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2018 DIGILAW 497 (JK)

Salmanah Tabasum v. Sajjid Ahmed

2018-07-11

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. The petitioner is aggrieved of the impugned order dated 28th April, 2017, passed by the Court of Judicial Magistrate, 1st Class (Munsiff), Udhampur in sheer abuse of process of Court and law, in a Challan filed in FIR No. 06/2016 u/s 498-A/342/323/109 RPC titled “State Vs. Sajjid Ahmed and ors.”, whereby Investigating Officer through prosecution has been directed to present the said Challan before the learned CJM, Ramban. 2. It is pleaded in the instant petition that the Trial Court without jurisdiction while invoking the power u/s 177 and 178 Cr. P.C has not only returned the Challan to the Investigating Officer of the case, but also further directed for its presentation to CJM, Ramban. It is further pleaded that the order impugned was passed at the back and without the knowledge of the petitioner/complainant and it is only when notice has been issued by the CJM, Ramban to the petitioner, the petitioner got the knowledge of the impugned order, which is manifestly passed in sheer abuse of process of Court and law. That order has been passed in violation of procedure prescribed under law because case was registered at Women Police Station, Udhampur, so Udhampur Court has jurisdiction. That it is for the High Court to transfer the case from one district to another District under Section 526 Cr.P.C. It is only the CJM, who may withdraw any case from Subordinate Magistrate. In this factual backdrop, petitioner has approached this Court by way of instant petition. 3. I have heard leaned counsel for the petitioner at length. From the perusal of Challan submitted by the Women Police Station, Udhampur, it is evident that the Complainant, namely, Salmanah Tabasum (Petitioner herein) along with her father namely Abdul Haji appeared before the Police Station, Women Cell, Udhampur. This complaint has been made against the accused persons namely Shamima Begum W/o Abdul Zabar, Sajad Ahmad, Parvez Ahmad, sons of Abdul Zabar, Abdul Zabar, S/o Ghulam Rasool, R/o Batli, Robina Begum D/o Abdul Zabar, w/o Rouf Ahmad, R/o Arampur Veerinag, Mohd. Shafi, S/o Abdul Aziz, Manzoor Ahmad, S/o Abdul Rashid, R/o Dhalwas Khandal, Tehsil Ramban. It has been stated that Complainant was married with Sajad Ahmad S/o Abdul Zabar R/o Batli, Tehsil Ramban, according to the Muslim Law five years ago but after two months of the marriage, the behaviour of her in-laws was changed and they started demanding dowry. Shafi, S/o Abdul Aziz, Manzoor Ahmad, S/o Abdul Rashid, R/o Dhalwas Khandal, Tehsil Ramban. It has been stated that Complainant was married with Sajad Ahmad S/o Abdul Zabar R/o Batli, Tehsil Ramban, according to the Muslim Law five years ago but after two months of the marriage, the behaviour of her in-laws was changed and they started demanding dowry. They started beating her. But she never disclosed the fact before her parents and lived along with her husband and other accused persons in their house. On 09.08.2016, the in-laws of the complainant including accused No.1 to 3 called a meeting in their house but the complainant was not aware about the facts of the meeting. On the same day in the evening, she along with her sister-in-law was taken in a room and was beaten separately. They also snatched their mobile phones. Accused No.1 to 5 beaten them. The complainant as well as her sister in law was kept in the rooms for two days. On the third day, when cousin sister of the complainant came to their house in order to look after the complainant. In the meantime, the complainant saw her while coming in the house and she asked her to unlock them and she accordingly did so and the complainant as well as her sister in law came out of their rooms. When the cousin sister of the complainant inquired from the mother in law of the complainant that why they had been locked in the rooms, on this her mother in law dragged her cousin sister out of her house. Accused Nos.1 to 5 is unnecessarily harassing the complainant and they are trying to kill her. 4. It has further been stated in complaint that the parents of the complainant are very poor and are not in a position to give her dowry. The complainant is spending her life in her-in-laws house in a miserable condition and she is in a position to commit suicide. Now, the complainant and her sister-in-law had left their in-laws house on 06.09.2017 and now they are in their parental house. On this, FIR No.06/2016 u/s 498-A, 323, 109 RPC was registered in this Police Station and investigation was commenced. After completing the investigation, police produced the challan before the Chief Judicial Magistrate, Udhampur, who transferred the same to the Court of Munsiff (JMIC), Udhampur, for disposal under law. 5. On this, FIR No.06/2016 u/s 498-A, 323, 109 RPC was registered in this Police Station and investigation was commenced. After completing the investigation, police produced the challan before the Chief Judicial Magistrate, Udhampur, who transferred the same to the Court of Munsiff (JMIC), Udhampur, for disposal under law. 5. The Court below after hearing the SPO and counsel for the accused returned the Challan to Investigating Officer through SPO for presenting it before CJM, Ramban. The petitioner has challenged the same on the grounds mentioned in the petition. 