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Aashish Kumar Mishra @ Aashish … vs State Of U.P. And Another on 18 December, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on 27.11.2019

Delivered on 18.12.2019

Case :- APPLICATION U/S 482 No. – 32379 of 2019

Applicant :- Aashish Kumar Mishra @ Aashish Kumar Fatendra Nath Mishra

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Preet Pal Singh Rathore,Anil Tiwari,Dharmendra Shukla

Counsel for Opposite Party :- G.A.,Indra Kumar Chaturvedi (Senior Adv.), Sanjeev Kumar Srivastava

Hon’ble Om Prakash-VII,J.

1. This application under Section 482 CrPC has been filed with the prayer to quash the charge-sheet, cognizance order dated 8.4.2019 as well as the entire proceedings in Criminal Case No.6683 of 2019, arising out of Case Crime No. 190 of 2016, under Sections 498-A, Section377, Section323, Section504, Section506, Section315, Section511 IPC and 3/4 D.P. Act, Police Station Nizamabad, District Azamgarh pending before the Additional Chief Judicial Magistrate, Azamgarh and further to keep in abeyance the effect and operation of the impugned orders and proceedings of the aforesaid case.

2. Heard S/Shri Anil Tiwari and Preet Pal Singh Rathore, learned counsel appearing for the applicant, Shri I.K. Chaturvedi, learned Senior Counsel assisted by Shri Amar Nath Tiwari, learned counsel for the opposite party no.2 and Shri R.K. Srivastava, learned AGA appearing for the State.

3. It was submitted by the learned counsel for the applicant that cognizance taken in the matter on the charge sheet against the applicant is illegal and without application of judicial mind. Court situated at Azamgarh had no jurisdiction to take cognizance in the matter. Opposite party no.2 never resided at Azamgarh. Though native village of her parents is within territorial jurisdiction of district Azamgarh yet marriage between the parties was took place at Mumbai. She was also residing at her in-laws house situated at Mumbai. Referring to F.I.R. it is submitted that all the incident took place within the territorial jurisdiction of the Court situated at Mumbai. F.I.R. was lodged in the matter at Azamgarh on the basis of false facts. Opposite party no.2 has made contrary statements in different proceedings initiated by her against the applicant. Referring to transfer petition filed before Apex Court, Petition before Mumbai High Court and the proceeding started under the Protection of Women from SectionDomestic Violence Act as well as proceeding under Section 125 CrPC, it was also submitted that in some documents / affidavits she has disclosed that after her desertion from in-laws house she came at the residence of her parents situated at Mumbai at Worli but in some documents she has disclosed that she came at her Maika at Azamgarh. Contrary plea has also been taken in the aforesaid petitions / proceedings regarding place of birth of child. Referring to statements of victim, mother, father, brother, pandit, who got performed the marriage, recorded under Section 161 CrPC, learned counsel for the applicant also submitted that all statements reveal that opposite party no.2 never took shelter after desertion from her in-laws house at her native village at Azamgrah. She has drawn salary from a company / firm situated at Mumbai where she was working and was residing with her parents. She has also filed Income Tax Return at Mumbai. It appears improbable and unbelievable that she was residing at Azamgarh but income tax return was filed at Mumbai. At this juncture, learned counsel for the applicant also referred to passport, voter identity card and other documents annexed with the application and supplementary affidavit and submitted that Court concerned without taking into account the settled legal position straightway took cognizance in the matter. It is lastly submitted that all documents annexed with the application and supplementary affidavit are impeccable and have not been controverted by the opposite party no.2, therefore, they can be relied upon to decide the prayer made in the application, though, same were not part of the case diary. In support of his submissions, learned counsel for the applicant placed reliance on the following case laws :

(i). SectionRupali Devi vs. State of Uttar Pradesh and others, (2019) 5 SCC 384.

(ii). SectionBhagwan Dass and another vs. Kamal Abrol and others, (2005) 11 SCC 66.

(iii). SectionSharad Kumar Pandey vs. Mamta Pandey, 2010 (118) DRJ 625.

