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Mukesh Kumar vs State Of Bihar And Anr on 18 February, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.42393 of 2014
Arising Out of Case No.-183 Year-2013 Thana- ROHTAS COMPLAINT CASE District-
Rohtas

Mukesh Kumar Son of Panchanand Singh Resident of Mohalla – Subash
Nagar, Ward No. 15, P.S. Dehri District – Rohtas, Bihar

… … Petitioner/s
Versus

1. The State Of Bihar

2. Satya Narayan Mehta Son of Sri Ramji Mehta Resident of Village – Keshri
Bigha, P.S. Akodi Gola, District – Rohtas

… … Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Yogesh Chandra Verma, Sr. Advocate with
Mr. Shashikant and
Mr. Surendra Kumar Mishra, Advocates

For the State : Ms. Madhuri Lata, APP

For the O. P. No. 2 : Mr. Sudama Singh, Advocates

CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL JUDGMENT

Date : 18-02-2019

Heard Mr. Yogesh Chandra Verma, learned senior

counsel along with Mr. Shashikant and Mr. Surendra Kumar

Mishra, learned counsel for the petitioner; learned A.P.P. for the

State and Mr. Sudama Singh, learned counsel for the opposite

party no. 2.

2. The petitioner has moved the Court under Section 482

of the Code of Criminal Procedure, 1973 (hereinafter referred to as

the ‘Code’) for the following relief:

” That this is an application for quashing the order
dated 03-12-2013 passed by learned Sub-

Patna High Court Cr.Misc. No.42393 of 2014 dt.18-02-2019
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divisional Judicial Magistrate, Dehri passed in
compliant case no. 183 of 2013, whereby and
where under the said learned court has taken
cognizance against the petitioner for the offences
u/s-498A, 304B of the Indian Penal Code and
section 4 of the Dowry Prohibition Act, upon the
complaint of the complainant. Since the
Complainant has most maliciously suppressed the
fact that the first information reprot, bearing
Chakan (Pune) P.S. Case no.-190/2013 dated 09-
06-2013 was already instituted for the said
occurrence in which charge sheet no.-72/2014
dated 07-03-2014 has already been filed against
the Petitioner under section 302, 307, 498A and
201 of the Indian Penal Code; AND/OR

For issuance of any other order/orders,
direction/directions, as Your Lordship may deem fit
and proper in the facts and circumstances
mentioned herein below.”

3. The allegation in the compliant filed by the opposite

party no. 2 against the petitioner is of killing the daughter of the

opposite party no. 2, who was the wife of the petitioner, in the

State of Maharashtra.

4. Learned counsel for the petitioner submitted that due

to the daughter of the opposite party no. 2 having been burnt in a

natural accident, he had got her admitted in a hospital in Chakan

(Pune) in the State of Maharashtra and he was the informant of

Chakan (Pune) P.S. Case No. 190 of 2013 dated 09.06.2013. It was

submitted that he, being the husband, made best efforts to see that

she was properly treated but despite her being referred to Sanjivani
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Hospital in Pune, she succumbed to her injuries. It was submitted

that though the petitioner was the informant, but due to connivance

of the police with the opposite party no. 2, he was made an

accused and in fact the opposite party no. 2 is a chargesheet

witness. Learned counsel submitted that the opposite party no. 2 is

fully aware of such development and suppressing the same, he

filed the present compliant case before the Court of Sub Divisional

Judicial Magistrate, Dehri in the district of Rohtas, being

Complaint Case No. 183 of 2013, on 21.06.2013. Learned counsel

submitted that in the same, such fact of there already being a

police case in Maharashtra having been suppressed, the complaint

itself is fit to be dismissed. For such proposition, he relied upon

the decision of the co-ordinate Bench of this Court in Shashi Kant

Tiwari vs. State of Bihar reported as 2011(3) PLJR 214, the

relevant being at paragraph no. 5. It was further submitted that for

the same offence /occurrence two cases cannot proceed at the same

time and, thus, there already being an F.I.R. for the same incident

in Maharashtra, the present complaint case is not sustainable. For

such proposition, learned counsel relied upon the decision of the

Hon’ble Supreme Court in T.T. Antony v. State of Kerala

reported as (2001) 6 SCC 181, the relevant being at paragraphs

no. 18 and 27. Learned counsel submitted that the issue of the
Patna High Court Cr.Misc. No.42393 of 2014 dt.18-02-2019
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opposite party no. 2 not disclosing the fact that there was already a

police case pending and under investigation, has also resulted in

the misuse of the process of the Court for the reason that once such

fact is not disputed, Section 210 of the Code requires in mandatory

terms that the Magistrate before whom it is filed, on being aware

of there being a police case and investigation by the police being

in progress in relation to the offence which was the subject matter

of the inquiry or trial before him, he is required to stay the

proceeding of such enquiry or trial and call for a report on the

matter from the police officer conducting the investigation. Thus,

it was submitted that the F.I.R. being lodged much prior to lodging

of the present compliant case, such fact not being even whispered

in the complaint, clearly indicates that the opposite party no. 2 had

not moved before the Court with clean hands. Learned counsel

further submitted that in the present case, the other important legal

issue in favour of the petitioner is Section 171 of the Code which

in categorical terms relates to the ordinary place of enquiry and

trial. It was submitted that the same stipulates that every offence

shall ordinarily be enquired into and tried by a Court within whose

local jurisdiction it was committed. Learned counsel submitted

that in the present case there being no doubt or controversy that the

incident took place in Maharashtra and already a police
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investigation pursuant to a formal F.I.R. having been initiated, the

law also requires that the offence shall be enquired into and tried

by the Court within whose local jurisdiction it was committed.