6. The impugned order dated 28th April, 2017 passed by the Court of Judicial Magistrate, 1st Class (Munsiff), Udhampur reads as follows:- “Learned Sr. P.O-Ranjeev Gupta present. Counsel for the accused-Sh. Rakesh Sharma, Advocate present. Accused-Abdul Jabbar and Robina Begum absent. Other accused present. Application for exemption of accused-Abdul Jabbar and Robina Begum filed by their counsel and application accepted and exemption granted for today only. Sr. P.O has not filed any objection against the written argument, filed on behalf of the accused by their counsel on the issue of territorial jurisdiction of this Hon’ble Court for the trial of aforesaid case, but he argued on it orally. Arguments heard. It is admitted that the place of occurrence of the offence in this case falls in the territorial jurisdiction of District Ramban. As such, this Court lacks jurisdiction to conduct the trial of the case as per Sections 177 and 178 Cr. P.C. As such, the present Challan is returned to the Investigating Officer through prosecution to present the same before the competent Court of territorial jurisdiction, i.e., learned CJM, Ramban (J&K). Office is directed to prepare the index of the case accordingly and file is consigned to records under rule.” 7. Section 177 Cr.P.C reads as under:- Section 177 of Cr.P.C “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. 8. From the perusal of Section 177 of Cr. P.C, it is evident that the Court in whose jurisdiction offence has been committed, has only the jurisdiction to conduct the trial. This section is meant for the facility of both the prosecution and the defense, who can conveniently attend trial, if it is held in the Court of their locality. 8. From the perusal of Section 177 of Cr. P.C, it is evident that the Court in whose jurisdiction offence has been committed, has only the jurisdiction to conduct the trial. This section is meant for the facility of both the prosecution and the defense, who can conveniently attend trial, if it is held in the Court of their locality. The provision of this section regarding the place of inquiry and trial is applicable to trials whether held under the Code or under any local or special laws. The place of inquiry or trial of an offence is generally dependent as to where and how the offence was committed as gathered from the contents of the complaint or the police report, i.e., the charge-sheet. In absence of any positive proof to the contrary, the Court will be presumed to have jurisdiction on the basis of facts made out by averments. Generally, a Magistrate within whose local jurisdiction the offence has been committed, is authorized to take cognizance and try the case or commit it to the Court of Session. In cases of cruelty as defined under section 498-A Cr.P.C., only Magistrate of the place or places where the wife was actually subjected to cruelty shall have territorial jurisdiction to try the case. 9. From the bare perusal of the facts mentioned in the Challan, it is evident that cruelty as mentioned in section 498-A RPC against the complainant, has taken place within the jurisdiction of Ramban, District and so the JMIC, Ramban has jurisdiction to conduct the trial of the case in terms of Section 177 Cr.P.C. The arguments of learned counsel for the petitioner that only High Court has power under Section 526 Cr.P.C. to transfer the case from one District to another, is not tenable because the Magistrate has returned the Challan to the prosecution before pre-cognizance stage for presenting it before competent Court of territorial jurisdiction and the Magistrate has not transferred the case to CJM Ramban. Another argument that case should have been tried before JMIC Udhampur in terms of section 178 Cr.P.C., is also not tenable because bare perusal of allegations leveled in the challan, it is evident that nothing of any sort has taken place within territorial jurisdiction of District Udhampur and offences as alleged do not appear to be continuing offences. 10. In view of above, this petition is dismissed.