HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Writ Petition No. 7002 of 2012 (M/S)
1. Anil Kumar Shukla, aged about 65 years, son of Sri Gaya Sahai Shukla, resident of 128/95, Y-1 Block, Kidwai Nagar, Police Station Naubasta Kanpur Nagar.
2. Smt. Kamla Shukla, aged about 62 years, wife of Sri Anil Kumar Shukla, resident of 128/95, Y-1 Block, Kidwai Nagar, Police Station Naubasta, Kanpur Nagar.
1. State of U.P. Through Principal Secretary Home, Civil Secretariat, Lucknow.
2. Manoj Kumar Mishra, son of Sri Anand Mohan Mishra resident of House No.13, Darogabagh, Civil Lines, Police Station Kotwali Unnao (complainant)
Petitioner Counsel :- Sri Murli Manohar Srivastava, Sri Shishir Jain
Respondent Counsel :- Govt. Advocate, Firoz Ahmad Khan
Hon’ble Vishnu Chandra Gupta,J.
1. By this petition under Article 226/227 of Constitution of India the proceedings of Criminal Case No. 5 of 2012 (State Vs. Apurva Shukla and ors.) under Sections 498-A, 504, 506 of Indian Penal Code(for Short ‘IPC’) and ¾ Dowry Prohibition Act (for short ‘D.P. Act’) pending before the Court of ACJM-III, Unnao against the petitioners were sought to be quashed on the ground of lack of territorial jurisdiction by Unnao court.
2. The brief facts for deciding the controversy are that on 28.05.2010 an FIR has been lodged by one Manoj Kumar Mishra O.P. No.2. against Apurva Shukla, and his father, Anil Shukla, mother Smt. Kamla Shukla, the wife of his elder brother Neelam Shukla, the uncle Ajay Shukla, and aunt Sunita Shukla under Section 498A, 504, 506 IPC and Section ¾ D.P.Act with the allegations that marriage of Shivani, the daughter of O.P.No.2, was taken place with Apurva Shukla on 24.04.2008 at Kanpur in accordance with Hindu rites. Just after the marriage the accused person (arrayed in the FIR) startted demanding of a good car from Shivani’s parents and started taunting and scolding her for bringing less dowry. She was subject to cruelty and harassment for the same. She was also beaten in her in-laws house at Kanpur. Shivani made a complaint of it to her parents but she was assured by the parents that very soon every thing will be all right. The parents of Shivani also tried to reconcile the matter with the in-laws of Shivani but they did not mend and continue to harass Shivani. On 26th January, 2010 in between 8 to 9 p.m. accused persons extended threat to life and abused Shivani. At the same time she was expelled from the matrimonial house at Kanpur after taking her ornaments and entire stridhan and put her belongings in a box and kept it the same by the accused in their custody. At the time of expulsion they told Shivani, if she comes back without car, she will not be allowed to enter into house and will be done to death by putting her on fire. Shivani anyhow reached to parental house at Unnao and told the entire story to the parents.
3. This FIR was lodged in police station Kotwali, district Unnao. The investigation was started at Unnao. The Investigating Officer was of the opinion that the matter relates to district Kanpur, hence the same may be transferred to Kanpur and submitted a report to Superintendent of Police, Unnao (for short ‘S.P’) on 12.06.2010. While recording the first information report, Crime No. ‘Nil’ was mentioned for the aforesaid reason. However, S.P., Unnao directed the Investigating Officer to ask for the opinion of the victim, as to whether she wants investigation from Unnao or from Kanpur? In pursuance thereof S.I., Jagmohan Sharma, P.S.-Kotwali Unnao recorded the statement of victim to know whether she wants investigation at Unnao? She expressed her willingness to conduct the investigation by Unnao Police and thereafter Case Crime No.4807 of 2010 was allotted to the offence disclosed in the FIR by making entry in the GD on 01.08.2010. The investigation was carried out and after completing the investigation, charge sheet was filed before Additional Chief Judicial Magistrate, Unnao against accused persons. The Court of ACJM, Unnao proceeded with the trial after taking cognizance. Accused person during pendency of proceeding before Unnao court moved an application on 12.08.2011 (125-C) challenging the jurisdiction of the court on the ground that entire cause of action arose at Kidwai-Nagar, Kanpur, hence court at Unnao has no territorial jurisdiction. The learned Magistrate vide order dated 23.05.2012 (Anneuxre-1 to this petition) held that jurisdiction of the court would be determined on the basis of permanent residence of husband, or where husband and wife reside together. However, the court finds that the wife is permanent resident of Unnao so court at Unnao has territorial jurisdiction and rejected the application.
