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2015 DIGILAW 1539 (GAU)

Balkishan Dhandhania v. Nidhi Dhandhania

2015-12-17

C.R.SARMA

body2015
JUDGMENT AND ORDER : C.R. Sarma, J. By these three criminal petitions, filed under Section 482 of the Code of Criminal Procedure (for short, Cr.P.C.), the petitioners, who are the accused persons in the concerned complaint cases, as indicated hereinafter, have prayed for quashing the proceedings in C.R. Case No. 475/2014, under Sections 498(A)/34 IPC and C.R. Case No. 463/2014, under Section 406 IPC, and the order, dated 28.02.2014, whereby the learned Judicial Magistrate 1st Class, Kamrup, Guwahati took cognizance of offence under Section 498(A)/34 IPC, in CR Case No. 475/2014, against the petitioners (in Crl. Petition No. 416/2014 and Criminal Petition No. 464/2014) and the order dated 04.04.2014, whereby cognizance was taken, under Section 406 IPC, in CR Case No. 463 of 2014, against the husband petitioner in Criminal Petition No. 443 of 2014. 2. I have heard Mr. Z. Alam, learned Counsel, appearing for the petitioners and Mr. G.N. Sahewalla, learned Sr. Counsel, assisted by Ms. R. Jain, learned Counsel, appearing for the respondents. 3. As this set of criminal petitions relate to matrimonial dispute between the same parties, represented by the same set of Counsel, for the sake of convenience and as agreed to by the learned Counsel for the parties, I propose to dispose of the criminal petitions aforesaid by this common order. 4. The Criminal Petition No. 416/2014 has been filed by the husband of the complainant seeking quashment of C.R. Case No. 475/2014 under Section 498/34 IPC, while Criminal Petition No. 464/2014 has been filed by the members of the in-laws of the complainant, seeking quashment of the proceeding in C.R. Case No. 475/2014, under Section 498(A)/34 IPC. The Criminal Petition 443/2014 has been filed by the husband of the respondent seeking quashment of the proceedings in C.R. Case No. 463/2014, under Section 406 IPC. 5. The private respondent, i.e. the complainant, in the said complaint cases, was married by the accused No. 1 i.e. the petitioner in Criminal Petition No. 464/2014, on 08.12.2001, at Diamond Palace, Kavi Nagar, Ghaziabad, in the State of Uttar Pradesh and she used to live in her said matrimonial house at Ghaziabad. As alleged by the complainant, during her stay in the marital home, she was subjected to torture by her said husband and other members of his family in connection with demand of dowry. 6. As alleged by the complainant, during her stay in the marital home, she was subjected to torture by her said husband and other members of his family in connection with demand of dowry. 6. Out of the said cohabitation, a male child was born to her, on 08.10.2004, but, her husband and other members of his family (all accused persons) demanded her to bring an amount of Rs. 50 Lakhs from her parents and continued with the torture, both mentally and physically. However, she tolerated all such tortures for the sake of her family life and in 2010, a female child was born to her. Being unable to bear with the continued torture, she had to leave her matrimonial home, on 22.04.2012 and took shelter in her parent's house at Guwahati, leaving her minor son with the petitioners. As alleged by the complainant, on 18.03.2013, the accused persons came to Guwahati for taking the female child and demanded Rs.10 Lakhs from her parents. Though, the complainant, along with her parents, visited her marital home, on 24.04.2013, the accused persons demanded Rs. 10 Lakhs as a condition precedent for accepting her. Having no other alternative, the complainant filed an application at Gaziabad Court, seeking custody of her male child and another suit in the Civil Court at Gaziabad, being Original Suit No. 1114/2013, seeking a decree of divorce. She has alleged that, during her stay in her parent's house also, the petitioner used to telephonically threaten her demanding money. 7. In view of torture, in connection with demand of dowry and refusal to return her streedhan properties, the complainant, after her return to Guwahati (paternal house) filed Complaint Case No. 475/2014 under Sections 498(A)/406/34 IPC and Complaint Case No. 463/2014, against the petitioners. The learned Judicial Magistrate 1st Class, Guwahati, by his order, dated 28.02.2014, after examining the complainant, in C.R. Case No. 475/2014, under Section 200 Cr.P.C., took cognizance of offence under Section 498 (A)/34 IPC against the petitioners and other accused persons and issued summons. 8. The learned Magistrate, by his order, dated 04.04.2014 (i.e. after taking cognizance in C.R. Case No. 475/2014), passed in CR Case No. 463/2014) took cognizance of offence under Section 406 IPC against the husband only (petitioner in Criminal Petition No. 443/2014). 9. 8. The learned Magistrate, by his order, dated 04.04.2014 (i.e. after taking cognizance in C.R. Case No. 475/2014), passed in CR Case No. 463/2014) took cognizance of offence under Section 406 IPC against the husband only (petitioner in Criminal Petition No. 443/2014). 9. Aggrieved by the said proceedings and the orders of taking cognizance, the petitioners have come up with this set of quashing petitions, on the grounds, amongst others, that, as the alleged offences took place at Ghaziabad, the Court at Guwahati, has no jurisdiction and that, in view of refusal to take cognizance under Section 406 IPC in CR Case No. 475/2014, the subsequent cognizance (dated 04.04.2014), taken under Section 406 IPC in CR Case No. 463/2014 is not maintainable, inasmuch as the order, dated 04.04.2014, was obtained suppressing the fact that the learned Magistrate, at the time of taking cognizance on 28.02.2014, in CR Case No. 475/2015, refused to take cognizance under Section 406 IPC. It is also the contention of the petitioners that the complainant herself had left the marital home without sufficient reasons and as such, the proceedings can't be maintained for want of cause of action and lack of territorial jurisdiction. The third ground, taken by the petitioners, is that, the petitioners, being residents of Gaziabad i.e. a place, outside the jurisdiction of the Court at Guwahati, the learned Magistrate, instead of taking cognizance under Section 498(A)/34 IPC and issuing summons, in C.R. Case No. 475/2014, ought to have postponed the issue of process, as required by Section 202 Cr.P.C. and either make an enquiry into the matter himself or direct an investigation and that due to non compliance of the said statutory provision, the cognizance, taken by the learned Magistrate under Section 498(A)/34 is liable to be set aside. 