(iv). Prashant and another vs. Sau Madhuri and others, Criminal Revision Application No. 146 of 2017, decided on 6.4.2018 by Nagpur Bench, Mumbai High Court.

(v). SectionState of Orissa vs. Debendra Nath Padhi, 2005 (1) SCC 568.

(vi). Rukmini Narvekar vs. Vijaya Satardekar and others, 2008 (14) SCC 1.

(vii). SectionRajiv Thapar and others vs. Madan Lal Kapoor, 2013 (3) SCC 330.

(viii). Amarendu Jyoti and others vs. State of Chhatishgarh and others, 2014 (12) SCC 362.

(ix). SectionManish Ratan and others vs. State of M.P. and another, 2007 (1) SCC 262.

(x). SectionRamesh and others vs. State of T.N., 2005(3) SCC 507.

(xi). SectionY. Abraham Ajith vs. Inspector of Police, Chennai and another, 2004 (8) SC 100.

4. On the other hand, learned Senior Counsel appearing for opposite party no.2 submitted that when threat was extended at Mumbai, victim came at Azamgarh at her native village. Her grandmother and uncle live there and parents also used to come at Azamgarh. Court situated at Azamgarh has jurisdiction to try the case, therefore, cognizance taken in the matter is not illegal or without jurisdiction. Learned Senior Counsel also submitted that applicant had earlier approached this Court by way of a Writ Petition for quashing the F.I.R. but same was refused. It was also submitted that all the pleas taken in this case have already been considered at the time of disposal of aforesaid Writ Petition. One application u/s 482 SectionCrPC moved by the applicant against issuance of non-bailable warrant was also dismissed by this Court.

5. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the case laws cited in the matter.

6. Before proceeding to deal with the submissions raised by the learned counsel for the parties, I find it necessary to quote the law laid down in the relevant cases cited in the matter, which are as under:

7. In Rupali Devi case (supra), Apex Court held as under (paragraph 16 of the said decision):

“16. We, therefore, hold that the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Indian Penal Code.”

8. In Bhagwan Dass case (supra), Apex Court held as under (paragraphs 6,9 and 13 of the said decision):

“6. The word ‘resident’ is in common usage and many definitions were attributed to it in different decisions. Nevertheless, it is difficult to give an exact definition for the term is flexible, elastic and somewhat ambiguous. The meaning of the word ‘ resident’ in itself creates certain doubts. It does not have any technical meaning and no fixed meaning, would be applicable in all the facts and circumstances. It is used in various senses and has received various interpretations by the Courts. Generally, the construction of the term is governed by the connection in which it is used and it is dependent on the context of the subject matter, and the object, the purpose or result designed to be accompanied by its use, and the meaning has to be adduced from the facts and circumstances taken together in each particular case. The word ‘resident’ as defined in Oxford Dictionary is ” to dwell permanently or for considerable time, to have one’s stay or usual abode, to live in or at a particular place”. Similarly, the Webster’s Dictionary has defined it as ” to dwell permanently and for any length of time” and words like dwelling place or abode are held to be synonymous. From the above it can be seen that the term ‘residence’ makes it clear that the word ‘residents’ includes two types which are: 1) a permanent residence and 2) a temporary residence. First type of residence form all the permanent dwelling which means that the person has settled down at a particular place permanently and regularly for some purpose. The second type refers to a situation that the person is not residing at a place forever but residing at a place for a temporary period or not for a considerable length of time. This is also referred to a temporary living in a place. Hence, in one place the word ‘residence’ is interpreted in the strict sense to include only permanent living at a place which may be referred to a domicile and in the second place the word is interpreted flexible sense to show a temporary or tentative residence.”

