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Whether police station officer can refuse to investigate an offence u/s 498A of IPC on the ground of territorial jurisdiction?

 Bombay High Court

JUSTICE Pushpa V. Ganediwala, JUSTICE M. S. Sonak

Ketkee w/o Bharat Pathak

Vs.

State of Maharashtra Ors.

CRIMINAL WRIT PETITION NO. 658 OF 2021

25th November 2021

Author: M. S. SONAK, J.

Citation: 2021 NearLaw (BombayHC Nagpur) Online 2278

1. Heard the learned counsel for the parties.

2. Rule. The Rule is made returnable forthwith at the request of and with the consent of the learned counsel for the parties.

3. By instituting this petition, the petitioner challenges the action of respondent no.1 transferring FIR No.0137 dated 5.2.2021 registered at Ram Nagar Police Station, Chandrapur to Chaturshrungi Police Station, Pune, on the mistaken notion that the Police Station Authorities at Chandrapur had no jurisdiction to investigate into the offenses alleged by the petitioner against her husband and his relatives under Sections 377, 498-A, 504, 506 r/w 34 of the Indian Penal Code.

4. The petitioner, on 5.2.2021, lodged the FIR No.0137/2021 in the Ram Nagar Police Station at Chandrapur pointing out that she was married in Chandrapur on 30.6.2018 to Bharat Pathak. The complaint alleges that at the time of the marriage, the petitioner’s father gifted various items, including gold and silver along with cash of Rs.1,00,000/- to said Bharat, as demanded by him and his relatives. Further, the entire expenses of the marriage were also borne by the petitioner’s father. The complaint then alleges that after the petitioner started living with Bharat in the matrimonial home, the said Bharat, his parents, and sisters began blaming her for not bringing enough dowry and also started torturing the petitioner daily. The complaint alleges that Bharat made incessant demands that the petitioner brings more money from her father so that Bharat could purchase a plot at Pune.

5. The complaint also alleges that Bharat used to regularly beat the petitioner and even threatened to kill her. The complaint also alleges that Bharat used to return home late at night, show the petitioner pornography videos, physically assault the petitioner, and used to have unnatural sex, thereby physically and mentally torturing her regularly. The complaint also alleges that Bharat would always state that he does not fear anybody since he has, has contacts everywhere.

6. The complaint then sets out that the petitioner became pregnant, but the harassment and torture by said Bharat and his relatives continued. The petitioner was forced to undertake heavy duties in the matrimonial home, which induced a miscarriage. The Doctor advised her to take complete rest to save the fetus in the seventh month of the pregnancy. The petitioner came to her parental home in Chandrapur and delivered a daughter on 7.12.2018. The complaint alleges that after the birth of the daughter, Bharat visited the petitioner at her parental home in Chandrapur and was angry because he wanted a son and not a daughter. The complaint alleges that Bharat fought with the petitioner and his parents and refused to take the petitioner and their daughter back to the matrimonial home in Pune.

7. The complaint then alleges that after three months from the birth of the daughter, the petitioner, her mother and sister went to Pune along with the daughter at their matrimonial home. The petitioner alleges that when they reached Pune, the in-laws of the petitioner barred them from entering, insulted them, and forced them to leave along with the child. The father-in-law of the petitioner even tried to hit the petitioner with a stool. Bharat also threatened to kill the petitioner, if she did not leave with her daughter immediately.

8. The complaint alleges that on 1.3.2019, the petitioner lodged a complaint at Chaturshrungi Police Station at Pune against Bharat and his relatives. The complaint further alleges that after this incident as well, the petitioner returned to the matrimonial home as she was pursuing a post-graduate degree course in Pune and had to pay the course fees and attend the classes. After living there for barely a month, the complaint alleges that Bharat refused to pay the fees and asked the petitioner to return to her parental home and bring money. After some days, the petitioner’s father again accompanied her and dropped her at the matrimonial home at Pune.

