498a Quashed on Jurisdiction

IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.5944 of 2008

1. Maulana Abdul Razak @ Abdul Razak, Son of Md. Ismile.
2. Md. Ismile, Son of Rawawat Hussain.
3. Sainab Khatoon @ Saibunisha, wife of Md. Ismile. All residents of Mohalla- 11C, Teljala Shivtalla Line, P.S. Tapaya, District- Chaubis Pargana, Kolkatta(W.B.)- .Petitioners.

Versus

1. The State of Bihar.
2. Darkhsa Pravin, daughter of Abdul Zabbar, wife of Maulana Abdul Zabbar, resident of Village- Bhadas, P.S. and District- Khagaria. – Opposite Parties.

For the petitioners: M/S. Bhola Prasad and Tarun Prasad Mandal, Advocates.
For the State : Mr. Rajesh Kumar, A.P.P.

04. 01.09.2010. Heard learned counsels for the petitioners and the State.

In spite of valid service of notice on opposite party no.2, none appears on behalf of the opposite party no.2.

In the present proceeding, the quashing of the order dated 15.06.2004 passed by the learned Chief Judicial Magistrate, Khagaria, in complaint case no. 184C of 2004 has been prayed for whereby cognizance has been taken under Section 498A of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act. The main grounds for quashing the impugned order are as follows:-

i) The Khagaria court has no territorial jurisdiction as no cause of action arose in Khagaria rather all the occurrences are alleged to have occurred in West Bengal.

ii) The impugned order has been passed only on the examination of the complainant on S.A. as no other witnesses have been examined.

iii) Earlier complaint with similar allegation being complaint case no. 465C of 2000 was dismissed on 14.08.2001 on the basis of compromise and lack of evidence as contained

in Annexure-2.

iv) The petitioner no.1 has given divorce through letter to opposite party no.2 as contained in Annexure-3/1.

Though learned counsel for the petitioners has confined his submissions only on the ground that the learned Chief Judicial Magistrate, Khagaria, has no territorial jurisdiction to take cognizance in the matter as no cause of action arose within the territorial jurisdiction of Khagaria.

In the present petition, petitioner no.1 is the husband and the petitioner no.2 is father-in-law whereas petitioner no.3 is mother-in-law.

It is alleged that the complainants marriage took place on 06.07.1996 but there has been a consistent demand of Rs. 50,000/- and due to non-payment of the same, the complainant-opposite party no.2 was being assaulted which ultimately led to lodging of complaint case no. 465C of 2000 against all the three accused persons which was ultimately disposed off on the basis of the compromise. Thereafter, the opposite party no.2 was being properly treated but sometimes thereafter the torture started again.

4.The first allegation is dated 01.01.2002 when the witness nos. 1 and 2 went to meet the complainant then the opposite party no.2 was being abused by the accused persons when the father of opposite party no.2 forbade the accused then it was conveyed that unless one lac rupees is paid, the opposite party no.2 will not be allowed to remain in the house and ultimately opposite party no.2 was being assaulted badly by the accused persons. Thereafter, all the belongings of opposite party no.2 was taken away and she was forced to leave the house then the father of opposite party no.2 brought her to his house and got her treated. It is further alleged that subsequently the opposite party no.2 went to the in-laws house on 31.07.2002 at Kolkata where the child of opposite party no.2 was being treated and the second child was born on 31.07.2003.

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The second allegation is dated 26.01.2004, when the opposite party no. 2 was again being assaulted and on information being received the father of opposite party no.2 went to the accuseds house and brought the opposite party no.2 and got her treated. The third allegation is dated 30.03.2004 when the parents of opposite party no.2 sent certain persons for reconciliation then they were also being misbehaved and the belongings of opposite party no.2 were also not returned.

5.From perusal of the complaint, it appears that broadly there were three allegations. They are dated 01.02.2002, 26.01.2004 and 30.03.2004 as mentioned in paragraph nos. 7, 12 and 17 of the complaint.

All the aforesaid three alleged occurrences as per the complaint had taken place in the house of the accused persons and according to the own averment of the complainant, as the accuseds address has been given in the complaint as residents of 24 Parganas District of the West Bengal. Hence, admittedly no cause of action arose within the territorial jurisdiction of Khagaria.

It is further submitted that earlier the complainant filed a complaint being complaint case no. 465C of 2000 which was disposed off due to non-prosecution/non- production of the witnesses on 14.08.2001 vide Annexure-2 wherein the complainant made the statement that she is staying with her husband at Kolkata which is apparent from the order dated 14.08.2001. Hence, the present prosecution is a malicious prosecution.

6.Section 177 Cr. P. C. enumerates the ordinary place of inquiry and trial as every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed.

Learned counsel for the petitioners has placed reliance on the case of Dipanker Dutt Gupta & Ors. Vs. The State of Bihar & Ors reported in 2007(4) P.L.J.R. 528 which lays down that under Section 177 Magistrate has no jurisdiction to deal with an enquiry or trial in respect of the case involving cause of action having not taken place in his territorial jurisdiction.

The other judgment relied by the learned counsel for the petitioners is the case of Md. Kalim and ors. Vs. The State of Bihar & Anr reported in 2009(1) P.L.J.R. 111 which also lays down that the Magistrate has no jurisdiction under Section 177 Cr. P. C. to deal with an enquiry or trial in respect of the case involving cause of action having not taken place in his territorial jurisdiction.

