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Kumar Gaurav vs The State Of Bihar on 10 December, 2019

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
Patna High Court CR. MISC. No.579 of 2018 dt.10-12-2019
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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
Patna High Court CR. MISC. No.579 of 2018 dt.10-12-2019
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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

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