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Muharbi vs State Of Haryana on 27 August, 2018

CRM-M No. 33991 of 2016 -1-

IN THE HIGH COURT OF PUNJAB HARYANA AT CHANDIGARH

CRM-M No. 33991 of 2016 (OM)
Date of decision : 27.8.2018

Muharbi
…………….Petitioner

vs.

State of Haryana
……………..Respondent

Coram: Hon’ble Mr. Justice H. S. Madaan

Present: Mr. Rajesh Lamba, Advocate
for the petitioner.

Mr. Gaurav Bansal, AAG, Haryana.

Mr. Abhilaksh Grover, Advocate
for the complainant.

H. S. Madaan, J.

Complainant (name withheld), daughter of Sher

Mohammad, r/o Village Gundwas, Police Station Hassanpur, District

Palwal, had submitted a written complaint addressed to the Protection

Officer, District Palwal, seeking taking of legal action against her

husband Tahir Hussain, father-in-law Khurshid, mother-in-law

Muhari, sisters-in-law Tahira and Saira, brothers-in-law Jubair and

Abbas, contending that she was married with Tahir Hussain s/o

Khurshid, according to Muslim rites and rituals on 21.5.2009. At that

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time, her father had given dowry as per his capacity, including a

Wagon-R car and Rs.5 lacs in cash, 4 kgs silver, 15 tolas of gold

articles etc. spending Rs. 26 lacs on the marriage. However, husband

and in-laws family of the complainant being greedy persons, were not

happy with the dowry and they used to taunt the complainant

regarding the same, raising demand of more dowry. The complainant

could not get those demands conceded, as such she was forced to

work for the entire day and was not given sufficient food to eat. All

the costly articles were mis-appropriated by the accused. She used to

be given beatings even. The accused did not return the dowry articles

to the complainant and rather committed criminal breach of trust in

that regard. She has levelled allegations of her father-in-law

committing wrong acts with her and his doing so on 15.3.2014.

According to the complainant, her husband used to say that if the

complainant wanted to stay in the matrimonial home, then she would

have to maintain physical relations with his father. The details of

maltreatment and harassment have been given in that complaint.

Formal FIR was registered. The accused were arrested in

this case. After completion of investigation, challan against the

accused was prepared and filed in the Court on 30.10.2014. Section

376 IPC was deleted during the investigation for the reason that the

Police Station did not have any jurisdiction. The remaining offences

for which the challan had been filed, were under Sections 498-A, 406,

506, 323, 494, 316, 120-B IPC. After complying with the provisions

under Section 207 Cr.P.C., learned JMIC, Hodal, committed the case

to the Court of Sessions. However, as is evident from the interim

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CRM-M No. 33991 of 2016 -3-

order passed, cognizance of offence under Section 376 IPC had not

been taken. Learned Additional Sessions Judge, Palwal, also did not

take cognizance under Section 193 Cr.P.C. for offence under Section

376 IPC. The petitioner was granted bail vide order dated 20.11.2014

passed by Additional Sessions Judge, Palwal. When arguments on the

point of framing of charge were addressed, learned Additional

Sessions Judge, did not take cognizance of offence under Section 376

IPC and an order dated 13.1.2015 in that regard was passed,

remanding the case to Judicial Magistrate Ist Class, holding that

offence under Section 316 IPC was not made out, whereas remaining

offences under Sections 498-A, 406, 506, 323, 494, 120 IPC were

triable by the Magistrate. Charge against the accused was framed on

12.3.2015 for offences under Sections 498-A, 406, 494, 120-B, 506,

323 IPC. The case was fixed for PWs on 4.5.2015. On 17.3.2016

supplementary challan against co-accused Khurshid and Muhari was

filed under Sections 498-A, 406, 494, 120-B, 323 IPC. However, an

application was moved by the complainant on 28.9.2015 for issuance

of direction to SHO, Police Station, Hussanpur, to submit status

report with regard to the challan of remaining accused, status of the

FIR and alteration of charge. Learned Judicial Magistrate Ist Class,

Hodal, again took cognizance of the offence and vide order dated

10.5.2016 a finding was returned that offence under Section 376 IPC

had been committed by accused Khurshid, which is exclusively

triable by the Court of Sessions and the case was committed to the

Court of Sessions on that very date. Vide order dated 20.5.2016,

Additional Sessions Judge, Palwal, recalled the impugned

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CRM-M No. 33991 of 2016 -4-

commitment order, setting aside the same on the ground that one of

the accused who is stated to have committed offence under Section

376 IPC was not on bail under that provision and it was duty of the

Magistrate to pass an order under Section 209(a) and (b) Cr.P.C. That

order has been challenged by the accused, by way of filing the present

petition under Section 482 Cr.P.C.

Notice of the petition was given to the respondents, who

had put in appearance.

