make any difference relating to jurisdiction of a Court to try a case. 19. “Cause of action” consists of a bundle of facts, which would go to enforce the legal enquiry for redress in a Court of law. In other words, the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the Court. Every fact, which is necessary to be proved, comprises in cause of action. 20. The Apex Court had considered the meaning of the expression “cause of action” in Y Abraham Ajith (supra) as follows: “16. The expression “cause of action” has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts. 17. The expression “cause of action” is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases for sitting; a factual situation that entitles one person to obtain a remedy in court from another person. In Black’s Law Dictionary a “cause of action” is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In Words and Phrases (4th Edn.), the meaning attributed to the phrase “cause of action” in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. 18. In Halsbury’s Laws of England (4th Edn.) it has been stated as follows: “Cause of action” has been defined as meaning simply a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. “Cause of action” has also been taken to mean that a particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action.” On the basis of the averments made in the complaint petition, the Apex Court held that no part of cause of action had arisen in Chennai and accordingly, had quashed the proceeding in the Court of the learned Magistrate at Chennai. 21. In Sujata Mukherjee Vrs. Prashant Kumar Mukherjee, reported in (1997) 5 SCC 30 , the salient facts were that the wife was the appellant before the Apex Court and the respondents were husband, parents-in-law and two sisters-in-law of the appellant. The gravamen of the allegations of the appellant Sujata Mukherjee was that on account of dowry demands, she had been maltreated and humiliated not only in the house of her in-laws at Raighar but as a consequences of such events, the husband of the appellant had also come to the house of her parents at Raipur and assaulted her. Complaint was filed by the appellant in the Court of the learned Chief Judicial Magistrate, Raipur, who issued summons. 22. Two criminal revision petitions came to be filed against the refusal of the learned Chief Judicial Magistrate to recall the summons or to transfer the case to the Court at Raighar. The jurisdictional High Court took the view that the complaint made by the appellant was not maintainable at Raipur in respect of other accused persons except the husband and that such complaint is maintainable only against the husband at Raipur. 23. The Apex Court held that offence being a continuing one having been committed in more local areas including at Raipur, the learned Magistrate at Raipur has jurisdiction to proceed with the criminal case in his Court. The Apex Court observed that in such continuing offence against the appellant, on some occasions all the respondents had taken part and on other occasion, one of the respondents had taken part and therefore, Section 178 (c) is attracted. 24. The Apex Court observed that in such continuing offence against the appellant, on some occasions all the respondents had taken part and on other occasion, one of the respondents had taken part and therefore, Section 178 (c) is attracted. 24. In Bhura Ram (supra), the case of the complainant was that she had left the place where she was residing with her husband and in-laws and came to Sri Ganga Nagar, State of Rajasthan. All the alleged acts, as per the complaint, had taken place in the State of Punjab and therefore, the Apex Court observed that the Court at Rajasthan did not have any jurisdiction to deal with the matter and consequently, quashed the proceeding pending before the Court of Additional Chief Judicial Magistrate, Sri Ganga Nagar. Direction was given for returning of the complaint to the complainant and it was observed that she may file the same in the appropriate Court to be dealt with in accordance with law. 25. In Sunita Kumari Kashyap (supra), the brief facts were to the effect that the appellant Sunita Kumari Kashyap was married to one Sanjay Kumar Saini as per hindu rites and ceremonies at Gaya. At the time of her marriage, her father had gifted many articles and cash of Rs. 2,50.000/-. However, she was harassed and tortured immediately after marriage by her in-laws for bringing less dowry. Additional demand of Rs. 4,000,00/- was also made and when she was in the family way, she was forcibly taken from her matrimonial home at Ranchi and brought to her parental home at Gaya where she gave birth to a girl child, which worsened her plight. The husband came up with a new demand that unless her father gave his house at Gaya to him, she will not be taken back to her matrimonial house at Ranchi. With these broad allegations, she had lodged an FIR under Sections 498-A/406 IPC read with Section 34 IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961, for short, DP Act, in a Police Station at Gaya. 26. Cognizance was taken by the learned Chief Judicial Magistrate, Gaya under Sections 498-A/406 IPC read with Section 34 IPC and Sections 3 and 4 of the DP Act. The learned Magistrate also rejected an objection taken that the Court at Gaya had no jurisdiction. 26. Cognizance was taken by the learned Chief Judicial Magistrate, Gaya under Sections 498-A/406 IPC read with Section 34 IPC and Sections 3 and 4 of the DP Act. The learned Magistrate also rejected an objection taken that the Court at Gaya had no jurisdiction. Against the said order, a revision application was filed before the High Court and the High Court took the view that the proceedings at Gaya are not maintainable for lack of jurisdiction. 27. The Supreme Court reversed the order of the High Court holding that it was the assertion by the appellant about 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, the offence being continuing one having been committed in more local areas and one of the local areas being Gaya, the learned Magistrate at Gaya will have jurisdiction to try the case instituted therein. It was held that the episode at Gaya was only a consequence of continuing offence of harassment and ill-treatment meted out to the complainant and Section 178(c) of the Code clearly gets attracted. 28. In Parashmoni (supra), at the stage of trial, this Court allowed the transfer petition under Section 407 of the Code on the ground that no part of cause of action had arisen at Sonari where the complaint was filed and consequently, directed the case to be transferred from the Court at Sonari to the Court of the learned Magistrate at Guwahati, where cause of action had arisen. 29. A perusal of the instant complaint petition goes to show that all the alleged acts of cruelty had taken place in her matrimonial house at Nalbari and not at Guwahati where she had come to reside. It is also not a case where she had been forcibly taken to her parental home at Guwahati or that in continuance of the offence committed at Nalbari, further acts of cruelty had been committed at Guwahati. There is no allegation whatsoever that any act of cruelty was committed at Guwahati. In such factual matrix Section 178 (c) of the Code is not attracted. Accordingly, it is held that the Court at Guwahati does not have jurisdiction to try the case. 30. There is no allegation whatsoever that any act of cruelty was committed at Guwahati. In such factual matrix Section 178 (c) of the Code is not attracted. Accordingly, it is held that the Court at Guwahati does not have jurisdiction to try the case. 30. In view of the above discussions, this transfer petition is allowed providing that the CR Case No. 117/12 under Sections 498-A/406/34 IPC, pending in the Court of the learned Judicial Magistrate, 1st Class, Kamrup, be transferred to the Court of the learned Chief Judicial Magistrate, Nalbari. Accordingly, the learned Judicial Magistrate, 1st Class, Kamrup, Guwahati will transfer the case records to the Court of the learned Chief Judicial Magistrate, Nalbari. The case will be tried by the learned Chief Judicial Magistrate, Nalbari or by any other competent Court to which the case is assigned by the learned Chief Judicial Magistrate, Nalbari. 31. The opposite party No. 2 is not required to attend the Court at Nalbari on each and every date and she may be represented through her counsel. The opposite party No. 2 may remain present in Court only when her personal appearance is necessarily required. The parties to the proceeding will appear before the learned Chief Judicial Magistrate, Nalbari on 02.04.2014. 32. Resultantly, the petition is allowed. No cost.