9. The complaint alleges that once again Bharat fought with the petitioner and her father. After persuasion by the petitioner’s father, the petitioner stayed in the matrimonial home, but within a month, Bharat and her family members started mistreating the petitioner. During Ganesh Chaturthi, the petitioner’s father-in-law and one of the sisters-in-law snatched the Mangalsutra from her neck and Bharat even beat her. The infant child was locked in a room. The complaint alleges that the petitioner was very scared and had to seek police intervention to restore the child to her.

10. The complaint then refers to various acts of harassment, physical and mental torture to the petitioner and the infant child. The complaint then alleges that, as a result of all this, the petitioner and her infant child were forced to return to the parental home at Chandrapur. This is when the petitioner filed her FIR at Ram Nagar Police Station in Chandrapur on 5.2.2021.

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11. The petitioner has, in paragraph 10 of the petition, averred that the Officer In-charge at Ram Nagar Police Station in Chandrapur forced the petitioner to have the investigation of the FIR transferred to Pune, despite resistance from the petitioner. No return has been filed to contradict the said averment. In any case, we are satisfied that the Police Station at Chandrapur had ample jurisdiction to not only register the petitioner’s FIR but also investigate into the same, rather than transferring the investigation to Pune.

12. Mr. Doifode, learned Additional Public Prosecutor for the respondents-State, submitted that all the allegations in the complaint relate to the incidents that have taken place at Pune and therefore, having regard to provisions of Sections 177 to 183 of the Code of Criminal Procedure, there was nothing wrong in transferring the investigation to Pune. He relied on the decision of the learned Single Judge in Saurabh s/o Shivhar Velukar. vs. State of Maharashtra, LawSuit (Bom) 651 and the decision of the Division Bench in Vishal Philip Gaikwad and others. vs. The State of Maharashtra and another, 2018 ALL MR (Cri) 2125, in support of his submission.

13. Per contra, Ms. Meghe, learned counsel for the petitioner, submitted that this is a case of a continuing offense. She submitted that part of the transaction constituting the offense has taken place at Chandrapur and in any case, the consequences of the acts alleged have been severely felt at Chandrapur. Ms. Meghe relied on Sunita Kumari Kashyap. vs. State of Bihar and another, AIR 2011 SC 1674 and Rupali Devi. vs. State of Uttar Pradesh and others, (2019) 5 SCC 384, to submit that the Police Station at Chandrapur had the jurisdiction to investigate into petitioner’s FIR and the action of transferring the investigation to Pune was contrary to law and in any case, totally unjustified.

14. We have considered the rival contentions and we think that there is merit in the contentions of Ms. Meghe that the police authorities at Chandrapur were not justified in transferring the investigation to Pune on the mistaken notion that they lacked the jurisdiction to investigate into the allegations made by the petitioner in her complaint/FIR.

15. In the complaint, there are allegations about the offenses being committed both at Pune as well as Chandrapur. From the nature of the allegations that we have already referred to earlier, it is apparent that the petitioner has alleged the involvement of her husband and his relatives in what may be described as continuing offense. Besides, even if we accepted Mr. Doifode’s contentions that allegations of harassment and cruelty meted out to the petitioner mainly relate to the acts that are alleged to have taken place in the matrimonial home at Pune, it is quite apparent that as a result of such acts, the petitioner and her minor daughter were forced to leave the matrimonial home at Pune and come to reside at her parental home at Chandrapur. This means that the consequences of the acts in the matrimonial home at Pune, which themselves constitute an offense, have ensued or been severely felt at Chandrapur. All these are good and substantial grounds to hold that the Police Station at Chandrapur had not only the jurisdiction but also the duty to investigate the allegations made by the petitioner in her FIR/Complaint.

16. Section 177 of the Code of Criminal Procedure, provides that every offense shall ‘ordinarily’ be inquired into and tried by a Court within whose local jurisdiction it was committed. The expression ‘ordinarily’ be employed in Section 177 of the Code of Criminal Procedure, is with a purpose and the same cannot be simply ignored. This expression is an indication of the legislative intent against inflexibility in such matters.

17. Section 178 of the Code of Criminal Procedure, provides that when it is uncertain in which of several local areas an offense was committed, or where an offense is committed partly in one local area and partly in another, or where an offense is a continuing one and continues to be committed in more local areas than one, or 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.

