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498a Quash – Unexplained delay, Malicious prosecution

Patna High Court

CRIMINAL MISCELLANEOUS No.33875 OF 2000

In the matter of an application under Section 482 of the Code of Criminal Procedure,1973.

1. MD. TUFFAIL AHMAD MASUM , SON OF MD. SHAMSUS JOHA.
2. NAYAZ JAVED, SON OF MD. SHAMSUS JOHA.
3. AJEEM JAVED, SON OF MD. SHAMSUS JOHA.
4. MUSTAKIM JAVED, SON OF MD. SHAMSUS JOHA.
5. MD. SHAMSUS JOHA, SON OF LATE ABDUL QUAIM.
6. MUSTURI BEGUM @ HAJARA, WIFE OF MD. SHAMSUS JOHA.
7. MD. ASHURAQUE HUSSAIN, SON OF LATE MD. GOINUDDIN. ALL ARE RESIDENT OF VILLAGE KHARUA, P.S. SADAR DARBHANGA, DISTRICT DARBHANGA, AT PRESENT RESIDENT OF NEW COLONY, QR. NO.463/A.P.O. AND P.S. KATIHAR, DISTRICT KATIHAR…. … PETITIONERS.

Versus

1. THE STATE OF BIAHR

2. GULNAZ ARRA @ RINA @ HINA, WIFE OF KALIMULLAH AFTAB, DAUGHTER OF HAZI BASIR AHMAD SHAIDI, RESIDENT OF JITBARPUR CHAUTHA, P.S. SAMASTIPUR, MUFASSIL, DISTRICT SAMASTIPUR…. … OPPOSITE PARTIES.

For the Petitioners : M/S Subodh Kumar, Adv.Firoz Shamim, Adv.
For O.P. No.2 : Mr. Sadaquat Hussain,Sr.Adv.
For the State : Mrs.Indu Bala Pandey, A.P.P.

P R E S E N T

THE HON’BLE MR. JUSTICE RAKESH KUMAR

Rakesh Kumar,J. Seven petitioners, who are in-laws family members of opposite party no.2 are before this Court with a prayer to quash an order dated 17.7.1999 passed by Sri Raj Kumar Singh, Judicial Magistrate, Ist Class at Samastipur in Complaint Case No.472 of 1997/T.R. No.695 of 2000. By the said order, the learned Magistrate has taken cognizance of the offence under Section 498(A) of the Indian Penal Code against the accused persons including the petitioners.

2. Short fact of the case is that opposite party no.2 on 1.5.1997 filed a complaint in the court of Chief Judicial Magistrate, Samastipur, which was registered as Complaint Case No.472 of 1997. In the said complaint, it was alleged that she was married to Accused No.1, namely, Md. Kalimullah Aftab (who is not before this Court) in the year 1991. It was alleged that after the marriage, all accused persons started torturing the opposite party no.2 with a view to extract dowry. Finally, after assaulting on 15.3.1995 the opposite party no.2 was ousted from the house of her in- laws, which was in Katihar. Thereafter, she came to the house of her parents at Samastipur and started to live with her parents at Samastipur. It was disclosed that steps were also taken to settle the dispute. However, all efforts went in vain. Accordingly, the present complaint petition was filed. After filing the complaint petition, the learned Magistrate conducted an enquiry and thereafter, by order dated 17.7.1999, took cognizance of offence under Section 498(A) of the Indian Penal Code and directed for summoning the accused persons.

3. Aggrieved with the order dated 17.7.1999 passed by Sri Raj Kumar Singh, Judicial Magistrate, Ist Class, Samastipur, the petitioners approached this Court by filing the present petition. On 2.11.2001, while issuing notice to opposite party no.2, this Court directed that till further orders, further proceedings in T.R. Case No.695 of 2000 pending in the court of Judicial Magistrate, Ist Class, Samastipur shall remain stayed and on 11.4.2002, the case was admitted and it was directed that interim order passed on 2.11.2001 shall remain operative. The interim order of stay is still continuing.