Learned counsel submitted that in any view of the matter, when

the petitioner, though being the informant in the police case in

Maharashtra has now been made an accused and the opposite party

no. 2 himself is a chargesheet witness, it cannot be said that there

has been miscarriage of justice for the reason that the police in

Maharashtra have started prosecution against the petitioner and

further the opposite party no. 2 is also a chargesheet witness

meaning thereby that he has full opportunity of placing all facts

known to him before the Court during his examination at

Maharashtra.

5. Learned A.P.P. submitted that though the petitioner

appears to have committed offence but since pursuant to an F.I.R.,

already a case in Maharashtra is pending, which was prior in time

to the present complaint case, in law, the present complaint case is

not fit to proceed.

6. Learned counsel for the opposite party no. 2

submitted that the petitioner is the sole accused in the murder of

his daughter, being the husband, and though the Maharashtra

police may have submitted chargesheet but it is equally important
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that the witnesses are also properly examined so that justice is

done and for conducting case at Maharashtra, witness from the

State of Bihar may not be able to even go there which would

definitely cause prejudice to the trial in the State of Maharashtra.

Learned counsel submitted that Section 186 (b) also stipulates that

where there is enquiry or trial at more than two places and the two

places fall under the jurisdiction of different Courts, the High

Court within the local limits of whose local appellate criminal

jurisdiction the proceedings were first commenced, shall decide as

to whether the enquiry or trial of the offence shall be conducted. In

this connection, he relied upon the decision of a co-ordinate Bench

in Mukesh Patwa v. State of Bihar reported as 2010 (1) PLJR

138, the relevant being at paragraph no. 8. It was submitted that

the Court has held that taking of cognizance would be the relevant

date for considering where the proceedings first commence.

Learned counsel submitted that in the present case, cognizance

was taken in the complaint case on 03.12.2013 whereas in the case

in Maharashtra cognizance has been taken on 01.03.2014. Thus,

learned counsel submitted that this Court has the jurisdiction to

decide the issue and the compliant case is fit to continue and the

case in Maharashtra should not continue. Learned counsel

submitted that though the police in Maharashtra had recorded the
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statement of the victim girl when she was alive and in which she

had stated with regard to the petitioner demanding dowry, torturing

her and also setting her on fire after pouring kerosene and still

making the statement of the petitioner as the F.I.R., itself shows

that the case in Maharashtra was not properly handled and, thus,

there is chance of miscarriage of justice. Learned counsel

submitted that the judgments cited on behalf of the petitioner are

not applicable for the reason that in those two cases, the question

was of lodging of F.I.R. and in that context it was held that two

F.I.Rs. for the same offence were not permissible. However, it was

submitted that in the present case, the opposite party no. 2 had

filed a complaint case and not F.I.R. before the police. It was

submitted that in one of those cases the fact was that the person

had lodged an F.I.R. after three years on the ground that he was

living at the place where he had instituted the F.I.R. and thus, the

Court had held it to be not maintainable. On a direct query of the

Court to learned counsel as to how Section 186 of the Code would

help him for the reason that such provision being under Chapter

XIII of the Code is only to be applied when there is a doubt with

regard to the district where enquiry or trial shall take place and the

High Court is required to decide and in the present case, once

Section 177 of the Code clearly specifying that every offence shall
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ordinarily be enquired into and tried by a Court within whose local

jurisdiction it was committed and in the present case there being

no controversy or doubt with regard to the death of the daughter of

the opposite party no. 2 taking place in Maharashtra, learned

counsel was not able to give any suitable reply. Further, with

regard to there being a specific provision in Section 186 of the

Code that the “High Court to decide, in case of doubt, district

where enquiry or trial shall take place”, would include the enquiry

by the police also and, thus, in that context sub section (b) of

Section 186 of the Code, which mentions about the proceedings

first being commenced, the obvious import would be that it would

include the enquiry also and in the police case, the investigation by

the police also being an enquiry, how the same shall be limited to

only taking of cognizance, which is the stage after the enquiry,

either by the police in a criminal case lodged by them pursuant to

an F.I.R. or by the Magistrate after he holds an enquiry and then

takes cognizance, learned counsel again could not show the

difference. Learned counsel summed up his argument by

submitting that there has been injustice with the father.