18. Section 179 of the Code of Criminal Procedure, provides that when an act is an offense by reason of anything which has been done and of a consequence which has ensued, the offense may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.

19. Having regard to the aforesaid clear provisions in the Code and since we are quite satisfied that this is a case where the offense was committed partly at Pune and partly at Chandrapur and further this is a case of a continuing offense that continues to be committed even in Chandrapur, the police authorities at Chandrapur have the jurisdiction to investigate into the same and the police authorities at Chandrapur were not justified in transferring the investigation to Pune.

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20. In Sunita Kumari Kashyap (s), the complainant-wife, in her complaint filed before the Court at Gaya where she was staying in her parental home, made specific assertions about the ill-treatment and cruelty at the hands of her husband and his relatives at Ranchi. She alleged that it is on account of such acts of ill-treatment and cruelty that she was forced to leave her matrimonial home at Ranchi and live in her parental home at Gaya. The Hon’ble Supreme Court, after considering the provisions of Sections 178 and 179 of the Code of Criminal Procedure, held that the offense alleged was a continuing one having been committed in more local areas than one. Since one of the local areas was Gaya, Court at Gaya had jurisdiction to proceed with the criminal case instituted therein. In other words, the offense was a continuing one and since the episode at Gaya was only a consequence of continuing offense of harassment and ill-treatment meted out to the complainant, clause (c) of Section 178, Cr.P.C. was attracted. The Hon’ble Supreme Court set aside the order of the High Court by quashing the proceeding in the Court of SDJM, Gaya, and restored the proceeding before the SDJM Gaya for a decision in accord with the law.

21. According to us, the decision of the Hon’ble Supreme Court in Sunita Kumari Kashyap (s) applies on all fours to the facts of the present case. Based upon the same, we are unable to accept the contentions of Mr. Doifode or the reasoning, if at all of the police authorities at Chandrapur in transferring the investigation to Pune.

22. In Rupali Devi (supra), the issue before the Hon’ble Supreme Court was, “whether a woman forced to leave her matrimonial home on account of acts and conduct that constitute cruelty can initiate and access the legal process within the jurisdiction of the courts where she is forced to take shelter with her parents or other family members.?”. The Hon’ble Supreme Court noted that since there was a cleavage of opinion on this issue, the same was taken up for consideration on a reference made to the larger Bench. The larger Bench of the Hon’ble Supreme Court, upon analyzing the provisions in Sections 177, 178, and 179 of the Code of Criminal Procedure, held that the courts at the place where the wife takes shelter after leaving or being driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, depending on the factual situation, also have jurisdiction to entertain a complaint alleging commission of an offense under Section 498-A of the Indian Penal Code.

23. In Rupali Devi (supra), the Hon’ble Supreme Court held that Section 178 creates an exception to the ‘ordinarily rule’ engrafted in Section 177 of Cr.P.C. by permitting the courts in other local areas where the offense is partly committed taking cognizance. Also, if the offense committed in one local area continues in another local area, the courts in the latter place would be competent to take cognizance of the matter. Similarly, u/s 179 of the Cr.P.C. if because of the consequences emanating from a criminal act an offense is occasioned in another jurisdiction, the court in that jurisdiction would also be competent to take cognizance.

24. The Hon’ble Supreme Court in the precise context of an offense under Section 498-A of the Indian Penal Code, has held that adverse effects on mental health in the parental home or other places of shelter though on account of acts committed in the matrimonial home would amount to commission of cruelty within the meaning of Section 498-A of the Indian Penal Code at parental home or such other place. The consequences of cruelty committed at matrimonial places result in repeated offenses being committed at parental homes or other such places of shelter. This is the kind of offense contemplated under Section 179 of Cr.P.C. which would squarely apply to a situation where the wife takes shelter in her parental home after leaving or being driven away from matrimonial home on account of acts of cruelty committed by the husband or his relatives.

