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2015 DIGILAW 645 (CAL)

Sumit Ghoshal v. State of West Bengal

2015-08-03

SUDIP AHLUWALIA

body2015
JUDGMENT : Sudip Ahluwalia, J. This revisional application has been filed with the prayer for quashing the proceedings in connection with the Bidhannagar P.S. Case No. 273 of 2013 dated 27.11.2013 under Sections 498A/406 of the IPC. 2. The petitioner No. 1 is the son of the petitioner No. 2, and both of them are accused persons in the aforesaid FIR lodged against them by the Opposite Party No. 2, who happens to be the father of Sanjukta, wife of the accused No. 1. 3. It may be mentioned that admittedly both the petitioners are residents of Pune in Maharashtra, and even the victim Sanjukta (daughter of the complainant) is also residing separately in Pune, where she is employed. 4. The petitioners apart from assailing the truth of the allegations made against them in the FIR have also asserted that the proceedings against them are not tenable in Bidhannagar area since no offence according to the FIR was actually committed within that area. This contention has of course being resisted from the side of the Opposite Parties, and Opposite Party No. 2/Complainant has also filed his affidavit-in-opposition against the revisional application, to which certain documents have been annexed. 5. In "Manish Ratan and Ors. v. State of M.P. and Anr. it was held- "Interpretation of the term "ordinarily" will have to be considered having regard to the provisions contained in Section 178 thereof which reads as under: "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 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." Clause (c) of the said provision, thus, has been applied in the instant case. Whether the allegations made in the complaint petition would constitute a continuing offence, thus, is the core question. In a case of this nature, an offence cannot be held to be a continuing one, only because the complainant is forced to leave her matrimonial home. Whether the allegations made in the complaint petition would constitute a continuing offence, thus, is the core question. In a case of this nature, an offence cannot be held to be a continuing one, only because the complainant is forced to leave her matrimonial home. In State of Bihar v. Deokaran Nenshi and Another,[ (1972) 2 SCC 890 ] it was stated: The said decisions are squarely applicable to the facts of the present case. Our attention was drawn to the fact that no criminal case was lodged at Jabalpur. Our attention was further drawn to the fact that the investigation of the case is complete. We, therefore, are of the opinion that, interest of justice would be subserved, while setting aside the order of the High Court, if in exercise of our jurisdiction under-Article 142 of the Constitution of India, we direct transfer of the criminal case pending in the Court of Chief Judicial Magistrate, Datia to the Court of Chief Judicial Magistrate, Jabalpur. We accordingly do so. Although the complainant has filed an application before us for impleading herself as a party, nobody has appeared on her behalf. We, therefore, direct the Chief Judicial Magistrate, Jabalpur to issue notice to her. Keeping in view of the fact that Respondent No. 2 is residing at Datia, we would request the Chief Judicial Magistrate, Jabalpur to accommodate her in the matter of fixing the date (s) of hearing as far as possible. The appeal is allowed with the aforementioned directions." 6. Again in "Y. Abraham Ajith And Others v. Inspector Of Police, Chennai And Another" [ (2004)8 SCC 100 ], the Supreme Court laid down - "The crucial question is whether any part of the cause of action arose within the jurisdiction of the concerned Court. In terms of Section 177 of the Code it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused. While in civil cases, normally the expression "cause of action" is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression "cause of action" is therefore not a stranger to criminal cases. While in civil cases, normally the expression "cause of action" is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression "cause of action" is therefore not a stranger to criminal cases. It is settled law that cause of action consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously 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, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in "cause of action". 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. 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. 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. (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. In Halsbury's Laws of England (Fourth Edition) 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. "Cause of action" has also been taken to mean that 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". When the aforesaid legal principles are applied, to the factual scenario disclosed by the complainant in the complaint petition, the inevitable conclusion is that no part of cause of action arose in Chennai and, therefore, the concerned magistrate had no jurisdiction to deal with the matter. The proceedings are quashed. The complaint be returned to respondent No. 2 who, if she so chooses, may file the same in the appropriate Court to be dealt with in accordance with law. The appeal is accordingly allowed." 