IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.579 of 2018
Arising Out of PS. Case No.-13 Year-2013 Thana- MAHILA PS District- Jehanabad
Kumar Gaurav Son of Late Anil Kumar, Resident of Village- Karhari Mathia,
P.S.- Parasbigha, District- Jehanabad.
… … Petitioner/s
Versus
The State Of Bihar
… … Opposite Party/s
Appearance :
For the Petitioner/s : Mr.Aditya Narayan Singh-1, Advocate
For the Opposite Party/s : Mr.Anjani Kumar, Sr. Advocate AAG-4
Mr. Amit Kumar Jha, AC to AAG-4
Md. Iftekhar Mahmood, APP
CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR
CAV JUDGMENT
Date : 10-12-2019
Heard Mr. Aditya Narayan Singh-I, Advocate, for
the petitioner and Mr. Anjani Kumar, learned Additional
Advocate General No.4, for the State.
2. Petitioner is accused in connection with
Jehanabad Mahila P.S. Case No.13 of 2013, corresponding to
Sessions Trial No.56 of 2016. The petitioner has challenged, in
this application under Section 482 Cr.P.C., order dated
15.11.2017 passed in the aforesaid Sessions Trial whereby
learned trial Judge has refused to discharge the petitioner under
Section 227 Cr.P.C. It is worth to mention that cognizance has
been taken against the petitioner and others for offences under
Sections 304B and Section120B of the Indian Penal Code and Section 4
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of the SectionDowry Prohibition Act by order dated 08.02.2013 and the
order of cognizance has attained finality.
3. According to FIR, the petitioner is husband of
the victim Mamta Kumari. Mother of Mamta Kumari initially
filed Complaint Case No.482 of 2012 in the Court of learned
Chief Judicial Magistrate, Jehanabad, which was registered as
an FIR on the order of the Magistrate passed under Section
156(3) Cr.P.C. According to complaint petition the victim was
married with this petitioner on 11th March, 2011 in the village of
complainant, namely, Lakhawar, P.S. Ghoshi, Distt- Jehanabad.
After marriage the victim went to her matrimonial house in
village Karhari Mathiya P.S. Parasbigha, District- Jehanabad.
Allegation is that the petitioner and father of the petitioner were
insisting for four lacs as further dowry. The husband of the
informant as well as the informant tried to pacify them pleading
that they have already taken loan at the time of marriage.
Hence, they would consider in future about the demand.
However, the accused persons continued torturing the victim
mentally and physically. The victim used to inform her parent
including the complainant on mobile talk. It is stated that the
petitioner was posted in the Air-force at Pathankot and he took
the deceased to Pathankot. At Pathankot also the torture
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continued resulting in aggravated tension to the deceased which
was complained by the deceased to her family members. On
12th April, 2012 the petitioner asked on phone to Mritunjay
Kumar son of the informant, who was working at Bhubneshwar
in Orissa, to come to Pathankot as the victim was seriously ill.
When Mritunjay reached there he found dead body of the
victim and the people along with the petitioner, 20-25 in number
pressurized to Mritunjay Kumar to sign on papers and thereafter
the dead body was cremated.
4. After investigation of the case the police
submitted final form as mistake of fact. It is worth to mention
that an UD case was registered at Pathankot and the police of
Jehanabad received the inquiry report of UD case, post mortem
report of the victim etc. from Pathankot Police. The post
mortem report revealed that the cause of death was asphyxia due
to anti mortem hanging. The police further got information that
the petitioner had brought his wife to Pathankot on 11.11.2011
and had kept her in his family quarter. On 12.11.2012 when the
petitioner returned from duty at 2:30 PM he found that room of
his residence was locked from inside. When the door was
broken the victim was found hanging with the ceiling fan.
5. Thus the following facts emerges from the
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record; (i) That the victim died in unnatural circumstances
within a year of her marriage in the house of this petitioner. (ii)
There is allegation of demand of more dowry and torture for
non-payment of the same just after few days of marriage till
before death of the victim at Pathankot.
6. The impugned order reveals that the Magistrate
found sufficient material in the case-diary to disagree with the
police report for taking cognizance and the order of cognizance
got finality as it was not challenged anywhere. The impugned
order further reveals that there was sufficient material in the
case-diary to ask the petitioner to face trial.
7. Learned counsel for the petitioner submits that
since the actual occurrence took place at Pathankot and there is
no other material to substantiate demand of dowry and torture
for the same before the death except the bald statement of the
family members made only after death of the victim no case
cognizable by the Court at Jehanabad is made out. Learned
counsel submits that since no part of the occurrence took place
within the territorial jurisdiction of Jehanabad Court, hence, the
cognizance as well as subsequent proceeding including
impugned order is without jurisdiction. His next contention is
that the complaint petition was filed after two months delay
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suppressing the result of inquiry of UD case by the Pathankot
police and making a false statement that signature of the son of
the informant was taken on papers under pressure. Though it
was a case of suicidal death, however, with oblique motive the
informant has filed the criminal prosecution which should not
be allowed in the ends of justice. Son of the complainant never
made any complaint to the Panjab Police that his signature was
forcefully taken. Learned counsel has placed reliance on
judgment of this Court dated 26.08.2019 passed in Cr. Misc.
