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In Re: Motahar Hossain-vs-Unknown on 25 January, 1995

Calcutta High Court In Re: Motahar Hossain-vs-Unknown on 25 January, 1995
Equivalent citations:(1995) 1 CALLT 163 HC
Author: R Bhattacharyya
Bench: R Bhattacharyya, N A Chowdhury


Rabin Bhattacharyya, J.

1. The petitioner has filed an application for anticipatory bail on the ground that the offence alleged to have been committed lies beyond the jurisdiction of this Court and the allegation of cruel treatment meted out to his wife is stale. The allegations are all tainted and founded on improbabilities entitling the petitioner to be enlarged on anticipatory bail.

2. The prayer for anticipatory bail has been opposed by the State on the footing that there are prima jade tangible materials against the petitioner disentitling him to an anticipatory bail.

3. The petitioner to invigorate his claim for anticipatory bail has made twin submissions. The first of such submissions is that the complaint is not maintainable, as it is struck by the extra territoriality, as the offence complained of did not see the light of the day, at Birbhum but at Dhanbad. The extraterritoriality of the offence knocks out the bold plea of the torture and ill-treatment. The complaint, according to him, is not viable in law. It has been debated at the bar that the Court is denuded of jurisdiction to adjudicate upon a claim dwelling on an offence that took place foreign to the place of marital residence of the aggrieved.

4. To answer the claim, we can only say, if we were to accept the tall claim of the petitioner that there could not be any slender scope for Section 498A I.P.C. 1860 to dominate the field. The reasonable apprehension which is the sine qua non for relief in the temple of Section 438 Cr. P.C., apprehending arrest, becomes the vanishing point of anticipatory bail for extraterritoriality of the offence through the back door. The problem, if approached from another angle, we are of the opinion that the concept of “last resided together” cannot be treated as the yard-stick for determination of jurisdiction of an offence, as envisaged under Section 498A I.P.C. and, therefore, it cannot animate the claim of the petitioner to anticipatory bail.

5. Take a concrete example that one (A) the husband if drives out his wife (B) from marital home, is the victim of assault or ill-treatment to remain within the jurisdiction of that district to enforce her relief ? This proposition can never be a taboo for relief within the realm of Section 438 Cr. P.C. 1973.

6. We are not oblivious that offence under Section 498A of the I.P.C. is a continuing offence which does not, in our view, abate for the change of place of marital residence nor does the offence lapse for the lapse of time. The persistent cruel treatment of the husband, as filtered through the C.D. poses an insuperable obstacle for the petitioner to snatch an order of anticipatory bail for the hostile facts.

7. It is needless to say that the Section 438 of the Cr. P.C. does not recognise any relief for anticipatory bail, in particular, when the allegations are not basically harassing and suffer from falsehoods. It has been sounded by the superior Court that the prayer for anticipatory bail must be considered objectively, failing which, the exercise of jurisdiction offends the principle of law. Thus, by the length of time, the allegations never loose their sting nor they pale into insignificance.

In the light of the aforesaid reasonings, we reject the prayer for anticipatory bail.

N.A. Chowdhury, J.

8. I agree.

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