9. The court has further said in paragraph 13 that it is plain in the context of clause (ii) of Section 9 of the Act, that the word ‘resides’ meant actual place of residence and not a legal or constructive residence. It clearly does not indicate the place of origin. The words residence is flexible and has many shades of meaning but it must take its colour and content from the context in which it appears and it cannot be read in isolation. By this decision another dimension was added to the concept of residence in the form of concept of de facto residence and the concept of de jure residence. The Supreme Court in this case has clearly distinguished between the concept of actual residence or de facto residence and legal residence or de j ure residence. The actual residence means the place where the person is residing actually at a given point of time. On the other hand concept of de jure residence or the legal residence means the place at which the person is residing in law. The latter form of residence may or may not be the actual residence or the place where the person actually stays or reside. A person holding property or land in a particular place or city or having some ancestral roots to the city may be a resident of that particular place in the legal sense, but his actual residence will be the place where he is presently residing and coupled with the fact of animus manedi or an intention to stay for a considerable period. The concept of de facto and de jure residence can also be understood by the following example. If a person suppose has the residency certificate of a place say ‘A’, but actually for his living he stays at the place ‘B’. Then de jure he can be said to be the resident of place ‘A’ but de facto he is the resident of the place ‘B’.”

13. For the aforesaid reasons we are of the view that the High Court has committed an error in construing the term ‘resident of Kangra District’ does not require a person to be a permanent resident of that place and his casual connection to the district would fulfill the necessary mandatory criteria provided in the ad. notice. As the approach of the High Court in deciding the second appeal against the appellant was based on its interpretation of the criterion of residence and as we have taken a different view of the matter, we set aside the judgment and decree passed by the High Court and remand the matter back to the Court for fresh consideration of the appeals in the light of interpretation given by us to the term ‘resident of Kangra’. The appeals are disposed of accordingly with no order as to costs.”

9. In Sharad Kumar Pandey case (supra), a learned Single Judge of Delhi High Court, held as under (paragraphs 10 and 11 of the said decision):

“10. I, therefore, consider that the temporary residence, as envisaged under the Act is such residence where an aggrieved person is compelled to take shelter or compelled to take job or do some business, in view of domestic violence perpetuated on her or she either been turned out of the matrimonial home or has to leave the matrimonial home. This temporary residence does not include residence in a lodge or hostel or an inn or residence at a place only for the purpose of filing a domestic violence case. This temporary residence must also be a continuing residence from the date of acquiring residence till the application under Section 12 is disposed of and it must not be a fleeing residence where a woman comes only for the purpose of contesting the case and otherwise does not reside there.

11. In the present case, the aggrieved person is residing with her sister and has filed the petition under SectionDomestic Violence Act. It cannot be said that her residence with her sister was a fleeing residence or was a temporary residence acquired for lodging the complaint of domestic violence. Her sister‟s house is a place where she has taken shelter and temporarily resides. I, therefore, find that there is no force in this petition. The petition is hereby dismissed with no orders to costs.”

10. In Prashant case (supra), a learned Single Judge of Nagpur Bench, Mumbai High Court in Criminal Revision Application No. 146 of 2017, decided on 6.4.2018, held as under (paragraph 7 of the said judgment):

“7. But these facts, relevant as they are, have been completely ignored by the learned Principal District Judge. The learned Principal District Judge has also not considered the reasons given by the learned Magistrate in the order passed by her. It is the requirement of Section 27 of the D. V. Act that in order to confer territorial jurisdiction upon a Judicial Magistrate, First Class, there has to be at least a temporary residence within the territorial jurisdiction of his Court. The admissions given by non-applicant no. 1 could show that she was all the while residing at Saunsar and coupled with that fact, she has failed to explain as to how and in what manner, she assumed her temporary residence at Nagpur. The learned Principal District Judge, however, reasoned that pursuing of some cases at Nagpur itself amounted to temporary residence at Nagpur, which is fallacious to say the least. Pursuing of some cases from a place cannot be equated with temporary residence at that place. Temporary residence requires residence at a place on continuing basis in pursuit of some activity or want or need which may be economic, educational, financial, cultural, social and the like which comes to an end when the goal or purpose is achieved. The period or such residence would vary depending upon the purpose for which it is taken. But, such residence cannot be a residence created just to confer territorial jurisdiction upon a Magistrate of a place or otherwise, it would be easy for a woman well equipped with resources to go to a far away place, set up a temporary residence there just to file a case and file a case to get the pleasure of seeing husband or person in domestic relationship being put to travails of long travels and high expenses. So, to my mind, in the context of Section 27 of the D. V. Act, temporary residence means a residence set up or acquired in the ordinary course of human affairs and is not a residence set up with an intention to file a case and confer jurisdiction upon the magistrate. This is the meaning, plainly and naturally, conveyed by combined reading of key words used in Section 27 of the D. V. Act, which are “resides or carries on business or is emloyed”.