4.         Learned          counsel            for      the

petitioners, while pressing the present

petition and questioning the order of

cognizance, has raised preliminary objection on the point of jurisdiction of the learned Magistrate, Samastipur. It was submitted that in the entire complaint petition, it was alleged by the complainant that entire occurrence had taken place at Katihar. It was submitted that no part of cause of action arose within the territorial jurisdiction of Samastipur Court and as such the learned Magistrate at Samastipur was not competent to take cognizance of the offence in present case. Besides questioning the jurisdiction of the learned Magistrate, the learned counsel for the petitioners has argued that the order of cognizance and entire proceeding in Complaint Case No.472 of 1997 is liable to be set aside on the ground that the prosecution was initiated maliciously and arbitrarily. It was submitted that the opposite party no.2 had voluntarily left the house of her husband on 15.3.1995. Apprehending false implication, the husband of the opposite party no.2 on 6.11.1995, had filed an informatory petition in the court of Sub Divisional Officer, Katihar. A copy of same has been brought on record as Annexure-3 to the petition. It was disclosed in the informatory petition that the opposite party no.2 was not willing to reside with her husband Md. Kalimullah Aftab. It was further submitted that since the opposite party no.2 was not at all willing to reside with her husband, her husband approached “Darul-Kaza Emaratsharia” with a prayer to get a decree of divorce (Talaque) and on 23.4.1997, divorce order was passed by “Darul-Kaza Emaratsharia” (Annexure-2 to the petition, which is at Page-24) , which is in Urdu language and Page-25, there is the Hindi translation of the said divorce order. It was further submitted that even in complaint petition, no specific allegations were levelled against the petitioners. The petitioner nos.1 to 4 are brothers of husband of opposite party no.2, petitioner nos.5 and 6 are father-in-law and mother-in-law respectively of opposite party no.2 and petitioner no.7 is the uncle of husband of opposite party no.2. While questioning the jurisdiction of the learned Magistrate, learned counsel for the petitioners has referred to number of judgments of Hon’ble Supreme Court reported in 2004 (8) SCC 100 (Y. Abraham Ajith others vs. Inspector of Police, Chennai another), 2008(3) PLJR 367 SC (Bhura Ram others vs. State of Rajasthan), 2009(1) PLJR 111 (Md. Kalim  others vs. The State of Bihar another), 2009(4) PLJR 189 (Shailendra Kumar Singh vs. The State of Bihar another), 2009(1) SCC 720 (Harman Electronics Private Limited vs. National Panasonic India Private Limited) amd 2000(7) SCC 640 (Navinchandra N. Majithia vs. State of Maharashtra and others). It was submitted that in view of Section 177 of the Code of Criminal Procedure, the Hon’ble Supreme Court, in aforesaid cases, has held that only that court can enquire and try a case where cause of action had arisen. Accordingly, it was submitted that the order of cognizance is fit to be set aside on the ground of lack of jurisdiction itself.

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5. Without going on the question of jurisdiction of the learned Magistrate, the case is being decided on the facts and circumstances of the present case. The reason for not recording any definite opinion on the jurisdiction is that the Hon’ble Supreme Court, in a case reported in 1999(8) SCC 686 (Trisuns Chemical Industry vs. Rajesh Agarwal and others), had examined the question of cognizance taken by a court having no territorial jurisdiction. The Hon’ble Supreme Court, in Trisuns Chemical’s case (Supra), had minutely examined Section 190 of the Code of Criminal Procedure, which is the provision relating to taking cognizance as well as entire provisions in Chapter-XIV of the Code of Criminal Procedure. The Hon’ble Supreme Court, in the said case, had also examined Sections 177 and 178 of the Code of Criminal Procedure and thereafter, it was held that on the ground of territorial jurisdiction, order of cognizance cannot be set aside. I can not do better than to quote few paragraphs of the judgment in Trisuns Chemical’s case (Supra). Paragraphs 11, 12, 13 and 14 are sufficient to answer the question, which are as follows :

“11. It is an erroneous view that the Magistrate taking cognizance of an offence must necessarily have territorial jurisdiction to try the case as well. Chapter XIII of the Code relates to jurisdiction of the criminal courts “in enquiries and trials”.

That      chapter        contains       provisions

regarding the place where the

enquiry and trial are to take

place. Section 177 says that :

"177.           Every             offence           shall

ordinarily be enquired into and

tried by a court within whose

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local jurisdiction it was

committed.”

