Heard learned counsel for the applicants, learned A.G.A. as well as learned counsel for the respondents.
The present application has been filed under Section 482 Cr.P.C. for quashing the criminal complaint case no. 340 of 1999, under Sections 498-A, 406 I.P.C. and section 3/4 Dowry Prohibition Act.
In the aforesaid case, after taking cognizance of offence on a complaint case in accordance with provisions of Section 190 Cr.P.C., learned Magistrate has proceeded to record the statement under Sections 200 and 202 Cr.P.C. and thereafter considering the material evidence on record, he has issued the process i.e. summoning order in accordance with the provisions of under Section 204 Cr.P.C.
The main ground on which the order is challenged for quashing is that learned Magistrate has no jurisdiction to take cognizance of the offence on the complaint case because the alleged torturing and cruelty is alleged to have been committed at Haridwar or Delhi which alone have jurisdiction and not the Court of C.J.M. at Ballia.
It is also contended that two minors have been implicated in the matter on which ground also it has been challenged and prayed that proceedings be quashed under Section 482 Cr.P.C.
The contention of the learned counsel for the applicants is that all the alleged torturing has taken place at Haridwar and the husband Basant Kumar was in Job at Delhi. As such, he vehemently argued that it is the Court at Haridwar and Delhi which alone have jurisdiction and not the Court of C.J.M. at Ballia. Thus, there is jurisdictional error in taking cognizance of the offence.
In this regard, It will be expedient to go through the provisions of Section 177 Cr.P.C. which laws down as follows :-
"Ordinary place of inquiry and trial- Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed."
Thus, as per the contention of learned counsel for the applicants, it is only the Court at Haridwar or Delhi which has jurisdiction to take cognizance and tried the case and not the Court of C.J.M. at Ballia.
In this connection, learned counsel for the opposite party rebutted this contention and submitted that section 177 Cr.P.C. is a general provision which makes general provision for the ordinary place of inquiry and trial.
In this connection, it will be expedient to go further into other provisions which are mentioned in Chapter-13 of Cr.P.C. which deals with the jurisdiction of criminal court in inquiries and trials according to section 178 Cr.P.C. which lays down as follows :-
Place of inquiry or trial.
"(a) When it is uncertain in which of several local areas an offence was committed, or (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."
Thus, learned counsel for the respondent submits that the offence under Section 498-A and 3/4 Dowry Prohibition Act i.e. torture for demand of dowry is continuing offence which has been committed in local areas of more than one District. The complaint when read as a whole discloses the fact that initially the marriage had been solemnized within the jurisdiction of learned Magistrate at Ballia, thereafter, the torture is alleged to have been made at Haridwar.
Learned counsel for the complainant further says that after one year of marriage, when her father came to meet her, the complainant narrated about the mal-treatment with her by family members of the husband. Again the father came at Haridwar with one counsel who was a relative and went to meet her, the mother-in-law, father-in-law, sister-in-law and brother-in-law confined her in a room and had beaten her. Hence, they did not allow her father to meet her and at the police station she was allowed to meet her parents and relatives. After great efforts the father took her back to her parental home.
Thereafter on 09.09.1998, a letter was received by the complainant from her husband that he wants to close marriage relation with her and threatened to divorce her. He and his family members threatened to divorce her. Lastly on 12.2.1999, Panchayat was held in the presence of both the parties and they started making pressure that they should keep to complain properly, whereupon his parents, brother and sister refuse to keep to complain and said that they will re-marry further and they will kill her.
Learned counsel for the respondent submitted that lastly Panchayat was held at Gangyapar in District Ballia in which the father and the husband and his family members acted with cruelty and refused to accept her and took her back and also threatened to kill her by burning. The contention of learned counsel for the respondent is that offence of torturing and cruelty continued up-till on account of dowry and for not satisfying the demand of dowry and Maruti Car. Thus, the offence was continuing one, the Panchayat was held at Gangyapar in District Ballia.
As such, learned counsel for the applicants submitted that since it was continuing offence in which part of offence was committed at Haridwar, Lastly offence and torturing for dowry was committed during the Panchayat at Gangyapar in District Ballia. Learned Magistrate at Ballia also has sufficient jurisdiction to try the case in accordance with the provisions of Section 178 Cr.P.C. which lays down as follows :-
Place of inquiry or trial -
"(a) When it is uncertain in which of several local areas an offence was committed, or (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."
So the general provision as enunciated in Section 177 Cr.P.C. is excluded in view of specific provisions as enunciated in section 178 Cr.P.C. with regard to continuing offence in more than one local areas. Thus, the contention of learned counsel for the applicants does not seem to be sustainable on this ground.
