Jagdish Chandra & Others vs State Of U.P. & Another on 17 July, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R. 1

Court No. – 19

Case :- APPLICATION U/S 482 No. – 7335 of 2003

Applicant :- Jagdish Chandra Others

Opposite Party :- State Of U.P. Another

Counsel for Applicant :- Dharmendra Singhal

Counsel for Opposite Party :- Govt. Advocate,Jai Narain

Hon’ble Mrs. Vijay Lakshmi,J.

The applicants, who are the husband, father-in-law, mother-in-law and brothers-in-law  respectively of opposite party no.2, by means of this application under Section 482, Cr.P.C. have invoked the inherent jurisdiction of this Court for quashing the charge-sheet submitted by the police in Case Crime No.564 of 2003 under Sections 498-A, 323,506 I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station-Gandhi Park, District- Aligarh.

Heard Shri Ritwik Mittal, learned counsel for the applicants and the learned A.G.A. for the State. Though the name of Shri Jai Narayan is printed in the cause list, as counsel for the O.P. No.2, but no one is present on behalf of O.P. No.2.  

Learned counsel for the applicants has submitted that the applicants are innocent and by a general allegation all of them have been falsely implicated in this case by means of an application under Section 156 (3) Cr.P.C. Learned counsel for the applicants has further submitted that the jurisdiction has wrongly been invoked by the learned Chief Judicial Magistrate, Aligarh as the entire episode has taken place at Haldwani and not at Aligarh. It is further submitted that the applicant nos.2 to 5, are not the direct beneficiaries and they have absolutely no concern either with the dowry demand or treating the O.P. No.2 with cruelty in connection with such demand. It is further submitted that the prosecution story, that the applicants committed maarpeet with the O.P. No.2 in the presence of her parental side family members, is wholly unreliable.

It is further contended by learned counsel for the applicants that applicant no.1 is the husband and on general allegations, entire family has been falsely implicated in the present case only to put pressure upon the husband, therefore, criminal prosecution of the applicants is bad in law. Learned counsel for the applicants has relied upon the judgment of the Hon’ble Apex Court reported in (2012) 10 SCC 741, Geeta Mehrotra and another Vs. State of Uttar Pradesh in support of his contention.

Per contra, learned A.G.A has opposed the application by contending that the offence under Section 498A being a continuing offence and in view of the specific averments made in the application under Section 156 (3) Cr.P.C. that the applicants committed maarpeet with the O.P. No.2 at Aligarh, the Court of Chief Judicial Magistrate, Aligarh has also the jurisdiction to hear this case and the learned Chief Judicial Magistrate has rightly taken the cognizance on the said charge sheet.

Considered the submissions.

So far as the issue regarding jurisdiction of the Court of C.J.M. Aligarh is concerned, Chapter XIII of the Code of Criminal Procedure, 1973 (in short “Code”) deals with jurisdiction of the criminal courts in inquiries and trials. Sections 177-179 of Cr.P.C. are relevant which are reproduced as under:

“Section 177. 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.

Section 178. Place of inquiry or trial. (a) When it is uncertain in which of several local areas an offence was committed, or

(b) where an offence is committed partly in one local area and partly in another, or

(c) where an offence is a continuing one, and continues to be committed in more local areas than one, or

(d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.

Section 179. Offence triable where act is done or consequence ensues. When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.”

From the provisions of Section 179 Cr.P.C., as mentioned above, it is clear that if anything happens 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.

Now reverting back to the facts of the case in hand it is apparent from the allegations made in the application under Section 156 (3) Cr.P.C. that the wife/O.P. No.2 has been sent to her parental home and has been forced to live there under compelling circumstances. It is also evident that during the Panchayat held at Aligarh, the applicant and his family members committed Maarpeet with the wife (O.P. No.2), therefore, it cannot be said that no offence was committed at Aligarh (the parental home of O.P. No.2).

In Sujata Mukherjee (Smt) vs. Prashant Kumar Mukherjee, (1997) 5 SCC 30, similar issue was considered by the Apex Court and it was held that clause (c) of Section 178 of the Code is attracted and the Magistrate at wife’s parents’ place has also jurisdiction to entertain the complaint.

In State of M.P. vs. Suresh Kaushal and Another, (2003) 11 SCC 126, again in a similar circumstance, considering the provisions of Section 179 with reference to the complaint relating to the offences under Section 498A read with Section 34 IPC, the Apex Court held as under:

“The above Section contemplates two courts having jurisdiction and the trial is permitted to take place in any one of those two courts. One is the court within whose local jurisdiction the act has been done and the other is the court within whose local jurisdiction the consequence has ensued.”

In view of the above discussed legal position, I am of the considered view that the C.J.M. Aligarh has rightly exercised his jurisdiction in this case. However, as the entire family, including the family members who are not the direct beneficiaries, have been roped in by a general allegation, all of them cannot be treated at par.

Accordingly, in respect of applicant no.1 (husband) namely; Jagdish Chandra, following order is being passed:-

All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 and recently in the case of A.R.C.J. Vs. Nimra Carglass Technics (P) Ltd. (2016) 1 SCC 348.

The submissions made by the learned counsel for the applicant calls for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge by moving a proper application for the said purpose before the trial court and he is free to make all the submissions in the said discharge application before the Trial Court including those which have been canvassed by him before this Court in this application.

The prayer for quashing the charge sheet is refused.

At this juncture learned counsel for the applicant prayed that the applicant no.1 is ready to surrender before the court and to move bail application but the court below be directed to consider his bail application expeditiously in accordance with the law as laid down by this Court in the Full Bench decision of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 affirmed by Hon’ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC).

Learned A.G.A. has no objection against the aforesaid prayer.

In view of the above, it is directed that if the applicant no.1 appears before the court below and applies for bail within 30 days from today, the court below shall make endeavour to decide the bail application keeping in view the observations made by this Court in the Full Bench decision of Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 and affirmed by Hon’ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC).

For the aforesaid period of 30 days, no coercive action shall be taken against the applicant no.1. However, in case the applicant no.1 does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.

With the aforesaid directions, this application is finally disposed off, so far as applicant no.1 is concerned.

With respect to applicant nos.2 to 5, following order is being passed:

Counter affidavit be filed within four weeks.

As prayed by the learned counsel for the applicants two weeks’ thereafter is granted for filing rejoinder affidavit.

List after expiry of the aforesaid period.

Till the next date of listing, no coercive action shall be taken against the applicant nos.2 to 5 in the aforesaid case.

Order Date :-17.7.2017-SB

 

 

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