7. Similarly in "Bhura Ram and Ors. The proceedings are quashed. The complaint be returned to respondent No. 2 who, if she so chooses, may file the same in the appropriate Court to be dealt with in accordance with law. The appeal is accordingly allowed." 7. Similarly in "Bhura Ram and Ors. v. State of Rajasthan and Anr." it was observed - "The facts stated in the complaint disclose that the complainant left the place where she was residing with her husband and in-laws and came to the city of Sri Ganganagar, State of Rajasthan and that all the alleged acts as per the complaint had taken place in the State of Punjab. The Court at Rajasthan does not have the jurisdiction to deal with the matter. On the basis of the factual scenario disclosed by the complainant in the complaint, the inevitable conclusion is that no part of cause of action arose in Rajasthan and, therefore, the Magistrate concerned has no jurisdiction to deal with the matter. As a consequence thereof, the proceedings before the Additional Chief Judicial Magistrate, Sri Ganganagar are quashed. The complaint be returned to the complainant and if she so wishes she may file the same in the appropriate court to be dealt with in accordance with law." 8. In "Chandralekha & Ors. v. State of Rajasthan & Anr." [(2013) 1 C Cr LR (SC) 745], the complainant/victim whose parental house was in Jodhpur, Rajasthan, had, after marriage shifted to her matrimonial house in Ahmedabad. There she was allegedly subjected to mental and physical cruelty by her husband Rajeev Bhandari, his father Meghraj Bhandari and the appellants 1, 2 and 3. She was therefore constrained to leave her matrimonial house and return to her parents. Her husband Rajeev Bhandari then came to her parental house and after giving some reassurances took her back with him. But in her matrimonial house, the incidents of physical and mental torture by all the previously mentioned persons were resumed again. She, therefore, had to return to her parental house again. But taking into account that it was her husband alone who had come to her parental house to take her back, while the acts of physical and mental cruelty were imputed upon all the accused persons in Ahmedabad, the decision of the Supreme Court was - "4. It is necessary to give a gist of the facts. But taking into account that it was her husband alone who had come to her parental house to take her back, while the acts of physical and mental cruelty were imputed upon all the accused persons in Ahmedabad, the decision of the Supreme Court was - "4. It is necessary to give a gist of the facts. On 1/4/2009, respondent 2 lodged the FIR in question at Thana Mahila, District Jodhpur against Rajeev Bhandari, his father Meghraj Bhandari and appellants 1, 2 and 3 alleging offences under Sections 498A and 406 of the IPC. In the FIR, she stated that she got married to Rajeev Bhandari on 9/7/2002 at Jodhpur; her father gave cash of Rs. 1,25,000/- and gold and silver ornaments, other articles, clothes, household utensils, etc. to her husband's family; she resided at Ahmedabad with her husband after her marriage; her husband behaved well for about two and half months; after that, the behaviour of Rajeev Bhandari, his father and the appellants 1, 2 and 3 changed; they started harassing her because she had brought less dowry; they did not give her sufficient food to eat; in her absence, appellants 1, 2 and 3 used to scatter her clothes and belongings and they demanded cash of Rs. 6 lakhs. It is further stated in the complaint that on 26/1/2003, all of them harassed her and asked her to bring Rs. 6 lakhs and gold and silver items from her father and threatened her that if she does not bring them, she will suffer. According to her, she suffered mental shock because of this behaviour and, hence, she left the matrimonial home in the morning of 27/1/2003. Then, her husband Rajeev Bhandari came searching for her and assured that there will be no demand of dowry. Due to this assurance, she again went to the matrimonial home. However, there was no difference in the behaviour of Rajeev Bhandari and appellants 1, 2 and 3. The dowry demand persisted. She, therefore, phoned her father and told him to come to Ahmedabad. On 14/2/2003, her father came to Ahmedabad and took her to Jodhpur on 15/2/2003. Since then, she has been staying with her parents. According to her, her husband Rajeev Bhandari and appellants 1, 2 and 3 have not contacted her thereafter. The dowry demand persisted. She, therefore, phoned her father and told him to come to Ahmedabad. On 14/2/2003, her father came to Ahmedabad and took her to Jodhpur on 15/2/2003. Since then, she has been staying with her parents. According to her, her husband Rajeev Bhandari and appellants 1, 2 and 3 have not contacted her thereafter. She contacted them and asked them to return her original degree certificate, silver and gold ornaments and other articles. But, they ignored her request. She, therefore, requested the police to take legal action against her husband Rajeev Bhandari, her father-in-law Meghraj Bhandari and appellants 1, 2 and 3. It must be stated here that during the pendency of the proceedings, Meghraj Bhandari died. 9. Hence, impugned judgment and order dated 14/9/2011 passed by the Rajasthan High Court in S.B. Criminal Misc. Petition No. 1935 of 2009 is quashed and set aside insofar as it refuses to quash the FIR in question against appellants 1, 2 and 3. FIR No. 66 of 2009 lodged at Mahila Thana, District Jodhpur, Rajasthan is quashed insofar as it relates to appellants 1, 2 and 3 viz. Smt. Chandralekha, Vandana and Vinita respectively. We make