10. Mr. Z. Alam, learned Counsel, appearing for the petitioners, submitted that the marriage between the said couple was performed at Gazhiabad and after their marriage and they used to live there, till the time of return of the private respondent (i.e. the complainant) to Guwahati and that no occurrence took place at Guwahati. Therefore, it is submitted by Mr. 10. Mr. Z. Alam, learned Counsel, appearing for the petitioners, submitted that the marriage between the said couple was performed at Gazhiabad and after their marriage and they used to live there, till the time of return of the private respondent (i.e. the complainant) to Guwahati and that no occurrence took place at Guwahati. Therefore, it is submitted by Mr. Alam, learned Counsel for the petitioners, that in view of the statutory provision, prescribed by Section 177 Cr.P.C., the learned Magistrate at Guwahati has no jurisdiction to entertain the complainants aforesaid and as such the complaints are liable to be quashed on the said ground alone. 11. The learned Counsel, for the petitioners, has also submitted that, as the marriage was performed at Ghaziabad i.e. a place outside the jurisdiction of the Court at Guwahati, no entrustment of 'stridhan properties' took at Guwahati and as such the learned Magistrate, Guwahati lacks the jurisdiction to take cognizance of offence under Section 406 IPC also. 12. It is also submitted that the complainant, in CR Case No. 475/2014, made allegations of committing the offences under Sections 498(A) and 406/34 IPC, but the learned Magistrate, by his order, dated 18.02.2014, while taking cognizance under Section 498(A)/34 IPC, refused to take cognizance under Section 406 IPC and as such, the subsequent cognizance, dated 04.04.2014, taken under Section 406 IPC in CR Case No. 463/2014, on the same facts is not maintainable, inasmuch as the same was obtained by suppressing the fact that, earlier, in C.R. Case No. 475/2014, Court refused to take cognizance under Section 406 IPC. It is contended that the complainant obtained the said order by suppressing fact and playing fraud on the Court. 13. It has also been contended that there is no specific allegation regarding demand of dowry and that the allegations, made in the complaint, don't disclose the ingredients of the offences under Sections 498(A) and 406 IPC. It is further submitted that the allegations, made in the complaint, are vague and bereft of any particulars, relating to the date, time and the role, played by each of the accused persons and that the complaints have been made with mala fide and ulterior motive for wrecking vengeance on the petitioners inasmuch as, the complaints have been filed after filing of a suit for divorce. 14. 14. The learned Counsel has also contended that the unexplained delay of about 1 (one) year, in filing the complaints, indicates that the complaints have been filed only to harass and humiliate the petitioners and members of their family. It is further submitted that there being no allegations of misappropriation of stridhan properties at Guwahati, the said proceeding, under Section 406 IPC, can't be allowed to be continued at Guwahati, for want of territorial jurisdiction and that the complaint is liable to be returned to the complainant for filing the same in the appropriate Court. 15. With the above submissions, the learned Counsel for the petitioners has prayed for quashing the complaints aforesaid. In support of his contentions, the learned Counsel, for the petitioners, has relied on the following decisions: (i) Y. Abraham Ajith v. Inspector of Police, reported in (2004) 8 SCC 100 ; (ii) Bhura Ram and Others v. State of Rajasthan and Another, reported in (2008) 11 SCC 103 ; (iii) Kishan Singh (Dead) Through Lrs. v. Gurpal Singh and Others, reported in (2010) 8 SCC 775 ; (iv) Udain Shankar Awasthi v. State of Uttar Pradesh and Another, reported in (2013) 2 SCC 435 ; (v) Dhruba Das and Another v. Zakir Hussain Khan and Other, reported in (2014) 6 GLR 563; (vi) Geeta Mehrotra and Another v. State of Uttar Pradesh and Another, reported in (2012) 10 SCC 741 ; and (vii) Shaksho Belthissor v. State of Kerala and Another, reported in (2009) 14 SCC 466 . 16. Refuting the argument, advanced by the learned Counsel for the petitioners, Mr. G.N. Sahewalla, learned Sr. Counsel, appearing for the private respondent, has submitted that the respondent, whose marriage was performed at Ghaziabad i.e. the place, where her matrimonial house is situated, was subjected to continuous torture, in connection with demand of dowry, by her husband and other accused persons i.e. members of her in laws family and that due to such continued torture, she had no other alternative but to leave her matrimonial home and take shelter in her parents' house, at Guwahati. Therefore, it is submitted that the respondent was compelled to take shelter in her parents' house at Guwahati, as a consequence of the torture committed on her in her marital home at Ghaziabad. Therefore, it is submitted that the respondent was compelled to take shelter in her parents' house at Guwahati, as a consequence of the torture committed on her in her marital home at Ghaziabad. It is also submitted that the complainant has specifically alleged, in her complaint as well as statement recorded under Section 200 Cr.P.C. that her husband, who was one of the accused persons, had visited her at her parents' house at Guwahati and demanded an amount of Rs. 10 Lakhs as dowry. Therefore, it is submitted that as the private respondent has been living at Guwahati consequence to the torture, committed on her at Ghaziabad, as she had no other option, but to file the said complaints at Guwahati. It is further submitted that, in view of demand of Rs.10 Lakhs coupled with threat, made during the visit of her husband to her parents' house, a part of the occurrence took place at Guwahati also. It has also been contended that the complainant's husband, during her stay at Guwahati, used to telephonically threaten her demanding money. 17. In view of the above, the learned Sr. Counsel, for the respondent, has submitted that the learned Magistrate, at Guwahati, has the jurisdiction to entertain the said complaints and as such, the learned Magistrate committed no error or irregularity by taking cognizance of the offence under Section 498(A) IPC in the said complaint case i.e. CR Case No. 475/2014. 