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-
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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
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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