it clear that so far as Rajeev Bhandari s/o. Meghraj Bhandari is concerned, the proceedings shall go on in accordance with law. We have not quashed FIR No. 66 of 2009 insofar as it relates to Rajeev Bhandari. Needless to say that the court seized of the complaint shall deal with Rajeev Bhandari's case independently, without being influenced by anything said by us on the merits of the case and in accordance with law." 9. In such circumstances, it would be worth considering the text of the FIR lodged by the complainant before proceeding to test the applicability of the points urged on behalf of both sides. The entire text happens to be as follows: "Sir, I would like to state that my only daughter Sanjukta was married to one Shri Sumit Ghosal who is a resident of B/3, Shahinsha Co-operative Society, Lane No. 6, North Main Road, Koregaon Park, Pune-01. Since marriage, my daughter was subjected to mental, social and financial torture but she did not disclose it to us because of our old age and tried to accommodate but we have observed our son-in-law's stingy behaviour during our visits to Pune. Since marriage, my daughter was subjected to mental, social and financial torture but she did not disclose it to us because of our old age and tried to accommodate but we have observed our son-in-law's stingy behaviour during our visits to Pune. In 2010, my daughter took a job in Pune and since then my son-in-law started harassing her for money. My son-in-law Sumit did not even spent a single farthing for home expenses since her marriage and forced her to spent all her money for home expenses. After sudden demises of mother-in-law of my daughter, her father-in-law Shri Swapan Kumar Ghosal came to Pune and started living with my daughter and son-in-law. On 16th March, 2012 morning, I received a call from my daughter, she was crying on the phone and told us that the both the accused had been severely torturing her; they physically and mentally assaulted her on 14th and 15th March 2012 and threated her to throw her out of her matrimonial house if she did not leave her job. I immediately rushed to Pune and found my daughter horrified, she looked pale, disturbed and in pain. I came to her matrimonial house and found that no domestic help was there. My daughter had to take care of every domestic chore and also work in office. That night we sat for a discussion, my daughter narrated how she had been tortured and neglected since her marriage and how the accused tried to strangulate her and called her names after as pretty fight on the night of 14th March, 2012. After a prolonged discussion I came back to Kolkata but called her everyday and checked if things were better. But on 15th September, 2012 we received a call from daughter when she told us that things had become unbearable for her and that the Accused had been asking for more money from her. She told us to come immediately. On 19th October, 2012 we reached Pune and found horrible condition of my daughter as she spent sleepless nights for last few days and also in a shock following death threat from accused. On 22nd my daughter left her matrimonial house with us and started living in a rented house and I came back to Kolkata. She took some of her clothes and cupboard keys, the locker keys as the locker consisted of her streedhan jewellery. On 22nd my daughter left her matrimonial house with us and started living in a rented house and I came back to Kolkata. She took some of her clothes and cupboard keys, the locker keys as the locker consisted of her streedhan jewellery. Since then the accused tried in many means to get the keys back and get access to locker. When she refused to do that, they started threatening us of dire consequences and told us that we would not be able to protect my daughter since she was alone there. On 27th November, 2012 the accused threatened my daughter severely over phone and asked her to give all the keys else he would harass her in public. Being threatened for life, she left Pune on 29th November and came to us putting her job at stake. Realising that nothing will change, my daughter filed for divorce in Dec, 2012 at Barasat Fast Track Court No. 4. The matter is sub-judice. But the accused and his father still kept threatening her over phone while she was in Kolkata. However to save her job she had to go back to Pune by the end of December, 2012. On 25th and 26th January, 2013 the Accused and his father constantly called her and the undersigned to give the keys. Being harassed, she decided to give those back to them. They did not even give her the UID Adhar Card saying that the Accused had lost it. On 2nd February, 2013 upon receiving the Court Summon, the Accused and his father calling her and us at Kolkata threatening us to withdraw the case or ready to face dire consequences. Mr. Swapan Ghoshal, father of the Accused constantly threatening me and my wife over phone from different numbers by saying that my daughter is staying alone in Pune and anything can happen to her anytime. Our daughter has informed us that the Accused had been keeping track of her whereabouts and constantly trying to find out if she is living alone or not. The life of my only daughter is in danger and we are spending sleepless nights as the safety and well-being of our daughter is our only concern. I hereby plead remedy and action being taken against the Accused and his father and register a F.I.R. against both the Accused on my complaint. The life of my only daughter is in danger and we are spending sleepless nights as the safety and well-being of our daughter is our only concern. I hereby plead remedy and action being taken against the Accused and his father and register a F.I.R. against both the Accused on my complaint. Below are the details of the Accused and his father........" 