4. Aggrieved by the aforesaid order the petitioners filed criminal revision bearing No. 66 of 2012 before the court of sessions. Additional Sessions Judge, Court No. 3, Unnao dismissed the revision vide order dated 20.10.2012 (Annexure-2 to writ Petition) in view of judgment rendered by Apex Court in Sunita Kumari Kashyap Vs. State of Bihar, 2011(2) ACR 1611 SC, and Dipali Joshi Vs State of U.P. And ors, 2009 (1) JIC 600 (All) and also keeping in view the provisions of Sections 178 and 179 Cr.P.C after observing that the offence under Section 498A IPC is continuing offence. Therefore, the trial of such offence may be conduced where the act of cruelty was done or where the consequence of that act ensues and constitutes an offence. The Revisional Court further observed that from the allegations made against accused it is clear that on account of torture and cruelty cause to Shivani, she left her in-laws house at Kanpur and came to Unnao, therefore, court at Unnao has jurisdiction to try the case.
5. After getting no relief from Revisional Court petitioners approached this Court through this petition under Article 226/227 Constitution of India. The State did not file any counter affidavit nor respondent No.2 preferred to file any counter affidavit and advanced oral arguments only.
6. I have heard Sri Shishir Jain, learned counsel for the petitioners, Sri Firoz Ahmad Khan counsel for respondent No.2 and learned AGA.
7. Relying upon the judgment in Y. Abraham Ajith and Ors. Vs Inspector of Police, Chennai and Ors. (2004 SCC (Crl) 2134 the learned counsel for the petitioners has submitted that in the above case the Hon’ble Supreme Court has held that offence under Section 498A I.P.C. is not a continuing offence. The relevant paragraphs No.11,14 1nd 19 of the aforesaid judgment are reproduced herein-below:-
11. A similar plea relating to continuance of the offence was examined by this Court in Sujata Mukherjee (Smt.) v. Prashant Kumar Mukherjee (1997 (5) SCC 30). There the allegations related to commission of alleged offences punishable under Section 498A, 506 and 323 IPC. On the factual background, it was noted that though the dowry demands were made earlier the husband of the complainant went to the place where complainant was residing and had assaulted her. This Court held in that factual background that clause (c) of Section 178 was attracted. But in the present case the factual position is different and the complainant herself left the house of the husband on 15.4.1997 on account of alleged dowry demands by the husband and his relations. There is thereafter not even a whisper of allegations about any demand of dowry or commission of any act constituting an offence much less at Chennai. That being so, the logic of Section 178 (c) of the Code relating to continuance of the offences cannot be applied.
14. It is settled law that cause of action consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise.
19. When the aforesaid legal principles are applied, to the factual scenario disclosed by the complainant in the complaint petition, the inevitable conclusion is that no part of cause of action arose in Chennai and, therefore, the concerned magistrate had no jurisdiction to deal with the matter. The proceedings are quashed. The complaint be returned to respondent No.2 who, if she so chooses, may file the same in the appropriate Court to be dealt with in accordance with law. The appeal is accordingly allowed.
8. The learned counsel for the petitioners in support of his contention also relied upon the judgment of Dr. (Mrs.) Sarojini Arawattigi & Anr. Vs. State of U.P. 2008 Crl.L.J. 125 Allahabad. The relevant paragraphs No.11 and 12 of the aforesaid judgment are reproduced hereinbelow:-
11. Contention was also raised that the applicants had been harassed by the opposite party and dowry was demanded while she was at Pune and Miraj but the offence under Section 498-A, IPC is not a continuing offence and if for arguments sake it is found that any dowry demand was made or any harassment was perpetrated on the opposite party at that place still the Court at Kanpur has no jurisdiction to proceed in the matter as it cannot be treated to be a continuing offence.
12. In the case of Y.Abraham Ajeeth and others Vs. Inspector of Police, Chennai and another, (2004) 8 SCC 100: (AIR 2004 SC 4286) it has been held by the Hon’ble Apex court that the offence under Section 498-A, IPC is not a continuing offence. This legal position has been reiterated in a recent case of Manish Ranjan and Others Vs. State of M.P. And another (2007) 1 SCC 262 by the Hon’ble Apex court. Therefore, I come to the conclusion that in any case Court at Kanpur has no jurisdiction in the matter and the learned Trial Court has passed the summoning order without any jurisdiction and the same is liable to be set aside.
9. It has been contended by learned counsel for the petitioners that no part of cause of action arose at Unnao as is evident from the allegations made in FIR and the material collected during investigation and available in case diary. The offence under Section 498A IPC is not continuing offence, hence the courts at Unnao has no territorial jurisdiction to try the case. Consequently, the proceedings pending at Unnao are liable to be quashed.
10. Learned counsel appearing on behalf of the O.P.No.2 vehemently argued that offence under Section 498A IPC is a continuing offence as held by Hon’ble Supreme Court in its latest judgment in Sunita Kumari Kashyap Vs State of Bihar and Ors , 2011 (11) SCC 301.
