IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present: The Hon’ble Justice Shivakant Prasad
C.R.A.N NO.2405 of 2016
in
C.R.R 2979 of 2013
Sujoy Lahiri
Versus
Sm. Nandini Lahiri Anr.
For the Petitioner : Mr. Tapas Kumar Dey
For the Opposite Party No. 1 : Mr. Saidur Rahaman
Heard on : 12.05.2017
Order on : 19.05.2017
SHIVAKANT PRASAD, J.:- In this application under the scheme of
Articles 227 of the Constitution of India the petitioner has prayed for
recalling of the order dated 05.01.2016 passed by this Court and to
quash the FIR dated 01.03.2009 being Chandannagar Police Station
Case No.35 of 2009 under Sections 498A, 406/120B of Indian Penal
Code.
For quashing the proceeding and FIR aforesaid, the petitioner
had filed CRR No.2979 of 2013. It is revealed from the order dated
05.01.2016 that since none had appeared on call the matter was
taken up for disposal on the merit of the revisional application and
this Court was of the view on perusal of the impugned order of the
Additional Chief Judicial Magistrate, Chandannagar that where there
is sufficient materials for framing of charge against accused persons,
there is no scope for discharging the accused persons from the case
and accordingly CRR 2979 of 2013 was dismissed on its merit.
The said order has been sought to be recalled by the petitioner
by filing present application on the contention that the said case was
listed before the Hon’ble Justice Asim Kumar Roy on 27.08.2013
when the petitioner was directed to serve a copy of the application
along with annexure upon the Opposite Parties and the matter was
adjourned till 6th September, 2013 and the same was complied with
thereafter the matter appeared in the list for hearing but the said
matter came up for hearing before this Court after 3 years when
learned Advocate on record could not keep track of events and
overlooked the same. It is contended that due to non-appearance of
the parties, this Court was pleased to pass the order dismissing the
application on its merit without giving verdict on the core issue in the
case relating to jurisdiction as the petitioner had filed application
regarding territorial jurisdiction before the Additional Chief Judicial
Magistrate, Chandannagar which application was dismissed by the
impugned order dated 22.02.2013 on the finding that the court had
no inherent power to quash and/or discharge the accused persons
on the ground of territorial jurisdiction. So, the petitioner preferred
the criminal revision for application of its inherent jurisdiction for
quashment of the proceeding.
Learned counsel for the petitioner fortified his argument relying
on a decision of Chitta Ranjan Roy Ors. vs. The State of West
Bengal Anr. reported in (2012)3 C.Cr.LR (Cal) 375 which
according to the petitioner there is no scope to try and entertain the
FIR by Chandannagar Court instead of Alipore Court, as the cause of
action arose in Behala in the District of 24 Parganas (South). It is
further pointed out that the dismissal of the revisional application
vide order dated 05.01.2016 of this Court will empower the
Additional Chief Judicial Magistrate, Chandannagar to try the case
without having any jurisdiction which will be a serious abuse of law.
In the cited decision, it was held that the alleged incident of
torture took place at Buxar where the complainant wife resided with
her husband. Hence, jurisdiction to entertain the criminal proceeding
by Asansol Court was barred and accordingly the criminal proceeding
was quashed.
I am not fully in agreement with the observation made in the
above cited decision on the factual scenario. The allegation raised in
the complaint in the instant case is that since after the marriage the
complaint wife/opposite party herein had observed unnatural
behavior of her husband who inflicted torture by hurling abusive
language and physical assault on her. On 22.2.2009 at about 8:30
PM at night the petitioner/husband under influence of liquor beat his
wife/the opposite party and her mother-in-law also joined with the
petitioner whereas the father-in-law of the opposite party somehow
escaped her from being severely beaten who took her to her parental
home at Chandannagar where she fell ill and was treated in
Chandannagar Sadar Hospital on 27.2.2009. So, the offence under
Section 498A IPC in my opinion is a continuing offence because she
continues to suffer mental cruelty with physical suffering due to
assault on her.
In this context it would be apt to refer to a landmark judgment
of the Hon’ble Apex Court on territorial jurisdiction of court in case of
an offence under Section 498A of IPC. It has been held that when
offence is a continuing one having been committed, any one of such
courts has jurisdiction to proceed with the trial. Reference may be
made to a case of Sunita Kumari Kashyap vs State Of Bihar And
Anr. reported in AIR 2011 SC 1674 : 2011 Cri.L.J 2667 wherein
the only issue for consideration was whether criminal proceedings
initiated by the appellant at Gaya against her husband and his
relatives was maintainable or not for lack of jurisdiction. The
appellant had got married with the respondent at Gaya. When she
was pregnant, she was forcibly taken out of her matrimonial home at
Ranchi and brought to her parental home at Gaya. It was for the
harassment and torture meted out to her by her in-laws for demand
of additional amount of dowry. The appellant wife had lodged an FIR
under Sections 498A and 406 read with Section 34 of Indian Penal
Code and Sections 3 and 4 of the Dowry Prohibition Act, 1961 at
Magadh Medical College Police Station, Gaya. The Chief Judicial
Magistrate took cognizance on the charge sheet and transferred the
case to the Sub-Divisional Judicial Magistrate, Gaya for trial. An
objection was raised stating that the Court at Gaya had no
jurisdiction.
After considering all the relevant materials including the
allegations in the complaint learned Magistrate rejected the said
objection. Thereafter the accused persons preferred Criminal
Miscellaneous case before the High Court of Judicature at Patna and
the High Court found that the proceedings at Gaya are not
maintainable for lack of jurisdiction and quashed the entire
proceedings with liberty to file the same in appropriate Court.
Aggrieved by the order of High Court special leave petition was
preferred and the Hon’ble Apex Court while considering the special
appeal and by quoting the provisions of Sections 177 to 179 of the
Code of Criminal Procedure dealing with the jurisdiction of the
criminal courts in inquiries and trials, was of the clear opinion that
normal rule is that the offence shall ordinarily be inquired into and
tried by a court within whose local jurisdiction it was committed.
However, when it is uncertain in which of several local areas an
offence was committed or where an offence is committed partly in one
local area and partly in another or where an offence is a continuing
one, and continues to be committed in more than one local area and
takes place in different local areas as per Section 178, the Court
having jurisdiction over any of such local areas is competent to
inquire into and try the offence. Section 179 makes it clear that if
anything happened 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.
On the basis of a written complaint Chandannagar specific
police case was started against the petitioner which reflects a
continuing offence of maltreatment meted out to the opposite party in
the hands of the petitioner. Therefore, in consideration of the
provision of Section 178 (c) of the Code of Criminal Procedure and
relying on the principle laid down in the landmark judgment of the
Hon’ble Supreme Court cited above, this Court does not find any
merit in the application.
I once again record that the order passed by the Additional
Chief Judicial Magistrate, Chandannagar is absolutely correct on the
core issue of jurisdiction of the Court in the offence alleged under
Section 498A IPC. I hold that the offence under Section 498A IPC is
no doubt a continuing offence and the Court of the Additional Chief
Judicial Magistrate, Chandannagar has every jurisdiction to
entertain the trial of the petitioner.
Ergo, CRAN No.2405 of 2016 is hereby dismissed with an
exemplary cost of Rs.5,000/- (five thousand) to be deposited with the
Secretary, High Court Legal Service committee for use of the cost by
the destitute children.
A copy of this order be sent to the Additional Chief Judicial
Magistrate, Chandannagar forthwith with direction to hold the trial
and to dispose of the case preferably within 6 months from the date
of the communication of the order.
(Shivakant Prasad, J.)