I have heard, learned counsel for the petitioner, learned

State counsel, assisted by learned counsel for the complainant and I

find that there is no merit in the petition.

In the FIR recorded on the basis of written complaint

submitted by the complainant, there are allegations of father-in-law of

the complainant committing wrong acts with her, particularly, a date

in that regard has been given as 15.3.2014, which are, as a matter of

fact, with regard to the rape of complainant at the hands of her

father-in-law. After recording of the FIR the matter was investigated.

The challan against accused was not filed for offence under Section

376 IPC, for the reason of the Police Station concerned, not having

the jurisdiction over the area where such offence was committed. That

was obviously done wrongly by the Investigating Agency, since no

jurisdictional issue would be there when a part of offence had been

committed within the jurisdiction of the Police Station concerned.

While saying so, I find support from the observations made by a Co-

ordinate Bench of this Court in that regard in authority Kimiti Lal

Jain vs. State 2000 (3) R.C.R. (Criminal) 232, wherein while dealing

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CRM-M No. 33991 of 2016 -5-

with aspect of territorial jurisdiction, it was observed that when a

offence consists of several acts done in different local areas, it can be

enquired into and tried by a Court having jurisdiction over any of

such local areas. Furthermore, in authority Kumari Chandrakar and

others vs. State of Chhattisgarh 2006 CriLJ 3822, it was observed

by Single Bench of Chhattisgarh High Court that in case of offence

under Section 498-A IPC relating to cruelty by husband or his

relative, when the offence alleged was completed partly in one local

area or partly in another local area, then any Court having jurisdiction

to try offences alleged against applicant can exercise jurisdiction in

the matter under Section 498-A and 406 IPC.

Admittedly, on filing of challan in the Court of

Magistrate having jurisdiction, after complying with the provisions

under Section 207 Cr.P.C., the case had been committed to the Court

of Sessions. Merely because Additional Sessions Judge, Palwal did

not take cognizance of offence under Section 376 IPC, does not mean

that the Courts gets debarred from doing it, at later stage. Any

omission or lapse which took place during the trial, can certainly be

remedied at later stage and even charge can be altered and amended at

any stage of trial, keeping in view the material which is available

before the Court.

Now here Additional Sessions Judge, remanded the case

to the Court of Judicial Magistrate Ist Class, Hodal, who finding that

offence under Section 376 IPC had been committed, which is

exclusively triable by the Court of Sessions, had committed the case

to the Court of Sessions. Section 209 Cr.P.C., which deals with

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CRM-M No. 33991 of 2016 -6-

commitment of case to the Court of Sessions, when offence is triable

exclusively by it provides that when in a case instituted on a police

report or otherwise, the accused appears or is brought before the

Magistrate and it appears to the Magistrate that the offence is triable

exclusively by the Court of Session, he shall commit to the Court of

Sessions. The crucial word is the Magistrate finding that offence is

triable exclusively by the Court of Sessions. Once the case was

remanded to Judicial Magistrate Ist Class, for the reason that offence

under Section 316 IPC was not made out, he during the course of trial

found that offence under Section 376 IPC appear to have been

committed, was justified in committing the case to the Court of

Sessions. Things would have been different if the Court of Sessions

had observing that no offence under Section 376 IPC was made out,

had remanded the case to Judicial Magistrate Ist Class and the

Judicial Magistrate Ist Class, after trying it for some time had again

committed the case to the Court of Sessions, for the reason that

offence under Section 376 IPC appeared to have been committed. The

Additional Sessions Judge is now sending the case to the Judicial

Magistrate Ist Class, not for the reason that no offence under Section

376 IPC is disclosed, but for the reason that necessary conditions with

regard to bail etc. under Section 209 Cr.P.C. had not been complied

with, asking it to do the needful and thereafter send the case again.

Learned counsel for the respondent has referred to

following authorities in support of his contention that orders passed

by the Courts below are legal and valid and do not call for any

interference:-

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CRM-M No. 33991 of 2016 -7-

1) Bal Kishan vs. Local Health Authority, Department

of PRA, Government of NCT of Delhi and another

ILR (2002) II Delhi 76;

2) Dharam Pal and others vs. State of Haryana and

another (2014) 3 Supreme Court Cases 306;

3) Sudhir and other vs. State of M.P. (2001) 2 Supreme

Court Cases 688;

4) State of Maharashtra vs. Salman Salim Khan and

another (2004) 1 Supreme Court Cases 525;

5) P. Kartikalakshmi vs. Sri Ganesh and another (2017)

3 Supreme Court Cases 347; and

6) Subhan Khan vs. State of Rajasthan 2002 (2)

RajCriC 821

In view of the above discussion, there is no merit in the

present petition and the same stands dismissed.

( H.S. Madaan )
27.8.2018 Judge
chugh

Whether speaking / reasoned Yes / No

Whether reportable Yes / No

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