11. I have gone through the judgment cited at bar. The case of Y. Abraham Ajith (supra) was considered in Sunita Kumari’s Case (Supra) and in view of the factual matrix of the case in Sunita Kumari Kashyap’s case (supra) the court held that the offence was also committed at Gaya where the husband came and maltreated the victim.
12. There is no conflict in between the ratio of two decisions of the Apex Court propounded in Y. Abraham Ajith’s case (supra) and in Sunita Kumari Kashyap’s case (supra). The law which has been propounded by the Apex Court should be tested on touch-stone of facts of the each case. In Y. Abraham Ajith’s case (supra) it has not been held that offence under Section 498A is not a continuing offence but it was observed that in view of the fact of case no part of cause of action was arose at Chennai, therefore, the logic of Section 178(c) of Cr.P.C. relating to continuing offence cannot be applied.
13. Before applying the law laid down by the Apex Court it would be necessary to look into the statutory provision which are reproduced hereinbelow:-
Section 177- Ordinary place of inquiry and tiral.-Every offence shall ordinarily be inquired into and tired 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 party in another, or
(c) Where an offence is a continuing one, and continues to be committed in more local area has one, or
(d) Where it consists of several acts done in different local areas, It may be inquired to 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, due to 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.
Section 182. Offences committed by letters, etc.- (1) Any offence which includes cheating may, if the deception is practiced by means of letters or telecommunication messages, be inquired into or tried by any Court within whose local jurisdiction such letters or messages were sent or were received; and any offence of cheating and dishonestly inducing delivery of property may be inquired into or tried by a Court within whose local jurisdiction the proeprty was delviered by the person deceived or was received by the accused person.
(2) Any offence punishable under Section 495 or Section 494 of the India Penal Code (45 of 1860) may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage [, or the wife by first marriage has taken up permanent residence after the commission of offence].
14. Section 472 Cr.P.C. provides that in case of a continuing offence, a fresh period of limitation begins to run at every moment of the time period during which the offence continues. The expression, ”continuing offence’ has not been defined in the Cr.P.C. because it is one of those expressions which does not have a fixed connotation, and therefore, the formula of universal application cannot be formulated in this respect.
15. In Balakrishna Savalram Pujari Waghmare & Ors. v. Shree Dnyaneshwar Maharaj Sansthan & Ors., AIR 1959 SC 798, the Apex Court dealt with the aforementioned issue, and observed that a continuing offence is an act which creates a continuing source of injury, and renders the doer of the act responsible and liable for the continuation of the said injury. In case a wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the said act may continue. If the wrongful act is of such character that the injury caused by it itself continues, then the said act constitutes a continuing wrong. The distinction between the two wrongs therefore depends, upon the effect of the injury. In the said case, the court dealt with a case of a wrongful act of forcible ouster, and held that the resulting injury caused, was complete at the date of the ouster itself, and therefore there was no scope for the application of Section 23 of the Limitation Act in relation to the said case.
16. In Gokak Patel Volkart Ltd. v. Dundayya Gurushiddaiah Hiremath & Ors., (1991) 2 SCC 141, Hon’ble Supreme Court dealt with the issue and held as under:
“According to the Blacks’ Law Dictionary, Fifth Edition, ‘Continuing’ means ”enduring; not terminated by a single act or fact; subsisting for a definite period or intended to cover or apply to successive similar obligations or occurrences.’ Continuing offence means ”type of crime which is committed over a span of time.’ As to period of statute of limitation in a continuing offence, the last act of the offence controls for commencement of the period. ”A continuing offence, such that only the last act thereof within the period of the statute of limitations need be alleged in the indictment or information, is one which may consist of separate acts or a course of conduct but which arises from that singleness of thought, purpose or action which may be deemed a single impulse.’ So also a ‘Continuous Crime’ means “one consisting of a continuous series of acts, which endures after the period of consummation, as, the offence of carrying concealed weapons. In the case of instantaneous crimes, the statute of limitation begins to run with the consummation, while in the case of continuous crimes it only begins with the cessation of the criminal conduct or act.”
17. While deciding the case in Gokak Patel Volkart Ltd. (Supra), Hon’ble Supreme Court placed reliance upon its earlier judgment in State of Bihar v. Deokaran Nenshi & Anr., AIR 1973 SC 908, wherein the court while dealing with the case of continuance of an offence has held as under:
“A continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It is one of those offences which arises out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.”
18. Similar view has been expressed by Hon’ble Supreme Court in Bhagirath Kanoria & Ors. v. State of M.P., AIR 1984 SC 1688; and Amrit Lal Chum v. Devoprasad Dutta Roy, AIR 1988 SC 733).
