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2018 DIGILAW 978 (JHR)

Mridu Shankar Dey v. State of Jharkhand

2018-05-01

RONGON MUKHOPADHYAY

body2018
ORDER : I.A. No. 2483 of 2008 1. This application has been filed for amendment in the prayer of the main application in view of the subsequent development as during pendency of this application, cognizance has been taken for the offences punishable u/s 323 and 498A of the Indian Penal Code and also u/s 3/4 of the Dowry Prohibition Act vide order dated 06.06.2008 passed by learned Chief Judicial Magistrate, Jamtara and therefore the petitioner also wants to challenge the said order taking cognizance. 2. Since the prayer made in this application seems to have a direct nexus with the prayer made in the main application and in order to avoid multiplicity of proceeding, this application is allowed. 3. The I.A. No. 2483 of 2008 shall be treated as part of the main application. Cr. M.P. No. 1053 of 2007 4. Heard Mr. Indrajit Sinha, learned counsel appearing for the petitioners and Mr. Mithilesh Singh, learned counsel appearing for the opposite party No. 2. 5. In this application the petitioner has prayed for quashing of the entire criminal proceeding in connection with Jamtara P.S. Case No. 42 of 2007 (G.R. No. 96 of 2007), registered for offences punishable u/s 323 and 498A of the Indian Penal Code. Consequent to I.A. No. 2483 of 2008 having been allowed, the petitioner has also made a challenge to the order dated 06.06.2008 passed by learned Chief Judicial Magistrate, Jamtara by which cognizance has been taken for the offences punishable u/s 323 and 498A of the Indian Penal Code and also u/s 3/4 of the Dowry Prohibition Act. 6. It has been stated by learned counsel for the petitioner that the entire incident as alleged in the complaint initially filed, is said to have been taken place either at Bokaro or at Asansol and there being no averment in the complaint petition of any incident having been taken place at Jamtara and as such the Court at Jamtara does not have territorial jurisdiction to try this case. In support of his contention learned counsel for the petitioner has relied on a decision in the case of Amarendu Jyoti and Others vs. State of Chhatisgarh and Others, (2014) 12 SCC 362 as well as the Judgment dated 11.03.2015 passed in Cr. M.P. No. 604 of 2010 in the case of Rajkishori Devi and Others vs. State of Jharkhand and Another. 7. Mr. M.P. No. 604 of 2010 in the case of Rajkishori Devi and Others vs. State of Jharkhand and Another. 7. Mr. Mithilesh Singh, learned counsel for the opposite party no. 2 has opposed the prayer made by the petitioner and has stated that since on account of the opposite party No. 2 having started residing at her parental house, the same was on account of consequence of the offence and therefore the Court at Jamtara has jurisdiction to try the case. In support of his contention learned counsel for the petitioner has relied on a decision in the case of Sunita Kumari Kashyap vs. State of Bihar and Another, (2011) 11 SCC 301 . 8. Initially a complaint was instituted by the opposite party No. 2 in which it was stated that she was married with the petitioner on 26.02.2000 as per Hindu rites and customs. It has been alleged that after some time the complainant was asked to bring Rs. 10,000/- from her parents for purchasing a fridge but on account of inability shown by her parents in fulfilling the said demand, the petitioner had started ill-treating the complainant. Although the father and brother of the complainant had tried to persuade the accused persons to settle the matter but the torture continued and ultimately on 06.08.2000, the complainant was mercilessly assaulted by the accused Mridu Shankar Dey Sarkar and driven out from her matrimonial home. In January, 2001 the complainant gave birth to a male child and the entire expenses were borne by her father. Ultimately at the instance of well-wishers, the matter was once again settled and the complaint started living at her matrimonial home, but she was once again assaulted by the petitioner and others. The dispute was once again settled and it was agreed that the complaint shall reside at the work place of the petitioner at Bokaro, who shall keep the complaint as well his minor son with full dignity and honour in a rented quarter at Bokaro. However after lapse of sometime, the torture started upon the complainant and once again she was driven out from the said rented quarter at Bokaro, which ultimately led to institution of Jamtara P.S. Case No. 42 of 2007. 9. However after lapse of sometime, the torture started upon the complainant and once again she was driven out from the said rented quarter at Bokaro, which ultimately led to institution of Jamtara P.S. Case No. 42 of 2007. 9. The only point raised by the learned counsel for the petitioner relates to absence of territorial jurisdiction of the Court at Jamtara, which has been vehemently opposed by the learned counsel for the opposite party No. 2. 10. The perusal of the complaint petition reveals that the allegation of physical and mental torture had either taken place at Asansol or at Bokaro. There is not even a whisper of any allegation having been taken place in the district of Jamtara. Whether the complainant resorting to taking shelter in her parental house as a consequence of her being driven out from the matrimonial home would confer jurisdiction upon the court at Jamtara has to be seen from the facts situation of the case as also the various references made by the learned counsel for the respective parties. 