IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1168 of 2004
1. Prabhakar Jha
2. Parmanand Jha
3. Indu Devi … … Petitioners
1. The State of Jharkhand
2. Ashok Kumar … … Opposite Parties
CORAM: HON’BLE MR. JUSTICE PRASHANT KUMAR
For a Petitioners: Mr. A.K. Kashyap
For a Sate: Mr. A.K. Sinha, APP
For a O.P. No. 2: Mr. Kalyan Roy
C.A.V. ON 19.08.2009 Delivered On 28.08.2009
Even if a allegations done by a complainant was taken to be loyal on a face value afterwards also a Appellate Court had no territorial office to try a box in perspective of Section 177 and 181(4) of a Code Of Criminal Procedure, 1973 (Cr.P.C) – Thus whole rapist move opposite a Petitioners in tie with PCR Case was tentative in a justice of Sub Divisional Judicial Magistrate, was though jurisdiction.
1. This, is an application, for quashing a sequence antiquated 22.5.2004 upheld by schooled Sub Divisional Judicial Magisterial , Deoghar in P.C.R. Case No. 108 of 2002 analogous to T.R. No. 49 of 2003/224 of 2004 whereby and-whereunder a focus filed by a petitioners for liberate has been rejected.
2 The contribution of a box in brief is that a daughter of complainant (O.P. No. 2), namely Smt. Sweta Kashyap (Jha) was married to Prabhakar Jha (Petitioner No. 1) on 8.2.2001 during Deoghar. It is serve settled that in a marriage, a kin and other relations had given ornaments, low-pitched instruments, residence reason appliances and seat etc, as benefaction to Sweta Kashyap. It is serve settled that a pronounced skill belongs to Sweta Kashyap as her Stridhan. It is serve settled that Sweta Kashyap took those properties to Kolkata and entrusted a same to a indicted persons for gripping them in protected custody. It is serve purported that after a relapse of some time a complainant’s daughter Sweta Kashyap found that her husband, Prabhakar Jha was unqualified to settle passionate propinquity with her due to impotency. It is serve purported that given of a pronounced reason there was aria propinquity between Sweta Kashyap and Prabhakar Jha. It is also purported that given of a aforesaid reason Prabhakar Jha always woe a pronounced Sweta Kashyap and due. to a pronounced torture, she was certified in Intensive Care Unit of Appolo Hospital, Kolkata for treatment. It is serve purported that a complainant after receiving information per a illness of his daughter went to Kolkata and she was brought to Deoghar after being liberated from hospital. It is purported that a matrimony between Sweta Kashyap and Prabhakar Jha, damaged due to a impotency of postulant No. 1. It is serve settled that in perspective of break, of marriage, a notice was given to a petitioners for returning a Stridhan of Sweta Kashyap, that she had entrusted to them for gripping in protected control though a indicted persons did not give any mind to a ask of complainant and / or Sweta Kashyap and thereby they have committed an corruption of rapist crack of trust punishable underneath Section 406 of a IPC.
3. It appears that on a basement of aforesaid censure petition, P.C.R. Case No. 108 of 2002 was instituted by a CJM, Deoghar. It serve appears that a complainant was examined on S.A. and afterward other witnesses were also examined during exploration and afterward a summons were released opposite a indicted persons underneath territory 204 of a Cr.P.C. It appears that afterward a indicted persons seemed and filed a liberate petition in a justice next that was deserted by a impugned sequence opposite that a benefaction focus has been filed.
4. It is submitted by schooled Counsel for a postulant Sri. A.K. Kashyap that from examination of censure petition, matter of complainant on S.A. as good as a matter of Sweta Kashyap, who has been examined in a justice next during a time of inquiry, it is transparent that there is no delegation of any skill to a indicted chairman during Deoghar. It is purported that Sweta Kashyap had entrusted her Stridhan to petitioners in her Sasural situated during Kolkata. The claim of crack of trust” is also during Kolkata. Accordingly, it is submitted that Deoghar justice have no territorial office to try a offences, that has been committed during Kolkata. Accordingly, it is submitted that given a Deoghar justice have no office to try a same, a indicted persons are entitled to be discharged. Thus a schooled justice next had committed critical illegality in interesting a censure petition during Deoghar.