No.42980 of 2016 wherein order of cognizance was quashed by
this Court.
8. Learned Senior Counsel Mr. Anjani Kumar
submits that so far territorial jurisdiction of the Court at
Jehanabad is concerned, this case comes under exception to the
general rule contained in Section 177 Cr.P.C., which provides
that every offence shall ordinarily be inquired and tried by a
Court within whose local jurisdiction it was committed. Learned
counsel has carefully gone through the complaint petition and
submits that the offence of illegal demand and torture was partly
committed within the territorial jurisdiction of Jehanabad Court
and partly committed within the jurisdiction of Court at
Pathankot. Since offence under Section 498A of the Indian
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Penal Code is a continuing offence, hence, the jurisdiction of the
Court would be governed by the provisions of Section 178 and
Section179 Cr.P.C. and both the Courts would have jurisdiction over the
matter. Therefore, the Court at Jehanabad has got the
jurisdiction to try the case. He next submits that the
consideration of the material at the stage of cognizance is the
same as is considered at the stage of charge. There must be
prima facie case disclosing commission of cognizable offence
and if the aforesaid requirement is fulfilled the Court is
competent enough to ask the accused to face the trial.
9. Identical issue and scope of Sections 178 and
Section179 Cr.P.C. was considered by the Hon’ble Supreme Court in
SectionRupali Devi V. State of U.P. reported in (2019) 5 SCC 384 and
it was held that the offence under Section 498A of the Indian
Penal Code is a continuing offence and wherever the victim take
shelter after leaving or driven away from the matrimonial home
on account of acts of cruelty committed by her husband or his
relative, the Court there would have jurisdiction to entertain a
complaint made by the victim.
10. In the present case, unnatural death of the
victim was committed within a year of her marriage which is
admitted fact. There is allegation of demand of dowry and
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torture for the same just after marriage till death. Therefore,
presumption under Section 113B of the Evidence Act would be
in favour of commission of offence and the burden would be at
the accused to be discharged at the defence stage of trial by
evidence as to what are the materials which create doubt on the
prosecution version and the claim of the petitioner that
Pathankot police found a case of suicide and the brother of the
deceased did not make any complaint at Pathankot would be
looked into only at the stage of the trial and not at the initial
stage of framing of the charges.
11. Though neither cognizance has been taken nor
charges have been framed, the averments made in the FIR and
statement of the witnesses before the police makes out a case of
cruelty against a married woman by her in-laws. The offence
under Section 498A of the Indian Penal Code is a continuing
offence and the said offence has been committed at both the
place within the jurisdiction of the Jehanabad Court and within
the jurisdiction of Pathankot Court. Only the alleged dowry
death was committed at Pathankot. Section 178 and Section179 Cr.P.C.
are being reproduced below:
“178. Place of inquiry or trial.-
(a) When it is uncertain in which of several
local areas an offence was committed, or
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(b) where an offence is committed
partly in one local area and partly in another,
or
(c) where an offence is a
continuing one, and continues to be committed
in more local areas than one, or
(d) 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.
179. Offence triable where act is
done or consequence ensues.- When an act is
an offence by reason of 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.”
12. Thus, in my view the jurisdiction of the Court
at Jehanabad is squarely covered under Clauses (b)(c) and (d) of
Section 178 Cr.P.C. as well as under Section 179 Cr.P.C.
Therefore, in my considered opinion, the Court-below has
jurisdiction to pass the impugned order and proceed with the
trial. The claim of the petitioners that the brother of the
deceased, who reached at Pathankot before cremation of the
dead body and saw everything and participated in the post
mortem did not raise grievance before the Pathankot police and
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the complaint petition was filed after two months of the
occurrence in a pre-planned manner can be looked into at the
stage of trial only for appreciation of the trustworthy of the case
of the prosecution. On that very basis, it cannot be argued that
no prima facie case is made out disclosing a cognizable offence
against the petitioner to ask the petitioner to face trial.
Therefore, on merit also the impugned order cannot be
interfered with. It is again the matter of appreciation of evidence
that the police relied on the material received from Pathankot
for coming to the conclusion that this was a case of mistake of
fact. On the basis of conclusion of the police which was already
disagreed by the Magistrate at the time of cognizance which got
finality, the prosecution case cannot be thrown away at the
threshold.
13. The case of SectionPritam Kumar V. The State of
Bihar relied upon by the learned counsel for the petitioner is
distinguishable from this case. In Pritam Kumar’s case the
brother of the deceased had lodged an information with the
police disclosing some different reason of death of his sister in
the matrimonial house and this information was lodged soon
after death. Thereafter, a complaint was filed in a different
jurisdiction of the Court by one of the parent and that Court took
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cognizance even after receipt of entire material including the
information lodged by the brother of the deceased and medical
report submitted therein. In the peculiar facts of that case, this
Court held that the case was result of malicious prosecution and
was abuse of the process of the Court.
14. Considering the entire facts of this aforesaid, in
my view, this application has got no merit. Accordingly, it
stands dismissed.
Mkr./- (Birendra Kumar, J)
AFR/NAFR NAFR
CAV DATE 05.12.2019
Uploading Date 10.12.2019
Transmission Date 10.12.2019