11. Since during course of arguments, learned counsel for the applicant has confined his arguments only to the extent of territorial jurisdiction of the Court below and no argument was advanced touching the merits of the case, the Court also confines itself to the said arguments.

12. In this matter, as is evident from the record marriage between applicant and opposite party no.2 is not denied. It is also admitted that marriage ceremony took place at Mumbai and after marriage opposite party no.2 started living with her husband at Mumbai. As per the pleadings exchanged between the parties, opposite party no.2 after desertion from her in-laws house, initially started living at Mumbai at her parental house where parents of opposite party no.2 were carrying on business. Income Tax Return, Passport, paper regarding Gas connection, etc. in the name of opposite party no.2 are also related to Mumbai. In the present matter, it has been pleaded that after marriage of brother of opposite party no.2 due to shortage of space at the parental house of opposite party no.2 at Mumbai, she came at Azamgarh at her parental native village. Thus, it flows that residence of opposite party no.2 situated at Worli, Mumbai and the native village of parents of opposite party no.2 situated within the territorial jurisdiction of district Azamgarh both are Maikas of opposite party no.2. It is also evident from the record that grand mother of opposite party no.2 as well as uncle and other family members are residing at native village situated at Azamgarh. Parents of opposite party no.2 used to come at Azamgarh, though they are residing at Mumbai for carrying their business.

13. Now the question is as to whether residence at native village of parents of opposite party no.2 situated at Azamgarh, where she claims to take shelter, is a fleeing residence and Court situated at Azamgarh had no jurisdiction to take cognizance in the matter.

14. Certainly, the Apex Court in Rupali Devi case (supra) has held that Courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives have jurisdiction to entertain a complaint alleging commission of offences under Section 498-A IPC. In the present matter documents annexed by the applicant alongwith application and supplementary affidavit reveal that there is contradiction in the statement of opposite party no.2 regarding place of birth of child and also period of stay at Mumbai and Azamgarh i.e. at her Maikas. It is also evident that she got education at Mumbai and also was working there. Passport and other documents are also related to Mumbai but a clear version is that after desertion from in-laws house at first she took shelter at her Maika situated at Worli, Mumbai and later on she shifted herself at Azamgarh due to shortage of space in her parental house situated at Mumbai. Merely on this basis that some contradictory statement has been made by the victim in divorce petition, proceeding under Section 12 of Protection of Women from SectionDomestic Violence Act and proceeding under Section 125 CrPC, in the facts and circumstances of the case, it cannot be held that stand taken by the opposite party no.2 regarding temporary residence at Azamgarh is false. If the ratio laid down in Rupali Devi case (supra) is taken into consideration, opposite party no.2 took shelter at Azamgarh also. Thus, it cannot be said that Maika of opposite party no.2 situated at Azamgarh is a fleeing residence and she used to come there only for the purpose of contesting the case. It can also not be said that Court situated at Azamgarh had no jurisdiction to take cognizance in the matter as opposite party no.2 was working at Mumbai only for livelihood. If facts and circumstances of the present matter are compared with the submissions raised across the bar in consonance with the law laid down in the case laws relied upon by the learned counsel for the parties, in my opinion, order taking cognizance in the matter by the Court situated at Azamgarh cannot be termed to illegal. The Court situated at Azamgarh has jurisdiction to try the case. Opposite party no.2 took shelter at her Maika situated at Azamgarh. There is no infirmity or illegality in the impugned order warranting interference by this Court. Further, documents said to have been impeccable also do not oust the jurisdiction of Court below.

15. In view of the above discussions, in my view, there is no substance in the submissions made by learned counsel for the applicant. Impugned order does not suffer from infirmity, illegality, perversity or jurisdictional error. The application being devoid of merits is liable to be dismissed and same is accordingly dismissed.

Order date : 18.12.2019

safi

 

 

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