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2015 DIGILAW 1045 (JHR)

Dineshwar Jha v. State of Jharkhand

2015-09-04

H.C.MISHRA

body2015
ORDER : 1. Heard learned counsel for the petitioners and learned counsel for the State, as also learned counsel for the complainant opposite party No. 2. 2. The petitioners have prayed for quashing the order dated 12.9.2006 passed by the learned Sub-Divisional Judicial Magistrate, Bokaro, in C.P Case No. 279 of 2006, whereby, the prima facie offence under Sections 498-A & 323 of the Indian Penal Code, has been found against the petitioners. The petitioners have also prayed for quashing the entire criminal proceeding against them in the said complaint case. 3. The facts of this case lie in a short compass. The complaint case was filed by the complainant opposite party No. 2 in the Court of the Chief Judicial Magistrate, Bokaro, stating that she is the legally wedded wife of the co-accused, Shankar Jha. The petitioners are the in-laws of the complainant. In the complaint petition, it is stated that the marriage between the co-accused and the complainant had taken place at Bokaro on 21.6.1995 and thereafter, she was taken to her matrimonial home at Darbhanga, in the State of Bihar. In the complaint petition, there is allegation against the accused persons, including the husband to have subjected the complainant to cruelty and torture, including assaults for the demand of dowry and there are other allegations also in the complaint petition. According to the complaint petition, all the overt acts of cruelty, torture and assaults had taken place at the matrimonial home in the District of Darbangha. It is alleged in the complaint petition that while she was pregnant, she was assaulted on her abdomen, after which she came back to Bokaro, where she gave birth to a still born child on 19.8.1996. However, she again came back to her matrimonial home at Darbhanga, where she was subjected to same fate. It is alleged in the complaint petition that due to the cruelty and torture, she came back to her parents' place at Bokaro, and thereafter, the complaint case was filed in the Court of the learned Chief Judicial Magistrate, Bokaro, on 1.6.2006, which was registered as Complaint Case No. 279 of 2006. 4. The statement of the complainant was recorded on solemn affirmation and four witnesses were also examined in the enquiry stage. 4. The statement of the complainant was recorded on solemn affirmation and four witnesses were also examined in the enquiry stage. On the basis of the allegations made in the complaint petition and the statements of the complainant and the witnesses examined at the enquiry stage, the Court below has found the prima facie offence under Sections 323 and 498-A of the Indian Penal Code against the petitioners and has ordered for issuance of summons against them. 5. Learned counsel for the petitioners has submitted that from the perusal of the entire complaint petition, it is apparent that no part of the occurrence had taken place at Bokaro, rather all the allegations of subjecting the complainant to cruelty and torture relate to Darbhanga, in the State of Bihar. Learned counsel, accordingly, submitted that the Court at Bokaro had no territorial jurisdiction to entertain the complaint case and accordingly, even the impugned order passed by the Court below, finding the prima facie offence against the petitioners is absolutely illegal and cannot be sustained in the eyes of law. 6. Learned counsel for the State, as also learned counsel for the complainant opposite party No. 2 have opposed the prayer. It is also pointed out by the learned counsel for the complainant-opposite party No. 2 that in her statement recorded on solemn affirmation, the complainant had replied to the Court's question that at Bokaro also her husband had abused and demanded the dowry. It is also submitted that the other enquiry witnesses have also supported this fact. It is also submitted by learned counsel, that in the complaint petition, it is alleged that the complainant had given the birth to a still born child at Bokaro, which was due to the assaults made to her at her matrimonial home. Learned counsel accordingly, submitted that the part of cause of action had taken place at Bokaro also, and accordingly, the Court below has rightly taken the cognizance of the offence against these petitioners and there is no infirmity in the impugned order. 7. In support of his contention, learned counsel for the petitioners has placed reliance upon the decision of the Hon'ble Apex Court in Sunita Kumari Kashyap vs. State of Bihar & Another, (2011) 11 SCC 301 . 