11. Mr. Mithilesh Singh, learned counsel appearing for the opposite party No. 2 has referred to the case of Sunita Kumari Kashyap vs. State of Bihar and Another, (2011) 11 SCC 301 , wherein it was held as follows:- “18. We have already adverted to the details made by the appellant in the complaint. In view of the specific assertion by the appellant-wife about the ill-treatment and cruelty at the hands of the husband and his relatives at Ranchi and of the fact that because of their action, she was taken to her parental home at Gaya by her husband with a threat of dire consequences for not fulfilling their demand of dowry, we hold that in view of Sections 178 and 179 of the Code, the offence in this case was a continuing one having been committed in more local areas and one of the local areas being Gaya, the learned Magistrate at Gaya has jurisdiction to proceed with the criminal case instituted therein. In other words, the offence was a continuing one and the episode at Gaya was only a consequence of continuing offence of harassment of ill-treatment meted out to the complainant, clause (c) of Section 178 is attracted. In other words, the offence was a continuing one and the episode at Gaya was only a consequence of continuing offence of harassment of ill-treatment meted out to the complainant, clause (c) of Section 178 is attracted. Further, from the allegations in the complaint, it appears to us that it is a continuing offence of ill-treatment and humiliation meted out to the appellant in the hands of all the accused persons and in such continuing offence, on some occasion all had taken part and on other occasion one of the accused, namely, husband had taken part, therefore, undoubtedly clause (c) of Section 178 of the Code is clearly attracted.” 12. In the case of In the case of Amarendu Jyoti and Others vs. State of Chhattisgarh and Others, (2014) 12 SCC 362 a similar issue was under consideration and it was held that an offence of cruelty cannot be said to be a continuing offence in terms of Sections 178 and 179 of the Code of Criminal Procedure. The relevant portion of the judgment of Amarendu Jyoti (Supra) reads as follows:- “11. 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 appellants 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. The judgment of Amarendu Jyoti (Supra) has been considered in Cr. 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. The judgment of Amarendu Jyoti (Supra) has been considered in Cr. M.P. No. 604 of 2010 in the case of Rajkishori Devi and Others vs. State of Jharkhand and Another, wherein it was held as follows:- “Thus, it is a settled law that merely because the complainant had been turned out from her matrimonial home, the mental torture allegedly inflicted upon her cannot be termed as a continuing offence even though she is residing at her parental house as an outcome of the alleged actions on the part of the accused persons. Admittedly, jurisdiction in terms of the allegations made in the complaint petition filed by the complainant/opposite party No. 2 lies within the Court at Gopalganj as no part of the offence is said to have been taken place within the territorial jurisdiction of the Court at Dhanbad. In such circumstances, the criminal proceedings at Dhanbad Court cannot be allowed to be continued on the ground of there being no territorial jurisdiction to continue the same.” 14. The factual aspect with respect to the case of Sunita Kumari Kashyap is quite different to the factual aspect of the present case, as enumerated in the complaint petition. As has been stated above there is no inkling or iota of assertion made by the complainant of any attempt made by the accused persons to have committed torture upon the complainant in her parental house in the District of Jamtara and therefore it cannot be said that taking shelter in the house of her parents by the complainant on account of her ouster from her matrimonial home would be considered to mean cruelty having been committed in her parental house, which would entail jurisdiction of the Court at Jamtara. 15. In such fact circumstances, therefore, it is apparently clear that not a single occurrence has been taken place at Jamtara. Therefore the Court at Jamtara does not have territorial jurisdiction to try the case. 15. In such fact circumstances, therefore, it is apparently clear that not a single occurrence has been taken place at Jamtara. Therefore the Court at Jamtara does not have territorial jurisdiction to try the case. In such view of the matter, this application is allowed and the entire criminal proceeding including the order dated 06.06.2008 passed by learned Chief Judicial Magistrate, Jamtara in connection with Jamtara P.S. Case No. 42 of 2007 (G.R. No. 96 of 2007 by which cognizance has been taken for the offences punishable u/s 323 and 498A of the Indian Penal Code and u/s 3/4 of the Dowry Prohibition Act, is hereby quashed and set aside. 16. However, it goes without saying that the complainant is at liberty to present a complaint before the court having the territorial jurisdiction to try the case. Application allowed.