18. Regarding jurisdiction to try the CR Case No. 463/2014, under Section 406 IPC, the learned Sr. Counsel has submitted that, as the wife complainant was compelled to take shelter in her parents' house, as a consequence of the torture committed on her, the husband respondent was required to return her stridhan properties as mentioned in the list enclosed to the complaint. In the complaint, it has been specifically mentioned that the stridhan properties, as indicated in the enclosed list, were given to her, at the time of her marriage and that despite demand, made by the complainant seeking return of the said properties, the accused persons refused to return the same and that they had misappropriated some of the valuable properties. In view of the said specific allegations, the learned Sr. In view of the said specific allegations, the learned Sr. Counsel has submitted that the accused persons, at no point of time, either returned the said properties at Guwahati, or offered to return the same and as such the Court at Guwahati has the jurisdiction to entertain the complain. Therefore, it is submitted that, in view of the said compelling circumstances, the complainant, who has been forced to take shelter in her parents' house at Guwahati, had no other option but to initiate a criminal proceeding at Guwahati for recovery of her stridhan properties. In the light of the above facts and circumstances, the learned Sr. Counsel has submitted that the learned Magistrate committed no error or illegality by entertaining the said complaint case. 19. With regard to the filing of two complaint cases i.e. CR Case No. 475/2014 under Section 498(A)/406 IPC and CR Case No. 463/2014 under Section 406 IPC read with Section 93 of the IPC and taking of cognizance in CR Case No. 463/2014, under Section 406 IPC against the husband, subsequent to the taking of cognizance under Section 498(A) in CR Case No. 475/2014, the learned Sr. Counsel has submitted that, though, in the title page of CR Case No. 475/2014 the Section 406 IPC was also added along with Section 498(A) IPC, no specific relief was sought for recovery of the said stridhan properties, except bringing the allegation of committing the offence under Section 498(A) IPC. But in the Complaint Case No. 463/2014, which was filed on the same day, along with the Complaint Case No. 475/2014, the complainant specifically stated that stridhan properties, as mentioned in the list, were given to her at the time of her marriage and that despite demand being made for return of the said stridhan properties, the accused persons had refused to return the same to the complainant and that she came to know that most of her valuable articles were misappropriated by the accused persons. It is also submitted that, apprehending misappropriation of the remaining articles, the complainant, by filing the said complaint, under Section 406 IPC, prayed for taking cognizance of the offence and issue of search warrant under Section 93 of the Cr.P.C. for recovery of the stridhan properties. 20. The learned Sr. It is also submitted that, apprehending misappropriation of the remaining articles, the complainant, by filing the said complaint, under Section 406 IPC, prayed for taking cognizance of the offence and issue of search warrant under Section 93 of the Cr.P.C. for recovery of the stridhan properties. 20. The learned Sr. Counsel has submitted that, as both the cases were filed on the same date i.e. on 18.02.2014, before the learned Chief Judicial Magistrate, Kamrup, Guwahati, there was no suppression of fact on the part of the petitioner and that the cognizance in respect of CR Case No. 463/2014, under Section 406 IPC, against the husband petitioner, was taken on a subsequent date i.e. on 04.04.2014, after making enquiry under Section 202 Cr.P.C. 21. Refuting the petitioners contention that the learned Magistrate, by his order, dated 22.08.2014, passed in CR No. 475/2014, rejected the prayer for taking cognizance under Section 406 IPC, the learned Sr. Counsel for the respondent, has submitted that in C.R. Case No. 475/2014, no prayer was made for issuing any search warrant or recovery of the stridhan properties and that the learned Magistrate, while taking cognizance under Section 498(A)/34 IPC did not pass any order with regard to the offence under Section 406 IPC. Therefore, it is submitted that it can't be concluded that the learned Judicial Magistrate rejected the prayer and refused to take cognizance under Section 406 IPC and that the learned Magistrate committed no error by taking cognizance of offence, under Section 406 IPC, on a subsequent date, after complying with the requirement provided by Section 202 Cr.P.C., in Complaint Case No. 463/2014, which was filed on the same date. The learned Sr. Counsel has also submitted that taking of cognizance under Section 406 IPC, in a different proceeding, has not caused any prejudice to the accused petitioner and that there can be direction for taking up both the complaint cases together, for trial. 22. With regard to the non compliance of Section 202 Cr.P.C., the learned Sr. Counsel for the respondent has submitted that the learned Magistrate, while taking cognizance in CR Case No. 463/2014, has duly complied with the statutory provision and, therefore, cognizance taken in the said case is not hit by Section 202 Cr.P.C. However, the learned Sr. 22. With regard to the non compliance of Section 202 Cr.P.C., the learned Sr. Counsel for the respondent has submitted that the learned Magistrate, while taking cognizance in CR Case No. 463/2014, has duly complied with the statutory provision and, therefore, cognizance taken in the said case is not hit by Section 202 Cr.P.C. However, the learned Sr. Counsel has fairly conceded that the learned Magistrate ought to have caused an enquiry under Section 202 IPC in CR Case No. 475/2014 also. The learned Sr. Counsel, for the respondent, has submitted that failure to comply with the provision of Section 202 IPC can't be a ground for quashing the entire proceeding and that the matter may be remitted to the trial Court for passing fresh order after complying with the provision of Section 202 Cr.P.C. 23. In support of his submission, the learned Sr. Counsel for the respondent, has relied on the following decisions: (i) National Bank of Oman v. Barakara Abdul Aziz and Another, reported in (2013)2 SCC 488 ; (ii) Sanjay Jalan v. Sunita Jalan, reported in (2006) 2 GLR 272; (iii) Asith Bhattacharjee v. Hanuman Prasad Ojha and Others, reported in (2007) 5 SCC 786 ; (iv) Kushal Kumar Gupta and Another v. Mala Gupta, reported in (2011) 12 SCC 434 ; (v) Ghanshyam v. State of Rajasthan, reported in (2014) 2 SCC 683 ; (vi) Bhaskar Lal Sharma and Another v. Monca and others, reported in (2014)3 SCC 383 ; (vii) National Bank of Oman v. Barakara Abdul Aziz & Another, reported in SLP (Crl.) No.