7. In support of his contention, learned counsel for the petitioners has placed reliance upon the decision of the Hon'ble Apex Court in Sunita Kumari Kashyap vs. State of Bihar & Another, (2011) 11 SCC 301 . In that case the matrimonial home of the victim was at Ranchi, whereas her parental home was at Gaya, in the State of Bihar, and there was allegation against the in-laws to have subjected her to cruelty and torture at Ranchi and some part of the cause of action had also taken place at Gaya. The victim had filed the complaint case in the Court at Gaya, which was challenged by the accused persons in the High Court at Patna, which found that the proceedings at Gaya were not maintainable for the lack of jurisdiction and the criminal proceeding was quashed. The complainant, thereafter, moved the Hon'ble Supreme Court of India, in which, the Apex Court had held that since the part of the occurrence had taken place at Gaya also, the Court at Gaya had the jurisdiction to entertain the complaint. Placing reliance on this decision, learned counsel for the opposite party No. 2 has submitted that the Court at Bokaro has the territorial jurisdiction to entertain the complaint case and accordingly, there is no illegality in the impugned order, or the continuance of the criminal proceeding against the petitioners in the Court at Bokaro. 8. After having heard the learned counsels for both the sides and upon going through the record, I find that in the complaint petition, there is no averment at all that any part of the occurrence had taken place at Bokaro. All the allegations of assaults etc., as alleged in the complaint petition, had taken place at Darbhanga, in the State of Bihar. Though it is alleged that at one point of time, the complainant had come back to her parents' house, where she had given birth to a still born child due to assaults made at her in-law's place, but the fact remains that she had given birth to the still born child on 19.8.1996, but the complaint has been filed after the gap of about ten years, in the year 2006 and no complain about that alleged occurrence had been made at the appropriate time. This apart, even for that alleged occurrence she had been allegedly assaulted at Darbhanga itself. This apart, even for that alleged occurrence she had been allegedly assaulted at Darbhanga itself. Though while answering the Court's question, the complainant has stated that she was abused by her husband at Bokaro also, where the demand of dowry was also made, and the enquiry witnesses have also supported this, but this is only an improvement upon the complaint case by the complainant and the enquiry witnesses. There is no such averment in the entire complaint petition and according to the allegations in the complaint, no part of the occurrence had taken place at Bokaro. 9. In Sunita Kumari Kashyap's case (supra), relied upon by the learned counsel for the complainant opposite party No. 2, the averments made in the complaint case have been detailed in paragraph 9. The complainant in the said case had specifically asserted that after keeping her entire jewelry and articles, on 24.12.2006, her husband brought her at Gaya and left her there warning that till his demands are met, she has to stay at Gaya and if she tries to come back without meeting those demands she will be killed. Thus, the facts of that case clearly show that there is specific allegation of demanding the dowry at Gaya by her husband, with the threatening of dire consequences. In that backdrop, the Apex Court has held as follows:- "18. 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." (Emphasis supplied). 10. 10. This decision clearly shows that the Apex Court had taken into consideration the fact that 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 and in that view of the matter, it was held that the offence was continuing at Gaya also and the Court at Gaya had the territorial jurisdiction to entertain the complaint. 11. In the present case, there is no such averment in the entire complaint petition that any part of the cause of action had taken place at Bokaro, and as such the decision relied upon by learned counsel for the complainant is not at all applicable to the facts of this case. In my considered view, in the facts of this case, the Court at Bokaro has no territorial jurisdiction to entertain the complaint and the Court below ought to have taken into consideration the fact that the reply given by the complainant to the Court's question was only an improvement made upon the complaint case by the complainant and subsequently, by the witnesses examined in the enquiry stage, only in order to create the territorial jurisdiction in the Court below. 12. As such, this is a fit case for quashing the criminal proceeding against the petitioners in the Court below as there is complete lack of jurisdiction for entertaining the complaint case. 13. In view of the aforementioned discussions, the impugned order dated 12.9.2006 passed by the learned Sub-Divisional Judicial Magistrate, Bokaro, in C.P Case No. 279 of 2006, as also the entire criminal proceeding against the petitioners in the said case, are hereby, quashed. 14. The complainant is given the liberty to bring her cause of action in the Court of the competent jurisdiction and she may even take back her complaint petition from the Court below, for being presented in the Court of competent jurisdiction. 15. This application is accordingly, allowed, with the directions as above. Let the Lower Court Records be sent back forthwith.