10. It will therefore be seen that as far as allegations of physical and mental torture upon the complainant's daughter are concerned, there is no indication that any part of the same ever took place outside of Pune or within the area of Bidhannagar P.S. 11. The only allegation linking the petitioners with Kolkata is of the petitioners calling the victim and also her parents in Kolkata from different numbers, and threatening them in order to pressurise them to withdraw the divorce suit. 12. But even assuming that the complainant's daughter at any time received any threat by telephonic talk within West Bengal, still that would not be sufficient to sustain a case under Section 498A in view of a decision of the Supreme Court in "Amarendu Jyoti v. State of Chattisgarh" in which it was held: "8. We find that the offence of cruelty cannot be said to be a continuing one as contemplated by Sections 178 and 179 of the Code. We do not agree with the High Court that in this case the mental cruelty inflicted upon the Respondent No. 2 "continued unabated" on account of no effort having been made by the Appellant to take her back to her matrimonial home, and the threats given by the Appellants over the telephone. It might be noted incidentally that the High Court does not make reference to any particular piece of evidence regarding the threats said to have been given by the Appellants over the telephone. Thus, going by the complaint, we are of the view that it cannot be held that the Court at Ambikapur has jurisdiction to try the offence since the appropriate Court at Delhi would have jurisdiction to try the said offence. Accordingly, the appeal is allowed." 13. In the given circumstances clearly no offences under Section 498A of the IPC would appear to be made out against the petitioners within the territory of West Bengal, or at any other place out side of Pune. 14. Accordingly, the appeal is allowed." 13. In the given circumstances clearly no offences under Section 498A of the IPC would appear to be made out against the petitioners within the territory of West Bengal, or at any other place out side of Pune. 14. However in his affidavit-in-opposition, the Opposite Party No. 2/Complainant has asserted that the offence under Section 406 of the IPC is triable within West Bengal on account of the fact that - "...... (d) In the instant case the solemnization of marriage, the handing over of gifts and valuable to the petitioners by me and my family and the subsequent amounts of money given by me and my family to the petitioner No. 1, all took place within the jurisdiction of the learned Court adjudicating G.R. Case No. 1033/2013 pending before Additional Chief Judicial Magistrate, Bidhannagar, North 24-Parganas. The relevant documents indicating transfer of money upon the demand of the petitioner No. 1 are annexed hereto and marked with the letter "P-2"....." 15. In this regard it may be mentioned that there is absolutely no whisper in the original FIR that any money was transferred to the petitioner No. 1 by either the complainant himself, or his daughter in pursuance of any demand in this regard. In fact the said Opposite Party has annexed a copy of an E-mail for purportedly sent by his daughter to the petitioner No. 1 on January 28. The year is not mentioned but in the given circumstances clearly the relevant date of the E-mail would be January 28, 2013 in which the complainant's daughter has herself written to the petitioner No. 1- "Gave your father the house keys, bank locker key, policy paper related to bank locker, a blanket and it's cover. Send me my aadhar Card by courier. Whatever the courier costs I'll transfer that amount to your account. Thanks" 16. Even the text of this E-mail does not indicate that the complainant's daughter who is otherwise residing in the same city as the petitioners had at any time demanded return of any of her personal effects allegedly kept in her matrimonial house under the custody of the petitioners. Thanks" 16. Even the text of this E-mail does not indicate that the complainant's daughter who is otherwise residing in the same city as the petitioners had at any time demanded return of any of her personal effects allegedly kept in her matrimonial house under the custody of the petitioners. Furthermore, the fact that according to the FIR itself the complainant's daughter is still in possession of the key of the locker containing her ‘Streedhan’ jewellery as stated in the FIR, might not indicate any appreciable application of the offence under Section 406 IPC at any place. The new facts narrated in the affidavit-in-opposition by the defacto complainant can therefore not be treated as anything beyond afterthoughts in an attempt to cover up the defect relating to territorial jurisdiction for the offences disclosed in the F.I.R. 17. For the aforesaid reasons the FIR against the petitioners under Sections 498A/406 of the IPC registered in Bidhannagar P.S. would clearly appear to be untenable for want of territorial jurisdiction. 18. The revisional application is therefore allowed and proceedings arising out of the Bidhannagar P.S. Case No. 273 of 2013 dated 27.11.2013 under Sections 498A/406 of the IPC accordingly stand quashed.