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2019 DIGILAW 209 (JHR)

Upendra Saw v. State of Jharkhand

2019-01-22

RAJESH SHANKAR

body2019
JUDGMENT : 1. The present petition has been filed for quashing the entire criminal proceeding of C.P Case No. 1025 of 2009 as well as the order dated 07.04.2010 passed by the learned Judicial Magistrate, 1st Class, Dhanbad whereby the cognizance of the offences under Section 498-A/34 of the Indian Penal Code has been taken and summons have been issued to the petitioners. 2. The learned counsel for the petitioners submits that a complaint petition being C.P Case No. 1025 of 2009 has been instituted against the petitioners alleging inter alia that the marriage of the petitioner no. 1-Upendra Saw and the opposite party no. 2- Sunaina Devi was solemnized on 23.04.2004 at Sree Sree Nilkanth Basni Mata, Katras (Lilori Asthan). After one year of marriage, the petitioners started assaulting the opposite party no. 2 for the demand of dowry due to the reason that no child was born out of the said wedlock. The opposite party no. 2 informed the matter to the witness nos. 1 to 3 who went to the matrimonial home (house of the petitioners) on 21.05.2009 at Akhora, P.S Daudnagar within the jurisdiction of Aurangabad (Bihar). However, they were assaulted by the accused persons (petitioners) and their signatures/thumb impression were taken on blank papers. On 01.06.2009, when the witnesses returned back from the house of the petitioners (the accused persons), they badly assaulted the complainant (opposite party no.2) and ousted her from their house without any article and all the ornaments of the complainant were snatched by the accused persons forcibly. Her cloths were also not given by them. Thereafter the complainant reached Loyabad (Dhanbad) and narrated the occurrence to her widow mother. On 03.06.2009, the accused no. 1 threatened the opposite party no. 2 on telephone that if her mother does not fulfill the demand of Rs. 50000/- cash and one motorcycle, the petitioner no.1 will solemnize second marriage. 3. The main submission of the learned counsel for the petitioners is that as per the complaint, the place of occurrence is at Aurangabad (Bihar) and therefore the trial court at Dhanbad (Jharkhand) has no jurisdiction to try the same. The allegations made in the complaint are omnibus in nature and the opposite party no. 2 has failed to describe any specific role of the petitioners. 4. The learned counsel for the opposite party no. The allegations made in the complaint are omnibus in nature and the opposite party no. 2 has failed to describe any specific role of the petitioners. 4. The learned counsel for the opposite party no. 2 submits that complaint sufficiently discloses the fact that the alleged cruelty by the petitioners continued to her parental home i.e. the district of Dhanbad and as such the learned court below is competent to entertain the complaint and take cognizance of the offences against the petitioners. The learned counsel puts reliance on a judgment of the Hon’ble Supreme Court rendered in the case of Sunita Kumari Kashyap Vs. State of Bihar and Another reported in (2011) 11 SCC 301 . 5. Heard the learned counsel for the parties and perused the materials available on record. The petitioners have primarily raised objection to the territorial jurisdiction of Dhanbad Court (Jharkhand) in entertaining the present complaint. The contention of the learned counsel for the petitioner is that no part of cause of action has arisen within the jurisdiction of Dhanbad Court and in support of the same, the learned counsel for the petitioners puts reliance on the judgment rendered by the Hon’ble Supreme Court in the case of Bhura Ram and Others Vs. State of Rajasthan and Another reported in (2008) 11 SCC 103 . Learned counsel further puts reliance on the judgment rendered by a Bench of this Court in the case of Bipad Taran Das @ Bipat Taran Das @ Biptaram Das Vs. State of Jharkhand and another (Cr.M.P No. 1009 of 2009). 6. To appreciate the rival contentions of the learned counsel for the parties, I have perused the contents of the complaint. Paragraph- 10 of the said complaint reads as under:- “10. That, on 03.06.09 by telephone the accused no. 1 have threatened to the complainant if your mother will not be fulfilled the demand of Rs.50,000/- cash and one Motor Cycle then the accused will solemnize second marriage as because the several persons are ready to marry with the accused no. 1.” 