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2017 DIGILAW 508 (CAL)

Sujoy Lahiri v. Nandini Lahiri

2017-05-19

SHIVAKANT PRASAD

body2017
JUDGMENT : Shivakant Prasad, J. In this application under the scheme of Articles 227 of the Constitution of India the petitioner has prayed for recalling of the order dated 05.01.2016 passed by this Court and to quash the FIR dated 01.03.2009 being Chandannagar Police Station Case No.35 of 2009 under Sections 498A, 406/120B of Indian Penal Code. 2. For quashing the proceeding and FIR aforesaid, the petitioner had filed CRR No.2979 of 2013. It is revealed from the order dated 05.01.2016 that since none had appeared on call the matter was taken up for disposal on the merit of the revisional application and this Court was of the view on perusal of the impugned order of the Additional Chief Judicial Magistrate, Chandannagar that where there is sufficient materials for framing of charge against accused persons, there is no scope for discharging the accused persons from the case and accordingly CRR 2979 of 2013 was dismissed on its merit. 3. The said order has been sought to be recalled by the petitioner by filing present application on the contention that the said case was listed before the Hon'ble Justice Asim Kumar Roy on 27.08.2013 when the petitioner was directed to serve a copy of the application along with annexure upon the Opposite Parties and the matter was adjourned till 6th September, 2013 and the same was complied with thereafter the matter appeared in the list for hearing but the said matter came up for hearing before this Court after 3 years when learned Advocate on record could not keep track of events and overlooked the same. It is contended that due to non-appearance of the parties, this Court was pleased to pass the order dismissing the application on its merit without giving verdict on the core issue in the case relating to jurisdiction as the petitioner had filed application regarding territorial jurisdiction before the Additional Chief Judicial Magistrate, Chandannagar which application was dismissed by the impugned order dated 22.02.2013 on the finding that the court had no inherent power to quash and/or discharge the accused persons on the ground of territorial jurisdiction. So, the petitioner preferred the criminal revision for application of its inherent jurisdiction for quashment of the proceeding. 4. Learned counsel for the petitioner fortified his argument relying on a decision of Chitta Ranjan Roy & Ors. v. The State of West Bengal & Anr. So, the petitioner preferred the criminal revision for application of its inherent jurisdiction for quashment of the proceeding. 4. Learned counsel for the petitioner fortified his argument relying on a decision of Chitta Ranjan Roy & Ors. v. The State of West Bengal & Anr. reported in (2012) 3 C.Cr.LR (Cal) 375 which according to the petitioner there is no scope to try and entertain the FIR by Chandannagar Court instead of Alipore Court, as the cause of action arose in Behala in the District of 24 Parganas (South). It is further pointed out that the dismissal of the revisional application vide order dated 05.01.2016 of this Court will empower the Additional Chief Judicial Magistrate, Chandannagar to try the case without having any jurisdiction which will be a serious abuse of law. 5. In the cited decision, it was held that the alleged incident of torture took place at Buxar where the complainant wife resided with her husband. Hence, jurisdiction to entertain the criminal proceeding by Asansol Court was barred and accordingly the criminal proceeding was quashed. 6. I am not fully in agreement with the observation made in the above cited decision on the factual scenario. The allegation raised in the complaint in the instant case is that since after the marriage the complaint wife/opposite party herein had observed unnatural behaviour of her husband who inflicted torture by hurling abusive language and physical assault on her. On 22.2.2009 at about 8:30 PM at night the petitioner/husband under influence of liquor beat his wife/the opposite party and her mother-in-law also joined with the petitioner whereas the father-in-law of the opposite party somehow escaped her from being severely beaten who took her to her parental home at Chandannagar where she fell ill and was treated in Chandannagar Sadar Hospital on 27.2.2009. So, the offence under Section 498A I.P.C. in my opinion is a continuing offence because she continues to suffer mental cruelty with physical suffering due to assault on her. 7. In this context it would be apt to refer to a landmark judgment of the Hon'ble Apex Court on territorial jurisdiction of court in case of an offence under Section 498A of I.P.C. It has been held that when offence is a continuing one having been committed, any one of such courts has jurisdiction to proceed with the trial. 7. In this context it would be apt to refer to a landmark judgment of the Hon'ble Apex Court on territorial jurisdiction of court in case of an offence under Section 498A of I.P.C. It has been held that when offence is a continuing one having been committed, any one of such courts has jurisdiction to proceed with the trial. Reference may be made to a case of Sunita Kumari Kashyap v. State Of Bihar And Anr. reported in AIR 2011 SC 1674 : 2011 Cri.L.J 2667 wherein the only issue for consideration was whether criminal proceedings initiated by the appellant at Gaya against her husband and his relatives was maintainable or not for lack of jurisdiction. The appellant had got married with the respondent at Gaya. When she was pregnant, she was forcibly taken out of her matrimonial home at Ranchi and brought to her parental home at Gaya. It was for the harassment and torture meted out to her by her in-laws for demand of additional amount of dowry. The appellant wife had lodged an FIR under Sections 498A and 406 read with Section 34 of Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, 1961 at Magadh Medical College Police Station, Gaya. The Chief Judicial Magistrate took cognizance on the charge sheet and transferred the case to the Sub-Divisional Judicial Magistrate, Gaya for trial. An objection was raised stating that the Court at Gaya had no jurisdiction. 8. After considering all the relevant materials including the allegations in the complaint learned Magistrate rejected the said objection. Thereafter the accused persons preferred Criminal Miscellaneous case before the High Court of Judicature at Patna and the High Court found that the proceedings at Gaya are not maintainable for lack of jurisdiction and quashed the entire proceedings with liberty to file the same in appropriate Court. Aggrieved by the order of High Court special leave petition was preferred and the Hon'ble Apex Court while considering the special appeal and by quoting the provisions of sections 177 to 179 of the Code of Criminal Procedure, 1973 dealing with the jurisdiction of the criminal courts in inquiries and trials, was of the clear opinion that normal rule is that the offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. 9. 9. However, when it is uncertain in which of several local areas an offence was committed or where an offence is committed partly in one local area and partly in another or where an offence is a continuing one, and continues to be committed in more than one local area and takes place in different local areas as per Section 178, the Court having jurisdiction over any of such local areas is competent to inquire into and try the offence. Section 179 makes it clear that if anything happened as a consequence of the offence, the same may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued. 10. On the basis of a written complaint Chandannagar specific police case was started against the petitioner which reflects a continuing offence of maltreatment meted out to the opposite party in the hands of the petitioner. Therefore, in consideration of the provision of section 178 (c) of the Code of Criminal Procedure, 1973 and relying on the principle laid down in the landmark judgment of the Hon'ble Supreme Court cited above, this Court does not find any merit in the application. 11. I once again record that the order passed by the Additional Chief Judicial Magistrate, Chandannagar is absolutely correct on the core issue of jurisdiction of the Court in the offence alleged under Section 498A I.P.C. I hold that the offence under Section 498A I.P.C. is no doubt a continuing offence and the Court of the Additional Chief Judicial Magistrate, Chandannagar has every jurisdiction to entertain the trial of the petitioner. 12. Ergo, CRAN No.2405 of 2016 is hereby dismissed with an exemplary cost of Rs. 5,000/- (five thousand) to be deposited with the Secretary, High Court Legal Service committee for use of the cost by the destitute children. 13. A copy of this order be sent to the Additional Chief Judicial Magistrate, Chandannagar forthwith with direction to hold the trial and to dispose of the case preferably within 6 months from the date of the communication of the order.