In this connection, learned counsel for the opposite party filed a ruling reported in 1997 SC page 2465 in the case of Smt. Sujata Mukherjee vs. Prashanat Kumar Mukherjee, wherein it has been held that para -7 of said judgement which lays down as follows :
" We have taken into consideration the complaint filed by the appellant and it appears to us that the compliant reveals a continuing offence of mal treatment and humiliation meted out to the appellant in the hands of all the accused respondents and in such continuing offence, on some occasions all the respondents had taken part and on other occasion, one of the respondents had taken part. Therefore, clause (C) of section 178 of the Code of Criminal Procedure is clearly attracted. We, therefore, set aside the impugned order of the High Court and direct the learned Chief Judicial Magistrate, Raipur to proceed with the criminal case. Since the matter is pending for long, steps should be taken into expedite the hearing. The appeals are accordingly allowed."
Thus, in view of the precedent quoted above and the circumstances of the present case and specific provisions as enunciated in Section 177 Cr.P.C. with regard to ordinary place of inquiry and trial will not be applicable. Instead the provisions of section 178 Cr.P.C. which related to the jurisdiction with regard to the inquiry or trial which is continuing one will be applicable.
Learned counsel for the applicants submits that so far as the question of juvenile is concerned, it has come in the counter affidavit that applicant Raghavendra was above 20 years of age and Shipra was above 16 years of age which comes to 16 years nine months and 12 days on 3.6.1999.
Learned counsel for the respondent referred to a ruling reported in A.I.R. 2000 S.C. 2265 in Arnit Das v. State of Bihar, wherein it has been held that:-
" Crucial date for determining the question whether a person is juvenile is the date when he is brought before the competent authority. The procedure prescribed by the provisions of the Act has to be adopted only when the competent authority finds the person brought before it or appearing before it is found to be under 16 years of age if a boy and under 18 years of age if a girl on the date of being so brought or such appearance first before the competent authority. The date of of the commission of offence is irrelevant for finding out whether the person is a juvenile within the meaning of Clause (h) of Section 2 of the Act. If that would have been the intendment of the Parliament, nothing had prevented it from saying so specifically. Therefore, a Police Officer or a Magistrate who is not empowered to act or can not act as a competent authority has to merely form an opinion guided by the apparent age of the person and in the event of forming an opinion that he is a juvenile, he has to forward him to the competent authority at the earliest subject to arrangements for keeping in custody and safety of the person having been made for the duration of time elapsing in between. The competent authority shall proceed to held enquiry as to the age of that person for determining the same by reference to the date of the appearance of the person before it or by reference to the date when person was brought before it under any of the provisions of the Act. It is irrelevant what was the age of the person on the date of commission of the offence. Any other interpretation would not fit in the scheme and phraseology employed by the Parliament in drafting the Act. Moreover, the use of the word 'is' at two places in sub section (1) of Section 32 of the Act read in conjunction with a person brought before it also suggests that the competent authority is required to record the finding by reference to an event in praesenti before it, i.e. be reference to the date when the person is brought before it and not by reference to a remote event i.e. the date on which the offence was committed."
So learned counsel for the respondent submits that it is not an error because in view of the aforesaid ruling the relevant time to be considered is when the applicant appears or is produced before the Court. As such the contention raised by the learned counsel for the applicants also does not seem to be tenable at this stage, because it is only when the applicant appears or is produced before the Court, learned Magistrate will look into the matter as to whether he is juvenile or not and thus he shall proceed to deal with the case in accordance with the provisions as are prescribed for the juvenile offender.
So far as the contention that entire family have been falsely implicated in the case. In this regard, the learned Magistrate has to look into the allegations made in complaint and material evidence under Section 200 and 202 Cr.P.C.. The applicants shall have ample opportunity to disclose these facts before the Competent Court after their appearance at the appropriate stage before the learned Magistrate. As such, this contention also does not appear to hold good. On the basis of the aforesaid discussion, it appears that there are no good and cogent ground to invoke the powers under Section 482 Cr.P.C.
Learned counsel for the respondents has filed case law reported in 1960 AIR 862, 1960 SCR (3) 311, wherein it has been held that :-
"No case for quashing the proceeding was made out. The inherent 'Jurisdiction of the High Court could be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. The following are some categories of cases where the inherent jurisdiction could and should be exercised to quash proceedings : (i) where there was a legal bar against the institution or continuance of the proceedings; where there was a legal bar against the institution or continuance of the proceedings; (ii) where the allegations in the first information report or complaint did not make out the offence alleged; and (iii) where either there was no legal evidence adduced in support of the charge or the evidence adduced clearly or manifestly failed to prove the charge.
In exercising its jurisdiction under Section 561-A of the Code the High Court cannot embark upon an enquiry as to whether the evidence in the case is reliable or not. In the present case, there was no legal bar to the institution of the proceedings or to their continuance; the allegations made in the first information report did constitute the offences alleged and it could not be contended that on the face of the record the charge was unsustainable.