7. The incident as narrated in the aforesaid para appears to have taken place in Dhanbad i.e. the parental home of the opposite party no. 2 where she was subjected to mental cruelty on account of non-fulfilment of demand of dowry. 1.” 7. The incident as narrated in the aforesaid para appears to have taken place in Dhanbad i.e. the parental home of the opposite party no. 2 where she was subjected to mental cruelty on account of non-fulfilment of demand of dowry. The offence under Section 498-A of I.P.C. is a continuing offence and a complaint may be filed at any place where the part of cause of action has arisen. In the aforesaid situation, I do not find any substance in the contention of the learned counsel for the petitioners. 8. In the case of Bhura Ram (supra), the Hon’ble Apex Court, on the facts of the said case observed that no part of cause of action had arisen with the territorial jurisdiction of the city of Sri Ganganagar, State of Rajasthan, rather all the acts as alleged in the compliant had been done in the State of Punjab. On the said fact, the proceeding before the Additional Chief Judicial Magistrate, Sri Ganganagar was quashed. Further in the case of Bipad Taran Das (supra.), a Bench of this Court had the occasion to deal with a case where the complainant had reflected that the overt act alleged to have been done by the accused at Bankura (West Bengal) and not at Dhanbad (Jharkhand) and as such the complaint petition was quashed. 9. However, the facts and circumstance of the present case is factually different from the cases cited by learned counsel for the petitioner. In the present case, the part of the alleged overt act of the petitioners has been done within the territorial jurisdiction of Dhanbad Court when the petitioners allegedly threatened the opposite party no. 2 on phone while she was residing at her parental home at Loyabad (Dhanbad). Clause (b) of Section 178 of the Code of Criminal Procedure envisages that where an offence is committed partly in one local area and partly in another, such offence can be tried by a court having jurisdiction over any such local area. Further Clause (c) of Section 178 of Cr.P.C. contemplates that where an offence is a continuing one, and continues to be committed in more local areas then such offence can be tried by a court having jurisdiction over any of such local areas. 10. In the case of Sunita Kumari Kashyap (Supra.), the Hon’ble Supreme Court has held as under:- “18. 10. In the case of Sunita Kumari Kashyap (Supra.), the Hon’ble Supreme Court has held as under:- “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, as the offence was a continuing one and the episode at Gaya was only a consequence of continuing offence of harassment and 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 at the hands of all the accused persons and in such continuing offence, on some occasions all had taken part and on other occasions one of the accused, namely, the husband had taken part, therefore, undoubtedly clause (c) of Section 178 of the Code is clearly attracted.” 11. Moreover, in the case of Trisuns Chemical Industry v. Rajesh Agarwal & Others, reported in (1999) 8 SCC 686 , the Hon’ble Supreme Court has held thus; “14. The jurisdictional aspect becomes relevant only when the question of enquiry or trial arises. It is therefore a fallacious thinking that only a Magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to the court which has jurisdiction to enquire into or try the offence and that situation would reach only during the post-cognizance stage and not earlier.” 12. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to the court which has jurisdiction to enquire into or try the offence and that situation would reach only during the post-cognizance stage and not earlier.” 12. Otherwise also, the order taking cognizance cannot be challenged on the ground of territorial jurisdiction of the Judicial Magistrate. The issue regarding jurisdiction is required to be decided at the post cognizance stage. 13. In view of the aforesaid discussion, I am not inclined to interfere with the criminal proceeding arising out of C.P Case No. 1025 of 2009 as also the order taking cognizance dated 07.04.2010 passed by the learned Judicial Magistrate, 1st Class at Dhaband. 14. The present Cr.M.P. is, accordingly, dismissed. 15. The interim order, if any, stands vacated.