(s) 9098 of 2012; (viii) Sudhir Chandra Saha & Others v. Rumpa Saha and another, reported in 2014 (2) GLT 651; and (ix) Mohammad Hussain and Others v. Mustt. Rugena Begum, reported in (2010) 5 GLR 348. 24. Having heard the learned Counsel, appearing for both the parties and considering the facts and circumstances of the above cited cases, I feel it necessary to examine the question of jurisdiction of the learned Judicial Magistrate 1st Class, Guwahati to entertain the present complaint cases. Undisputedly, the marriage between the respondent and her husband aforesaid took place at Ghaziabad and after their marriage, they used to live there, which is a place outside the territorial jurisdiction of the learned Judicial Magistrate, Kamrup. 25. Undisputedly, the marriage between the respondent and her husband aforesaid took place at Ghaziabad and after their marriage, they used to live there, which is a place outside the territorial jurisdiction of the learned Judicial Magistrate, Kamrup. 25. The law regarding jurisdiction of criminal Courts in inquiries and trials has been provided in Section 177 and 178 of Chapter 13 of the Cr.P.C. Sections 177 and 178 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. 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." 26. As provided by Section 177 Cr.P.C. ordinarily, every offence is to be tried or enquired into by a Court within whose local jurisdiction it is committed. Section 178 Cr.P.C. provides trial of an offence by any Court in whose jurisdiction a part of the offence is committed. Section 184 Cr.P.C. provides the provision for trial of offence together by virtue of the provision of Sections 219/220/221 Cr.P.C. 27. In the case of Y. Abraham Ajith (Supra), the Supreme Court, referring to the provisions of Sections 177 and 178 Cr.P.C., held that ordinarily, every offence is to be inquired into and tried by a Court within whose local jurisdiction the offence is committed and that a proceeding can be quashed for want of jurisdiction. In the said case, the complainant (wife) herself left the house of her husband on account of alleged dowry demands by husband and his relatives. After she had left the house of her husband, there was no whisper of allegations about any demand or committing offence. In view of the above, it was held that the logic of Section 178(C) Cr.P.C. relating to continuing offence can't be applied. 28. After she had left the house of her husband, there was no whisper of allegations about any demand or committing offence. In view of the above, it was held that the logic of Section 178(C) Cr.P.C. relating to continuing offence can't be applied. 28. In the case of Bhura Ram (Supra), the Supreme Court, relying on the case of Y. Abraham Ajith (Supra), held that the offence is to be tried in a Court, within whose jurisdiction it is committed. 29. In the case of Geeta Mehrotra (Supra), the Supreme Court observed that the question of territorial jurisdiction is to be decided by the trial Court itself and this issue can't be decided in proceeding for quashment. 30. In the case of Sanjay Jalan, a learned Single Judge of this Court observed: "34. If a wife is compelled to leave her matrimonial home by her husband or his family members and is forced under the circumstances to take shelter with her parents at any other place, to insist, in absence of any stipulation to the contrary, that she would have to launch the prosecution for the offence of criminal breach of trust only in a Court at a place where the matrimonial home is located, as the property in question is retained there, would amount to denying her the legal remedy provided under the law. A realistic and pragmatic approach, therefore, has to be adopted in the touchstone of the attending facts and circumstances. The intention and arrangement between the parties would have to be culled out from the materials on record and no particular stipulation or arrangement ought to be insisted upon to invoke the said provision of the Code." 31. In the case of Sanjay Jalan (Supra), marriage between the parties was solemnized on 28.01.2000 at Gauhati and a son, out of the wedlock, was born, on 12.09.2001. The wife alleged cruelty, both physical and mental by the husband and members of his family in connection with demand of dowry, for non-fulfilment of which she had to face ill treatment. She has also alleged an attempt on her life by administering poison pointing out the accusing finger towards the husband. According to her, on 26.04.2002, she was driven out of her matrimonial home de hors her belongings as well as the stridhan, which were illegally retained by the husband and his family members. She has also alleged an attempt on her life by administering poison pointing out the accusing finger towards the husband. According to her, on 26.04.2002, she was driven out of her matrimonial home de hors her belongings as well as the stridhan, which were illegally retained by the husband and his family members. The wife, in the circumstances, was staying with her parents at Dikom in the District of Dibrugarh. These allegations, however, were denied by the husband and his father Shri B. Jalan. But it has been admitted that the parties were living separately on and from 26.04.2002 and that the wife was residing with her parents at Dikom." In the above backdrop, the Court observed: "The complaint as well as the deposition of the complainant and her witness disclose that the wife had requested the accused persons to return her belongings but they had refused to do so. It is not the stand of the husband and his family members that the properties claimed by the wife were not given to her as stridhan in marriage. The allegations made in the complaint and in the deposition if correct, the husband and his family members are prima facie under a legal obligation in the prevailing circumstances to return her belongings and stridhan to her at Dikom. There is no material on record to suggest that any step has been taken on their behalf offering the wife to collect the property from her matrimonial home at Guwahati. In view of 181(4) Cr.P.C., read with contents of the complaint and the deposition of the wife and her witnesses, I am inclined to hold that the Court at Dibrugarh has the jurisdiction to try the offence as the husband and her family members are under a legal obligation to return the properties at Dikom or account for same at that place. The prayer for transfer, therefore, cannot be entertained. 