19. In M/s. Raymond Limited & Anr., Etc. Etc. v. Madhya Pradesh Electricity Board & Ors., Etc. Etc., AIR 2001 SC 238, Hon’ble Supreme Court held as under:
“It cannot legitimately be contended that the word “continuously” has one definite meaning only to convey uninterrupted ness in time sequence or essence and on the other hand the very word would also mean ‘recurring at repeated intervals so as to be of repeated occurrence’. That apart, used as an adjective it draws colour from the context too.”
20. In Sankar Dastidar v. Smt. Banjula Dastidar & Anr., AIR 2007 SC 514, Hon’ble Supreme Court observed as under:
“A suit for damages, in our opinion, stands on a different footing vis–vis a continuous wrong in respect of enjoyment of one’s right in a property. When a right of way is claimed whether public or private over a certain land over which the tort-teaser has no right of possession, the breaches would be continuing one. It is, however, indisputable that unless the wrong is a continuing one, period of limitation does not stop running. Once the period begins to run, it does not stop except where the provisions of Section 22 of the Limitation Act would apply.”
The Apex Court further held:
“Articles 68, 69 and 91 of the Limitation Act govern suits in respect of movable property. For specific movable property lost or acquired by theft, or dishonest misappropriation or conversion; knowledge as regards possession of the party shall be the starting point of limitation in terms of Article 68. For any other specific movable property, the time from which the period begins to run would be when the property is wrongfully taken, in terms of Article 69. Article 91 provides for a period of limitation in respect of a suit for compensation for wrongfully taking or injuring or wrongfully detaining any other specific movable property. The time from which the period begins to run would be when the property is wrongfully taken or injured or when the detainer’s possession becomes unlawful.”
21. Thus, in view of the above, the law on the issue can be summarised to the effect that, in the case of a continuing offence, the ingredients of the offence continue, i.e., endure even after the period of consummation, whereas in an instantaneous offence, the offence takes place once and for all i.e. when the same actually takes place. In such cases, there is no continuing offence, even though the damage resulting from the injury may itself continue.
22. In the light of aforesaid legal position, the facts of this case to be scanned.
23. According to allegation made in FIR and also material collected during investigation, the cruelty was caused to the daughter of O.P. No.2 Shivani at her matrimonial house at Kanpur. The belongings and Stirdhan of Shivani was taken by accused/ petitioners in her matrimonial house at Kanpur. After expulsion she was compelled to leave the matrimonial home on 26.1.2010 due to alleged demand of dowry, cruelty and harassment by her husband and his relatives at Kanpur. There is no whisper in FIR or any material collected during investigation about any demand of dowry or commission of any act of cruelty or any other offence at Unnao after 26.01.2010. So benefit of judgment of Hon’ble Supreme Court in Sunita Kumari Kashyap (supra) or Dipati Joshi (supra) could not be extended, because continuity of chain of acts constituting offence under Section 498A IPC or any other offence comes to an end on 26.01.2010 when she was expelled from her matrimonial home at Kanpur. There is no allegation that husband or his relatives ever came to Unnao after 26.01.2010. This is not the case of prosecution that accused/revisionists made any demand of dowry or committed any offence by sending any letter or telecommunication or massage through mobile phone etc. at Unnao. Hence law relating to continuing offence cannot be applied in this case.
24. Concept of continuity of offence in Sunita Kumari Kashyap case (supra) was adopted for the reason that husband come from Ranchi with his wife to Gaya and left her at Gaya. Thereafter husband raised a new demand that unless the house at Gaya is given to him by father-in-law she will not be taken back to her matrimonial home at Ranchi. For the reasons mentioned above the case of Sunita Kumari Kashyap’s case (supra) could not be applied in the case in hand.
25. After applying the aforesaid legal principles, the irresistible conclusion would be that no part of cause of action arose at Unnao. Therefore, the courts at Unnao would have no jurisdiction to deal with the matter. Consequently all the proceedings initiated in pursuance of charge sheet filed by Unnao police are without jurisdiction. The cognizance taken by court at Unnao for the offences mentioned above are suffering from incurable illegality. All the orders passes after taking cognizance by courts at Unnao would also fall on ground.
26. Consequently, this petition is allowed. The order dated 23.05.2011 (Annexure-1 to writ petition) passed by ACJM-III, Unnao in criminal case No.5 of 2012 along with order 20.10.2012 (Annexure-2 to writ petition) passed in Criminal Revision No.66 of 2012 affirming the order dated 23.05.2011 and the proceedings pending of Criminal Case No.5 of 2012, State Vs Apurva Shukla and others, under section 498-A, 504,506 IPC and section ¾ of D.P. Act before the court of ACJM-III, Unnao, against the petitioners are quashed with liberty to the O.P. No.2 or victim Shivani or police of Unnao to file case, if so desire, in competent court of law to get it decided in accordance with law.
Order date:- 20th Feb, 2013 (Justice Vishnu Chandra Gupta, J.)