Any opinion on this part of the appellant's argument. All we wish to say is that we would inevitably have to consider the evidence ourselves and to appreciate it before we pronounce any opinion on the validity or otherwise of the argument. It is not a case where the appellant can justly contend that on the face of the record the charge levelled against him is unsustainable. The appellant no doubt very strongly feels that on the relevant evidence it would not be reasonably possible to sustain the charge but that is a matter on which the appellant will have to satisfy the magistrate who take cognizance of the case. We would, however, like to emphasise that in rejecting the appellant's prayer for quashing the proceedings at this stage we are expressing no opinion one way or the other on the merits of the case.
There is another consideration which has weighed in our minds in dealing with this appeal. The appellant has come to this Court under Article 136 of the Constitution against the decision of the Punjab High Court; and the High Court has refused to exercise its inherent jurisdiction in favour of the appellant. Whether or not we would have come to the same conclusion if we were dealing with the matter ourselves under s. 561-A is not really very material because in the present case what we have to decide is whether the judgement under appeal is erroneous in law so as to call for our interference under Act. 136. Under the circumstances of this case we are unable to answer this question in favour of the appellant."
In the circumstances, it cannot be said that on the face of the record summoning order passed against the applicant is unsustainable. In case, the applicant feels that the charge will not be sustainable, then it was for the applicant to satisfy the learned Magistrate taking cognizance of offence at the appropriate stage.
In yet another case reported in A.I.R. 1990 S.C. 494 in Case of Mrs. Dhanalakshmi, Appellant v. R. Prasanna Kumar and others, wherein it has been held that :-
"Criminal P.C. (1974), Section 482 Cr.P.C.- Quashing of proceeding by High Court under inherent powers - Magistrate taking cognizance of complaint for offences under Sections 494, 496 etc. of Penal Code filed by wife- Specific allegations in complaint disclosing ingredients of offence-Quashing of proceedings by High Court is illegal."
In para-7 of the aforesaid case, it has been held that:-
"The High Court without proper application of the principles that have been laid down by this Court in Sharda Prasad Sinha v. State of Bihar, (1977) 2 SCR 357 : (AIR 1977 SC 1754), Trilok Singh v. Satya Deo Tripathi, 1980 Criminal LJ 822 : AIR 1979 SC 850 and Municipal Corpn. Of Delhi v. Purshotam Dass Jhunjunwala, (1983) I SCR : AIR 1983 SC 158) proceeded to analyse the case of the complainant in the light of all the probabilities in order to determine whether a conviction would be sustainable and on such premises arrived at a conclusion that the proceedings are to be quashed against all the respondents. The High Court was clearly in error in assessing the material before it and concluding that the complaint cannot be proceeded with. We find there are specific allegations in the complaint disclosing the ingredients of the offence taken cognizance of. It is for the complainant to sustainable the allegations by evidence at a later stage. In the absence of circumstances to hold prima facie that the complaint is frivolous when the complaint does disclose the commission of an offence there is not jurisdiction for the High Court to interfere."
In yet another case reported in A.I.R. 1985 S.C. 628 in case of Pratibha Rani, Appellant v. Suraj Kumar and another, wherein it has been held that :-
"Section 482- Offence under Section 405/406 I.P.C.-Misappropriation of stridhana property - Complainant pleading all ingredients of offence in complaint-Opportunity to prove her case cannot be denied to her- Quashing for complaint under Section 482 by High Court, not justified".
In para-11 of the aforesaid case, it has been held that :-
"A perusal of the allegations made in the complaint undoubtedly makes out a positive case of the accused having dishonestly misappropriated the articles handed over to them in a fiduciary capacity. To characterise such an entrustment as a joint custody or property given to the husband and the parents is wholly unintelligible to us. All the ingredients of an offence under Section 405 I.P.C. Were pleaded and a prima facie case for summoning the accused was made out. In such circumstances, the complainant should have been given an opportunity by the High Court to prove her case rather than quashing the complaint. Such an exercise of jurisdiction under Section 482 Cr.P.C. is totally unwarranted by law."
On the basis of the aforesaid case laws, it is very clear that the application under Section 482 Cr.P.C. for quashing of the proceedings of the complaint case is totally unwarranted and the respondent should be given an opportunity to prove his case. It is also for the applicants to satisfy the learned Magistrate at appropriate stage by taking his defence. In the circumstances, the application appears to have no force in itself and is liable to be rejected as such.
Accordingly, the application under Section 482 Cr.P.C. is rejected.
However, it is directed that in case, applicants appear and surrender before the court and make application for bail, their bail applications shall be expeditiously disposed off.
Date : 09/07/2012 Monika/1727/2000