32. In the case of Kushal Kumar Gupta (Supra), a complaint, under Sections 498(A) and 406 IPC, was filed at Patilia Court. By an application, under Section 482 Cr.P.C., the question raised was whether the learned Magistrate at Patiala had the jurisdiction to entertain the complaint and issue process. The prayer for transfer, therefore, cannot be entertained. 32. In the case of Kushal Kumar Gupta (Supra), a complaint, under Sections 498(A) and 406 IPC, was filed at Patilia Court. By an application, under Section 482 Cr.P.C., the question raised was whether the learned Magistrate at Patiala had the jurisdiction to entertain the complaint and issue process. It was argued, on behalf of the petitioner, that as no part of cause of action had arisen and that the complainant had received back all her articles and personal effects nothing remained to handover to the complainant at Patiala. On behalf of the complainant, it was contended that dowry articles were to be returned at Patiala Court, thus attracting the provision of Section 181(4) Cr.P.C. It was found that the complaint indicated that a part of the cause of action took place at Patiala, where dowry articles were to be returned. In view of the above and considering the existence of prima facie case, the Supreme Court refused to interfere with the judgment of the High Court, which dismissed the petition under Section 482 Cr.P.C. 33. In the case of Ghan Shyam (Supra), the complainant alleged that he gave three gold chains to the accused for making new designs by meeting the old chains and that neither the old chains nor new gold chains were returned to him. Accused denied the allegations of taking the gold chains. The Supreme Court dismissing the appeal filed by the accused observed that in view of making out a prima facie case of criminal breach of trust the burden was on the accused to rebut the allegation, brought against him. The Supreme Court in the said case also observed: "9. It has been held in Onkar Nath Mishra v. State (NCT of Delhi) that in the commission of the offence of criminal breach of trust, two distinct parts are involved. The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created." 34. The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created." 34. In the case of Bhaskar Pal Sharma (Supra), the Supreme Court observed that in a case under Section 498(A) and 406 IPC, the facts stated against the accused is to make out on the face of the averments and in the event of existence of prima facie case, on the basis of the averments made in complaint or the FIR, no interference can be made in exercise of power under Section 482 Cr.P.C. 35. In the case of Sudhir Chandra Saha (Supra), the complainant lodge a complaint under Section 498(A)/406 IPC at Tinsukia against her husband and other member of his family alleging cruelty and for recovery of her stridhan property. An application was filed under Section 482 Cr.P.C. alleging that the Court at Tinsukia had no jurisdiction to entertain the complaint. The marriage was solemnized on 28.06.2011 and though the complainant stayed in the place of her in-laws till 07.12.2011, the husband used to sleep separately from the complainant and that she learnt that the husband was having an illicit relationship with a lady. He submits that the husband, at the instigation of accused persons, brought the opposite party No. 1 to hr parental home and left her here and went back. While she was at Tinsukia, husband also used to rebuke them over phone and threatened them with dire consequence. Relying on the decision, held in the case of Seyata Mukherjee v. Prashant Kumar Mukherjee, reported in (1997) 5 SCC 30 , a learned Single Judge held that the complaint wife being left in her parental house at Tinsukia, the Court at Tinsukia had the jurisdiction to try the case, inasmuch as the alleged offence, under Section 498(A) IPC, was a continuing offence. 36. In the case of Mohammad Hussain (Supra), the wife complainant was compelled to leave her matrimonial house at Golaghat for bringing money from her parents at Koliabor. She filed the complaint case under Section 498(A)/323/34 IPC at Koliabor. The accused person contended that as no offence was committed within the jurisdiction of the Court at Kaliabor, the learned Magistrate, Koliabor had no jurisdiction to entertain the complaint. She filed the complaint case under Section 498(A)/323/34 IPC at Koliabor. The accused person contended that as no offence was committed within the jurisdiction of the Court at Kaliabor, the learned Magistrate, Koliabor had no jurisdiction to entertain the complaint. A learned Single Judge of this Court observed that as the money was required to be brought from Koliabor, a part of the offence was committed at Koliabor also and as such the Court at Koliabor had the jurisdiction. The learned Judge observed: "10. Situated, thus, it becomes clear that when the demand for money having been raised at Golaghat, the money was allegedly brought by the complainant from her parental house at Kaliabor, the Judicial Magistrate, at Kaliabor, had, undoubtedly, jurisdiction to take cognizance of the offence aforementioned." 37. Carefully perusing the allegations, made in the Complaint Case No. 475/2014, under Sections 498(A)/34 IPC and Complaint Case No. 463/2014, under Section 406 IPC, I find that the complainant, in her complaint under Section 498(A) IPC, specifically alleged that she was subjected to torture in connection with demand of dowry, by her husband and other members of his family i.e. the accused persons, at Ghaziabad i.e. in their marital home. She further alleged that, due to the torture, meted out to her, she was compelled to leave her marital home and take shelter in her parent's house. Therefore, her living at Guwahati is found to be a consequence to the torture committed on her at Ghaziabad. In her said complaint as well as in the statement, made under Section 200 Cr.P.C., she clearly stated that, on 18.03.2013, her said husband visited her, in her parent's house at Guwahati, for the purpose of taking their daughter (baby) and threatened her to pay an amount of Rs. 10 Lakhs as a condition for her re-admission in the marital home at Ghaziabad and for meeting her son. She also stated that her said husband continued to, telephonically, make demand of dowry during her stay at Guwahati. 