The aforesaid judgment has been passed placing reliance on a judgment of Apex Court 7

in the case of Y. Abraham Ajith Vs. Inspector of police reported in 2004(8) S. C. C. 100.

The expression “cause of action” has acquired 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.

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. In Halsburys Laws of England (4th 8

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Edn.) “cause of action” has been defined in the following words:-

” 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 a 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”.

Admittedly, all the three incidents in the present case, have occurred within the territorial jurisdiction of West Bengal and not in Khagaria hence it appears that no cause of action on the own averments of the complainant arose within the territorial jurisdiction of Khagaria.

It is further submitted by the learned counsel for the petitioners that the complainant of her own went to reside with 9

the parents and she was never been forced to leave the house of the husband and still husband is ready to keep the complainant as wife with full dignity and honour. In the similar situation as discussed above, the Apex Court in the case of Bhura Rai and ors Vs. State of Rajasthan reported in 2008(3) P.L.J.R. S. C. 367 quashed the criminal prosecution. Since cause of action did no arise where the complaint was filed and the complaint was directed to be returned to the complainant with a liberty to the complainant to file the same before appropriate court if complainant so wishes. It is true that Section 177 of Cr. P. C. requires every offence to be enquired, tried by a court in whose local jurisdiction it was committed but Section 460 of Cr. P. C. prescribes certain situations where the irregularities which do not vitiate the proceedings and one of such situation under Section 460(e) is to take cognizance of offence under clause(a) or clause (b) of sub-section (1) of Section 190 by any Magistrate not empowered by law to do. The provision of section 460 (e) Cr. P. 10

C. is further clarified by the provision enumerated in Section 462 Cr. P. C. which reads as follows:-

“462. Proceedings in wrong place- No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice”.

The word “irregularity” has been defined in the Blacks Law Dictionary as” something irregular” specially an act or practice that varies from normal conduct of action” whereas “illegality” has been defined as “an act that is not authorized by the law”. It is true that the order taking cognizance by a court having no territorial jurisdiction can be treated as irregularity under Section 460 of Cr. P.C. whereas from the reading of Section 462 of Cr. P. C. it appears that the finding, sentence or order of the Criminal Court shall not be set aside 11

merely on the ground that it has been passed by a wrong court unless it appears that such error has in fact occasioned a failure of justice.

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Considering the provisions of Sections 177, 460 and 462 of Cr. P. C. in my opinion where the cause of action is such where the jurisdictions are overlapping then the order can be treated as a irregular but in the present case where the complainant has herself admitted that the accused persons are resident of West Bengal where all the three alleged incidents have taken place hence it appears that the complaint was deliberately filed before a wrong court. In such a situation the impugned order can not be treated as irregular rather it is in contravention of the provisions of Section 177 Cr. P. C.

When the question of territorial jurisdiction is raised in any proceedings it has to be seen that at what stage of the proceeding it is raised. If it is raised at the initial stage then it is always advisable to decide the issue immediately without allowing the proceeding to continue 12

further wasting precious time of the court. In the present proceeding the question of territorial jurisdiction has been raised at the cognizance level.

The power under Section 190 Cr. P. C. of taking cognizance by the court does not only mean that the court has to see the sequence of facts which constitutes of offence but has also to see prima facie that those facts constituting the offence have occurred within the territorial jurisdiction of the court concerned who is exercising the powers under Cr. P.C. because if the latitude is given in pursuance to the provision under Sections 460 and 462 of Cr. P. C. the litigants will start filing the criminal cases at any place of their choice taking it for granted that any such order will not be quashed being treated as irregularity which will be violative of Provision of Sections 177 and 178 Cr. P. C.

So far as the provision of Section 460 Cr. P. C. is concerned, it prohibits the setting aside of any order merely on the ground of lack of territorial jurisdiction but it permits the setting aside if it has 13

occasioned the failure of justice and in my opinion the complainant was conscious that all the causes of action arose within the territorial jurisdiction of West Bengal and admitted in the present complaint that the accused persons are residents of West Bengal. It was also admitted in previous proceedings that both the complainant and her husband are residing presently in Kolkata hence the complaint was deliberately filed at Khagaria because it was convenient for the complainant, since she was residing at Khagaria with her parents.

Hence, in my view since the accused persons are admittedly resident of Kolkatta and all the causes of action arose within the territorial jurisdiction of West Bengal therefore, the impugned order has been passed by a court having no territorial jurisdiction, has in fact occasioned the failure of justice.

In the circumstances and the discussions made above, the order dated 15.06.2004 including the entire prosecution of complaint case no. 184 C of 2004 passed by the learned Chief Judicial Magistrate, 14

Khagaria, is hereby quashed. The present quashing application stands allowed. However, the complainant if so advised may receive the complaint from the court of leaned Sub Divisional Judicial Magistrate, Khagaria, for presenting before the court of appropriate jurisdiction if any such prayer is made, then the learned Sub Divisional Judicial Magistrate, Khagaria, will return the complaint to the complainant.

U.K. (Dinesh Kumar Singh,J)

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