5. On a other palm Sri Kalyan Roy, schooled Counsel for a O.P. No. 2 submits that a skill was means to Sweta Kashyap during Deoghar, therefore partial of a means of movement arose during Deoghar. He serve submits that as per territory 181(4), of a Criminal Procedure Code a corruption of crack of trust can be attempted by a justice within whose internal office a corruption was committed or any partial of a skill that is a theme matter of corruption was perceived or defended or was compulsory to be returned or accounted for by a indicted persons. It is submitted that after a mangle of marital tie in between Sweta Kashyap and postulant No. 1, Sweta Kashyap is staying during Deoghar. She requested a petitioners for returning a Stridhan during Deoghar. Therefore, as per territory 181(4) of Cr.P.C., Deoghar justice have office to try a case. It is submitted that from examination of censure petition, matter of complainant on S.A. as good as a Statement of Sweta Kashyap, it is transparent that a pronounced Sweta Kashyap had entrusted her Stridhan to a petitioners for gripping it in protected custody, that they are not returning even on direct done by her, therefore, prima facie corruption underneath territory 406 of a IPC is done out. Hence a schooled justice next had righteously deserted a liberate petition filed by a petitioners.
6. Having listened a submission, we have left by a record of a case. It is an certified position that a daughter of complainant Sweta Kashyap married with a postulant No. 1 during Deoghar on 8.2.2001. It is settled during divide No. 3 of a censure petition that after a marriage, a aforesaid Sweta Kashyap went to her Sasural situated during Kolkata. It is serve settled in a censure petition that during a matrimony a complainant and his other kin gave ornaments, seat and other residence reason articles to Sweta relates to offences of rapist misappropriation or rapist crack of trust. Section 181(4) of a Cr.P.C. runs as follows:
(4) Any corruption of rapist misappropriation or of rapist crack of trust might be inquired into or attempted by a Court within whose internal office a corruption was committed or any partial of a skill that is a theme of a corruption was perceived or retained, or was compulsory to be returned or accounted for by a indicted person.
From a plain reading of territory 181(4) of a Cr.P.C. it appears that a corruption of rapist crack of trust can be attempted by a justice within whose office a corruption was committed or any partial of a skill was perceived or defended or was compulsory to be. returned or accounted by a indicted persons.
9. As beheld above, in a present case, it is certified by daughter of complainant that she entrusted all her Stridhan i.e. benefaction perceived by her during a marriage, to a indicted persons during Kolkata. The complainant had also settled on S.A. that in participation of witnesses he had given all a articles to his daughter during a marriage. Thus in a present box a delegation of skill is during Kolkata and a properties were also defended during Kolkata.
10. Now a doubt arose as to either after retraction of matrimony if a daughter of complainant resides during her parental residence during Deoghar afterwards a indicted persons are compulsory to lapse a pronounced articles during Deoghar? Their Lordships of Supreme Court in Ashit, Bhattacharya v. Hanuman Prasad Oiha reported in MANU/SC/7676/2007 : (2007) 5 SCC 786 has hold that as per territory 181 subsection 4, corruption of rapist crack of trust might be inquired or attempted by a justice within whose office a indicted was firm by law or by agreement to lapse or accounts a entrusted property. There is positively no law that end a father or his family members to lapse a Stridhan skill of his ex-wife during her parental house. Thus, a petitioners are not firm underneath a law to lapse a Stridhan of Sweta Kashyap during Deoghar. Likewise in a present box a complainant has not brought on record any justification to uncover that during a time of delegation of a pronounced skill there was a agreement and/or agreement between Sweta Kashyap and petitioners that they will lapse her properties during Deoghar. Thus, in my view, a aforesaid law laid down by their Lordships of Supreme Court, a Deoghar justice have no office to perform a censure petition filed by a O.P. No. 2 and try a same. A identical perspective was taken by Punjab Haryana High Court in Hariit Singh Ahluwalia v. State of Punjab and Anr reported in MANU/PH/0314/1986 : 1986 Cr.L.J 2070. In that box a matrimony between a parties solemnized during Delhi, a dowry equipment were also entrusted to them during Delhi and it is purported that a pronounced skill were handed over during Delhi. Thus, it has been hold by their Lordship; that FIR for rapist crack of trust can't be filed during Amritsar.
11. Thus, even if a allegations done by a complainant is taken to be loyal on a face value afterwards also a Deoghar Court have no territorial office to try a pronounced box in perspective of territory 177 and 181(4) Cr.P.C. Thus whole rapist move opposite a petitioners in tie with PCR Case No. 108 of 2002 tentative in a justice of Sub Divisional Judicial Magistrate, Deoghar is though jurisdiction.
12. In a result, this focus is allowed. Entire rapist move relating to PCR Case No. 108 of 2002 analogous to T.R. No. 49 of 2003/224 of 2004 is hereby quashed. It is however, done transparent that if a complainant arid/or Sweta Kashyap if so desires, might record apart censure during Kolkata.