38. From the above, it appears that there is allegation of committing part of the offence under Section 498(A) IPC at Guwahati also. Therefore, the alleged offence appears to be a continued one. She also stated that her said husband continued to, telephonically, make demand of dowry during her stay at Guwahati. 38. From the above, it appears that there is allegation of committing part of the offence under Section 498(A) IPC at Guwahati also. Therefore, the alleged offence appears to be a continued one. In view of the attending facts and circumstances and the statutory provision, provided by Section 178 (c) and the principles laid down in the above cited cases, a Judicial Magistrate at Guwahati has the jurisdiction to entertain the said complaint. 39. In Complaint Case No. 463/2014, it has been specifically alleged that despite request made for return of the stridhan properties of the complainant, who was compelled to leave the marital home and take shelter in her parents house at Guwahati, the accused persons refused to return the stridhan properties. There is nothing, on-record, to find that the petitioners had ever offered to return her stridhan properties. The complainant specifically stated that she was given various articles as mentioned in the list enclosed to the said complaint. Therefore, there is sufficient materials indicating that stridhan properties were given to her at the time of her marriage and the allegation of refusal of the petitioner, who was the custodian of the said properties, to return the same, discloses a prima facie case under Section 406 IPC. 40. As the petitioner, as alleged, was compelled to leave her marital home, it was the duty of her husband i.e. the petitioner in Criminal Petition No. 443/2014, to return her stridhan properties at her place of stay at Guwahati or offer to return the same. Therefore, keeping in mind the decisions, held in the case of Sanjay Jalan (Supra), Asith Bhattacharjee (Supra), Kushal Kr. Gupta (Supra), Ghanashyam (supra) and Sunder Ch. Saha (Supra), I find no difficulty in holding that, in view of the demand made by the complaint, the petitioner ought to have returned back her stridhan properties or offered to return the same at her house at Guwahati. As alleged, she, being compelled to take shelter in her parents house at Guwahati, after leaving her marital home at Ghaziabad, can't be expected to go to Ghaziabad again and file a case there under Section 406 IPC. This would only to put her to much inconvenience and hardship. 41. As alleged, she, being compelled to take shelter in her parents house at Guwahati, after leaving her marital home at Ghaziabad, can't be expected to go to Ghaziabad again and file a case there under Section 406 IPC. This would only to put her to much inconvenience and hardship. 41. The term 'ordinarily' appearing in the Section 177 Cr.P.C. sufficiently indicates that in exceptional cases, an offence can be tried outside the local jurisdiction also and the present case is found to be an appropriate one. That apart, in her said complaint, the complainant has specifically alleged that the petitioner, during his visit to Guwahati, had threatened her demanding an amount of Rs. 10 Lakhs as dowry and that thereafter also he used to threaten her telephonically. Therefore, the allegations, made aforesaid, prima facie reveal that the offences were committed both at Ghaziabad and Guwahati and therefore, in my considered opinion, the statutory provision prescribed by Section 178(C) Cr.P.C. is attracted. In view of the above, I find no difficulty in holding that the Judicial Magistrate at Guwahati has the jurisdiction to entertain the said complaint cases. 42. With regard to the taking of cognizance under Section 406 IPC in CR Case No. 463/2014, after taking cognizance in CR Case No. 475/2014 under Section 498(A) IPC, I find that both the complaint cases were filed on the same date i.e. on 18.02.2014. In Complaint Case No. 475/2014, though Section 406 IPC was also added with Section 498(A) IPC in the title page of the body, neither any particulars of streedhan property was given nor any relief for recovery of the said properties was sought. But, in the Complaint Case No. 463/2014, which was also filed on the same date, under Section 406 IPC read with Section 93, specific allegation, regarding refusal to return and misappropriation of the streedhan properties, as indicated in the list of articles, was made. In the said case, the complainant, giving detailed particulars of the properties, prayed for recovery of her streedhan properties by issuing search warrant, under Section 93 Cr.P.C. 43. The learned Magistrate, after making an enquiry under Section 202 IPC took cognizance of offence under Section 406 IPC against the husband petitioner by order, dated 04.04.2014 and also issued search warrant for recovery of the streedhan articles (as mentioned in the list) from the house of the accused person. The learned Magistrate, after making an enquiry under Section 202 IPC took cognizance of offence under Section 406 IPC against the husband petitioner by order, dated 04.04.2014 and also issued search warrant for recovery of the streedhan articles (as mentioned in the list) from the house of the accused person. There is nothing to find that the learned Magistrate, while taking cognizance under Section 498(A) IPC in CR Case No. 475/2014, had rejected the prayer for taking cognizance under Section 406 IPC. By order, dated 28.02.2014, the learned Magistrate, while taking cognizance of offence under Section 498(A) IPC against all the petitioners in CR Case No. 475/2014, did not record anything regarding Section 406 IPC. Hence, it can't be held that cognizance was taken in CR Case No. 463/2014, after the same was rejected in CR Case No. 475/2014. By order, dated 04.04.2014, the learned Magistrate took cognizance of offence under Section 406 IPC against the husband petitioner in CR Case No. 463/2014. The learned Magistrate nowhere stated that there was no material for taking cognizance. Therefore, considering entire aspect of the matter, I am of the opinion that no gross illegality or jurisdictional error has been committed by taking cognizance under Section 406 IPC in CR Case No. 463/2014. 