7. Having considered the facts and circumstances of the

case and submissions of learned counsel for the parties, the Court

finds that a case for interference has been made out.
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8. From the undisputed factual position, the opposite

party no. 2 had gone to Maharashtra to a Hospital at Chakan where

his daughter was initially admitted and later shifted to another

Hospital in Pune, where she died later on and, thus, it cannot be

said that the opposite party no. 2 was not aware of there being a

criminal case instituted there for the reason that had there been no

case instituted, the first and foremost and natural reaction of any

mature person would be to inform the authorities concerned with

regard to the incident. This is more relevant for the fact that there

had been burning of the daughter of the opposite party no. 2 which

was an unnatural occurrence and without there being a proper

police clearance, no Hospital could have treated her in that

condition. Moreover, there is no denial that the opposite party no.

2 was not present during the last rites of his daughter, which also

leads to the obvious presumption that there was an F.I.R. pursuant

to which there would have been a postmortem and then body

would have been released by the Hospital concerned. Moreover,

there is not even a whisper or any averment by the opposite party

no. 2 in the complaint that the police had refused to register any

case at his behest and that the police had not taken his statement.

Obviously, a father being faced with the situation where his

daughter is badly burnt, unless being satisfied that he has made a
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complaint to the authorities and recorded his statement, he would

not have just remained an idle spectator and returned to Bihar. Him

not making any grievance in Maharashtra with regard to there

being no case lodged or the police not recording his statement, it

can be safely presumed that the opposite party no. 2 was fully

aware of the criminal case and also satisfied with the said case. Be

that as it may, it is for the party who moves before the Court to be

first fully aware of the factual position and even for the sake of

argument, if it is accepted that he was unaware, then also the onus

was on him and it was obligatory to first enquire the factual

position in the State of Maharashtra which he was required to get

from the authorities concerned before filing the case before the

Court and it was his duty to mention the same in the petition. This

not having been done by him in the complaint, clearly would

amount to major suppression of fact as it would have changed the

picture, since the Court below would have had to act in accordance

with Section 210 of the Code, for the reason that once being aware

that already there is a police enquiry, the Court has to ask for a

report with regard to the same. Moreover, this Court finds that

even in the case in Maharashtra, from perusal of chargesheet of the

case, it is clear that the same has been submitted under Sections

302, 307, 498A and 201 of the Indian Penal Code and, thus, the
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allegation under Sections 498(A) and 304(B) of the Indian Penal

Code in the compliant are more than adequately covered in the

cognizance taken against the petitioner in the State of Maharashtra.

9. The judgments relied upon by learned counsel for the

opposite party no. 2 in Mukesh Patwa (supra), this Court would

only observe that the same cannot be said to be a precedent with

regard to the proceedings having commenced only after

cognizance is taken, for the reason that the same is not discussed

in the judgment and more importantly the judgment does not take

note of the very language of Section 186 of the Code which reads

as under:

“186. High Court to decide, in case of doubt,
district where inquiry or trial shall take
place.- Where two or more Courts have taken
cognizance of the same offence and a question
arises as to which of them ought to inquire into
or try that offence, the question shall be decided-

(a) if the Courts are subordinate to the same
High Court, by that High Court;

(b) if the Courts are not subordinate to the same
High Court, by the High Court within the local
limits of whose appellate criminal jurisdiction
the proceedings were first commenced,
and thereupon all other proceedings in respect of
that offence shall be discontinued.”

10. At the cost of repetition, the heading itself states that

the High Court is to decide, in case of doubt, district where

enquiry or trial shall take place. Thus, in the opinion of the Court,
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it leaves no doubt that the term “enquiry” would include a police

enquiry /investigation. Thus, the reference to the “proceedings

were first commenced” cannot be restricted only with regard to the

actual taking of cognizance. Moreover, looking from another

angle, if the commencement of the proceedings is directly linked

with taking of cognizance it would lead to an absurd position in

law, where, in a criminal case the investigation by the police, due

to various unavoidable factors, takes long, whereas in the

complaint case on the same day the concerned party can get the

evidence recorded and within a few days it can result in taking of

cognizance. Thus, the mere fact of taking of cognizance in no way

can be said to be the “commencement of the proceeding”, as any

criminal proceeding is deemed to have commenced the moment

information is given to the local police with regard to commission

of a cognizable offence, which leads to lodging of the F.I.R.,

followed by enquiry/investigation by the police. Thus, the Court

finds that Section 186 (b) of the Code is of no help to the opposite

party no. 2, also for the reason that it is applicable only if there is

“doubt” and when, as per Section 177 of the Code there is no

doubt with regard to local jurisdiction of the Court where the

enquiry or trial is to be held, which in the present case is
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Maharashtra, the Court in the State of Bihar would not have

jurisdiction.

11. For reasons aforesaid, the application is allowed. The

entire criminal proceeding arising out of Complaint Case No. 183

of 2013, including the order dated 03.12.2013, by which

cognizance has been taken, as far as it relates to the petitioner,

stands quashed.

12. However, it shall be open to the opposite party no. 2

to move before the appropriate forum/court, if at all he has serious

apprehension with regard to the trial proceeding at Maharashtra

and if he desires the same to be held in the State of Bihar.

(Ahsanuddin Amanullah, J)

Anjani/-

AFR/NAFR AFR
U
T

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