But Section 179 says that when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the place of enquiry and trial can as well be in a court “within whose local jurisdiction such thing has been done or such consequence has ensued”. It cannot be overlooked that the said provisions do not trammel the powers of any court to take cognizance of the offence. The power of the court to take cognizance of the offence is laid in Section 190 of the Code. Sub-

sections (1) and (2) read thus:

"190.(1)                  Subject            to       the

provisions of this chapter, any

Magistrate of the First Class, and any Magistrate of the Second Class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

© upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial magistrate may empower any Magistrate of the Second Class to take cognizance under sub-section (1) of such offences as are within his competence to enquire into or try.”

"12.      Section             193     imposes       a

restriction on the Court of

Session to take cognizance of any offence as a court of original jurisdiction. But “any” Magistrate of the First Class has the power to take cognizance of any offence, no matter that the offence was committed within his jurisdiction or not.”

“13. The only restriction contained in Section 190 is that the power to take cognizance is “subject to the provisions of this chapter”. There are 9 sections in Chapter XIV most of which contain one or other restriction imposed on the power of a First Class Magistrate in taking cognizance of an offence. But none of them incorporates any curtailment on such powers in relation to territorial barrier. In the corresponding provision in the old Code of Criminal Procedure (1898) the commencing words were like these: “Except as hereinafter provided….” Those words are now replaced by “Subject to the provisions of this chapter….” Therefore, when there is nothing in Chapter XIV of the Code to impair the power of a Judicial Magistrate of the First Class taking cognizance of the offence on the strength of any territorial reason it is impermissible to deprive such a Magistrate of the power to take cognizance of an offence – of course, in certain special enactments special provisions are incorporated for restricting the power of taking cognizance of offence falling under such acts. But such provisions are protected by non obstante clauses. Any way that is a different matter.”

14.     The         jurisdictional                 aspect

becomes relevant only when the

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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.”

6. In the present case, Mr. Sadaquat Hussain, learned Senior Counsel appearing on behalf of opposite party no.2, has vehemently opposed the prayer of the petitioners. It was submitted by learned Senior Counsel that whatever objection or plea has been taken by the petitioners can well be addressed before the court where the case is pending. It was submitted that the jurisdiction under Section 482 of the Code of Criminal Procedure is very limited and same is to be exercised in exceptional and rarest of rare cases. Learned Senior Counsel has further submitted that the order passed by Darul-Kaza Emaratsharia has got no legal sanctity and on the ground of such divorce, the prosecution or order ofcognizance in the present case cannot be set aside.

7. Smt. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State has also opposed the prayer of the petitioners and she has taken the same stand, which was taken by Shri Sadaquat Hussain, learned Senior Cousnel appearing on behalf of opposite party no.2.

8. Besides hearing learned counsel for the parties, I have also perused the materials available on record. In the complaint petition itself, the complainant had asserted that she was compelled to live the house of her in-laws on 15.3.1995 and thereafter, there was no reason for not filing a complaint immediately had there been truth in the allegation levelled by the complainant. Moreover, the husband was apprehensive that since the opposite party no.2 was not residing with him, there is possibility that he may be implicated in false case by opposite party no.2 and as such he had filed an informatory petition vide Annexure-3 to the petition. In this case, whether the order of divorce passed by Darul- Kaza Emaratsharia was having legal sanctity or not, but fact remains that order was passed by Darul-Kaza Emaratsharia on 23.4.1997 and immediately thereafter, within few days on 1.5.1997, the opposite party no.2 filed the present complaint making allegations for commission of offences under Sec9tion 498(A)of the Indian Penal Code not only against her husband, but entire family members of her husband. This shows that the complaint was not filed fairly and honestly. The court is of the view that the complaint, in the present case, was filed maliciously and on the ground of malicious prosecution only the order of cognizance is liable to be set aside and as such the order dated 17.7.1999 passed by Sri Raj Kumar Singh, Judicial Magistrate, Ist Class at Samastipur in Complaint Case No.472 of 1997/T.R. No.695 of 2000 is hereby set aside and petition stands allowed.

( Rakesh Kumar,J.) PATNA HIGH COURT Dated 17.8.2010 N.A.F.R./N.H.

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