44. With regard to the delay in filing the complaint cases aforesaid, the learned Counsel for the respondent has submitted that considering the attending facts and circumstances of the case, the delay in filing the complaints aforesaid can't be ground for quashing the proceeding at this stage, inasmuch as, the allegations made in the complaints reveal a prima facie case under Sections 498(A)/34 IPC and 406 IPC respectively. 45. The complainant, in her complaint, stated that, on 18.03.2013, her husband visited her at her parents house and threatened her demanding dowry. She also stated that subsequently also, her husband used to threaten her telephonically and that having no other alternative she had to file the complaint cases aforesaid. Admittedly, the cases were filed on 18.02.2014. The offence under Section 498(A) IPC is punishable by imprisonment of three years and the offence under Section 406 IPC is punishable for imprisonment of three years or fine or with both. As provided by Section 468 IPC, cognizance, in respect of an offence where punishment is upto three years, is to be taken within a period of three years. The offence under Section 498(A) IPC is punishable by imprisonment of three years and the offence under Section 406 IPC is punishable for imprisonment of three years or fine or with both. As provided by Section 468 IPC, cognizance, in respect of an offence where punishment is upto three years, is to be taken within a period of three years. In view of the above, it appears that the complaints aforesaid are not hit by Section 468 Cr.P.C. That apart, in matrimonial dispute, parties, more particularly, the female side, has to consider many aspects including consequence of bringing criminal proceedings against her husband and members of his family. Therefore, complaints, aforesaid, can't be thrown at this stage, only on the ground of delay. Therefore, the delay, if any, in filing the complaints can't be sufficient ground for quashing the proceeding aforesaid. 46. With regard to the non compliance of Section 202 Cr.P.C. in respect of CR Case No. 475/2014, admittedly, the accused persons i.e. the petitioners are residents of Ghaziabad, which is a place outside the territorial jurisdiction of the learned Judicial Magistrate, Guwahati. 47. Section 202 Cr.P.C. is a mandatory provision requiring the Magistrate to postpone the issuance of process against the accused persons and either enquire into the case himself and direct an investigation to be made by a Police Officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient grounds for proceeding in a case, when accused persons are residing at a place beyond the area for which the learned Magistrate exercises his jurisdiction. However, no such direction for investigation is to be made in a case exclusively triable by the Court of Sessions. 48. In the case of Udai Shankar Awasti (Supra), the Supreme Court, referring to the provisions of Section 202 Cr.P.C. observed that, in a case where the accused persons is a resident of a place outside the territorial jurisdiction of the Magistrate, it is mandatory to postpone the issue of process and comply within the procedure prescribed by Section 202 Cr.P.C. 49. In the case of Dhruba Das (Supra), it has been held that the Magistrate is to direct a limited enquiry under Section 202 Cr.P.C. to verify the correctness of the allegation made in the complaint. 50. In the case of Dhruba Das (Supra), it has been held that the Magistrate is to direct a limited enquiry under Section 202 Cr.P.C. to verify the correctness of the allegation made in the complaint. 50. In the case of National Bank of Oman (Supra), the learned Chief Judicial Magistrate, Ahmed Nagar, failed to comply with the provision of Section 202 Cr.P.C. The Supreme Court observed that since the accused was resident of a place outside the jurisdiction of the learned Chief Judicial Magistrate, Ahmed Nagar, it was obligatory upon the Magistrate to comply with the requirement of Section 202 Cr.P.C., postpone the issuance of process and either make an enquiry himself or direct an investigation to be made by Police or by such other person for finding out whether or not there was sufficient ground for proceeding against the accused. As the proceeding in the complaint case was quashed by the High Court, the Supreme Court held that the High Court, instead of quashing the complaint, should have directed the Magistrate to pass fresh orders. Accordingly, the Supreme Court remitted the matter to the learned Chief Judicial Magistrate, directing him to pass fresh orders after complying with the procedure prescribed by Section 202 Cr.P.C. 51. From the record, it appears that, in the case at hand, the learned Magistrate without complying with the said statutory provision, prescribed by Section 202 Cr.P.C. straightway issued process in CR Case No. 475/2014 under Sections 498(A)/34 IPC, after examining the complainant under Section 200 Cr.P.C. Hence, it appears that the learned Magistrate erred in law by failing to comply with the said statutory requirement. Therefore, the order, dated 28.02.2014, whereby cognizance of offence under Section 498(A) IPC has been taken, is not maintainable, in the eye of law. 52. In view of the decision, held in the case of National Bank of Oman (Supra), instead of quashing the complaint aforesaid, I find it appropriate to direct the learned Magistrate to pass fresh orders after complying with the provision of Section 202 Cr.P.C. Accordingly, the impugned order, dated 28.02.2014, passed in the said complaint, is set aside and the complaint is remitted to the learned Judicial Magistrate 1st Class for passing necessary fresh orders as per law, uninfluenced by the observation made by this Court. 53. 53. In view of remitting the said complaint for fresh disposal, I am not inclined to pass any order regarding existence of prima facie case in CR Case No. 475/2014. The matter is left for decision by the learned Magistrate. 54. I feel it appropriate to examine as to whether the proceeding in CR Case No. 463/2014 under Section 406 IPC is liable to be quashed, in exercise of jurisdiction under Section 482 Cr.P.C. 55. In the case of Kishan Singh (Supra), the Supreme Court observed that unexplained inordinate delay in lodging FIR is always fatal and that the proceeding can be quashed under Section 482 Cr.P.C. if the same is found to be launched with mala fide intention for wreaking vengeance. Therefore, in the absence of materials indicating mala fide and vengeance, delay is not always fatal. 