25. The Hon’ble Supreme Court has held that the impact on the mental health of wife by overt acts on part of the husband or his relatives; mental stress and trauma of being driven away from the matrimonial home and her helplessness to go back to the same home for fear of being ill-treated are aspects that cannot be ignored while understanding the meaning of expression “cruelty” appearing in S. 498-A, IPC. Emotional distress or psychological effect on the wife, if not the physical injury, is bound to continue to traumatize the wife even after she leaves the matrimonial home and takes shelter at the parental home. Even if the acts of physical cruelty committed in the matrimonial house may have ceased and such acts do not occur at the parental home, there can be no doubt that the mental trauma and psychological distress caused by acts of husband including verbal exchanges, if any, that had compelled the wife to leave the matrimonial home and take shelter with her parents would continue to persist at the parental home. Mental cruelty borne out of physical cruelty or abusive and humiliating verbal exchanges would continue in the parental home even though there may not be any overt act of physical cruelty at such place. Even the silence of the wife may have an underlying element of emotional distress and mental agony. Her sufferings at parental home though may be directly attributable to the commission of acts of cruelty by husband at matrimonial home would, undoubtedly, be the consequences of the acts committed at the matrimonial home. Such consequences, by itself, would amount to distinct offenses committed at parental home or other places where she has taken shelter.

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26. According to us, the decision of the larger Bench of the Hon’ble Supreme Court in Rupali Devi (supra) is a complete answer to the issue raised in the present petition and based upon the same, this petition is required to be allowed. But before we do so, we propose to consider whether the decisions relied on by Mr. Doifode ought to affect our proposed conclusion.

27. Saurabh Velukar (supra) was decided by the learned Single Judge of this Court, without reference to the law laid down by the Hon’ble Supreme Court in Sunita Kumari Kashyap (s). Further, the learned Single Judge did not have the benefit of the decision of the larger Bench of the Hon’ble Supreme Court in Rupali Devi (supra). Therefore, based on the said decision, the action of the police authorities at Chandrapur can neither be justified nor approved.

28. Similarly, the decision of the Division Bench in Vishal Gaikwad (supra) firstly proceeds on the basis that the allegations against the relatives of the husband were quite general in nature and made out no offense under Section 498-A of the Indian Penal Code. The Division Bench also held that since the complainant-wife, after her dispute with her husband, was residing with her parents at Pathardi and further since no cause of action arose at Pathardi, the Court at Pathardi had no jurisdiction to deal with the case. The reasoning, on this latter aspect of jurisdiction, appears to conflict with the reasoning in Sunita Kumari Kashyap (supra), possibly because the said decision was not brought to the notice of the Hon’ble Court. Similarly, the Hon’ble Division Bench did not have the benefit of the decision of the larger Bench of the Hon’ble Supreme Court in Rupali Devi (supra). Accordingly, we consider ourselves obliged to follow the law laid down that the Hon’ble Supreme Court in Sunita Kimari Kashyap (supra) and Rupali Devi (supra) and based upon the same, to disapprove the action of police authorities at Chandrapur in declining jurisdiction and transferring the investigation to Pune.

29. Ms. Meghe, learned counsel for the petitioner has also pointed out a Circular dated 1.7.2019 issued by the Police Commissioner, Aurangabad in the context of complaints/FIRs under Section 498-A of the Indian Penal Code against the husband and his relatives. This circular takes cognizance of the decisions of the Hon’ble Supreme Court in Sunita Kumari Kashyap (supra) and Rupali Devi (supra) and directs the concerned Police Stations to accept and investigate the complaints/ FIRs lodged by the wives staying at their parental home etc. Ms. Meghe pointed out that even in terms of this Circular dated 1.7.2019, the action of the respondents in this case warrants interference. The said circular apprises the concerned Police Station with the correct legal position as explained by the Hon’ble Supreme Court in Sunita Kumari Kashyap (supra) and Rupali Devi (supra). The law laid down by the Hon’ble Supreme Court in the said decisions is binding on all concerned and the action of the respondents in the two cases relied on by Mr. Doifode are not consistent with the law laid down by the Hon’ble Supreme Court in the said two decisions.

30. For all the aforesaid reasons, we make the rule absolute in this petition and direct the respondents to recall the action of transferring the investigation in FIR No.0137 dated 5.2.2021 to Pune and to investigate the matter in accord with law and take such other and further steps as are contemplated by law in such matter.

31. The petition stands disposed of accordingly without any order for costs.

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