56. In the case of Shakson Bethisson, the Supreme Court defining the term "cruelty" as it appears in Section 498-A IPC observed that the power under Section 482 Cr.P.C. can be exercised to prevent abuse of the process of Court only when the complaint or the FIR, or the charge-sheet, as the case may be, does not disclose any offence or when the complaint is found to be frivolous, vexations or oppressible. 57. The Supreme Court, in the case of Bhajanlal (Supra), has laid down the following guidelines with regard to the exercise of power under Section 482 Cr.P.C. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code, except under an order of a Magistrate within at he purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 58. In the case of State of Orissa and another (Supra), the Supreme Court, held that while exercising the jurisdiction under section 482 Cr.P.C. the role of the trial court should not be played and that the High Court should not try to appreciate the evidence to conclude whether the materials are sufficient or not for convicting the accused. The Supreme Court referred to the following categories of cases summarised in the case of R.P. Kapur v. State of Punjab ( AIR 1960 SC 866 ) for exercising the powers to quash the proceedings. "9. The Supreme Court referred to the following categories of cases summarised in the case of R.P. Kapur v. State of Punjab ( AIR 1960 SC 866 ) for exercising the powers to quash the proceedings. "9. In R.P. Kapur v. State of Punjab this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings: (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; (ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirely do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. (SRC p. 393)". 59. In the case of N. Sundaran (Supra), the Supreme Court observed that High Court will refrain from giving a prima facie direction unless there are compelling circumstances to do so. The Supreme Court also observed that if the allegations made in the complaint do not make out an offence then only quashing of the proceeding under section 482 Cr.P.C. would be justified. 60. In the case of Sanjay Singh Ram Rao Chavan (Supra), the Supreme Court held that the process of criminal court should not be permitted to be used as a weapon of harassment. It has also been held that unmerited and undeserved prosecution is infringement of the guarantee under Article 21 of the Constitution of India. 61. In the case of Rajiv Thapar and Others v. Madan Lal Kapoor, reported in (2013) 3 SCC 330 , the Supreme Court, while laying down the principle for exercise of power under Section 482 Cr.P.C., observed that High Court is to exercise power under Section 482 Cr.P.C. to quash a criminal proceeding for preventing abuse of process of the Court and secure the ends of justice. The Supreme Court has delineated the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 Cr.P.C.: "30. 1. Step one: Whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality. "30. 2. 1. Step one: Whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality. "30. 2. Step two: Whether the material relied upon by the accused would rule out the assertions contained in the charges leveled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. "30. 3. Step three: Whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant. "30. 4. Step four: Whether the proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice." 62. In the light of the above principles, regarding exercise of power under Section 482 Cr.P.C. for quashment of a criminal proceeding, existence of prima facie case is sufficient to continue with a criminal proceeding. Whether the allegations, made in the complaint or the FIR, as the case may be, are true or false is a question to be decided on the basis of the evidence to be adduced at the time of trial. This Court, in exercise of power under Section 482 Cr.P.C. is not required to make a roving enquiry to find out the truth in the allegation. This is the job of the trial Court. Absence of any melafide intention with ulterior motive for wrecking vengeance on the accused, due to private or personal grudge and presence of a prima facie case on the face of the allegations made in the complaint or the FIR, as the case may be, does not justify interference with the criminal proceedings, in exercise of jurisdiction under Section 482 Cr.P.C. 63. Carefully perusing the allegation, made in the Complaint Case No. 463/2014, it is found that the complainant clearly stated that the articles, mentioned in the enclosed list, which were given to her at the time of her marriage, were her stridhan properties and that the accused persons, on being demanded by her, refused to return the same. She also made allegation that some of her valuable articles were misappropriated by the accused persons. She also made allegation that some of her valuable articles were misappropriated by the accused persons. Unless, the contrary is proved that her husband is the custodian of the said properties, which have been kept in her matrimonial home. Therefore, considering the allegations, made in the complaint as well as in her statement, recorded under Section 200 Cr.P.C. and the statement of the witnesses under Section 202 Cr.P.C., it is found that a prima facie case has been made out for proceeding under Section 406 IPC. Therefore, considering entire aspect of the matter, I don't find it to be a fit case, warranting interference with the proceeding with the CR Case No. 463/2014 aforesaid in exercise of jurisdiction under Section 482 Cr.P.C. 64. In the light of the above discussion, the Criminal Petition No. 464/2014 and Criminal Petition No. 416/2014, preferred by the petitioners against the order dated 18.02.2014 are partly allowed by setting aside the order dated 18.02.2014 and the matter (C.R. Case No. 475/2014) is remitted to the learned Judicial Magistrate 1st Class for passing fresh order after complying with the provision of Section 202 Cr.P.C. without being influenced by any observation made hereinabove. 65. As discussed above, the Criminal Petition No. 443/2014, preferred in respect of CR Case No. 463/2014 under Section 406 IPC is found to be without merit. Hence, the same is dismissed. 66. No costs.