Heard Mr.Vijay Prakash, learned Advocate alongwith Mr.Girish Chandra, learned counsel for the petitioners and Mr.Suresh Chandra Shukla, learned counsel for the respondent No.2 as well as Mr.Rajendra Kumar Dwivedi, learned Additional Government Advocate for the State.
The petitioners have challenged the proceedings of Case No.11032 of 2010, pending before the court of Chief Judicial Magistrate, Lucknow, arising out of case Crime No.72 of 2010, under Sections 498-A, 313, 323,406 and 506 IPC and ¾ Dowry Prohibition Act, Police Station Mahila Thana, Lucknow, inter alia on the ground of jurisdiction of the trial court.
The learned counsel for the petitioners drew the attention of this court towards the contents of the First Information Report and submitted that all the incidents, which have been alleged to have taken place at Gurgaon, State of Haryana, therefore, the learned Chief Judicial Magistrate sitting at Lucknow has no jurisdiction to take cognizance and proceed with the case.
In support of his submission he cited several decisions, which are being discussed here-in-below:-
Y. Abraham Ajith and others versus Inspector of Police, Chennai and another, reported in 2004(II), UPCr.R, page 315. In the aforesaid case the Hon'ble Supreme Court discussed the scope of Section 178 of the Code of Criminal Procedure and held that there is not even a whisper of allegations about any demand of dowry or commission of any act constituting an offence much less at Chennai. That being so, the logic of Section 178(c) of the Code relating to continuance of the offences cannot applied. In a sense it is a cause of action for initiation of proceeding against the accused, which consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law.
In the case of Manish Ratan and others versus Sate of M.P.and another, reported in 2007 (1) UP Cr.R page 282, the Hon'ble Supreme Court has again discussed the scope of Section 178 of the Criminal Procedure Code. The core question was whether the allegations made in the petition would constitute a continuing offence. In this case the father-in-law lodged the complaint with the Police Station Jabalpur alleging that the appellants have been ill treating his daughter and demanded dowry. The wife allegedly lodged another first information report against the appellants at the Police Station Datia. In the said complaint the place of incident was said to have taken place at Jabalpur. Subsequently, she was ill treated by her husband, father-in-law and mother-in-law and sister-in-law. So much that she left her house and saved her life by some means and reached in her Mama's house at Bhopal and from there she reached her house and since then she has been staying with her father. In the complaint there was nothing to show that any ill treatment was given to the complainant at Datia. Therefore, the Hon'ble Supreme court held that in case of this nature an offence cannot be held to be a continuing one, only because the complainant is forced to leave her matrimonial home.
In the case of Bhura Ram and others versus State of Rajasthan and another, reported in 2008 (61) ACC page 668, the Hon'ble Supreme Court held that the facts stated in the complaint discloses that the complainant left the place where she was residing with her husband and in-laws and came to the city of Sri Ganganagar, State of Rajasthan, and that all the alleged acts as per the complaint had taken place in the State of Punjab. Therefore, the court at Rajasthan does not have the jurisdiction to deal with the matter as no part of cause of action arose in Rajasthan.
In defence the learned counsel for the complainant (respondent No.2) also cited some decisions, which are referred here-in-below:-
In the case of Prabhat Ranjan Pandey and others versus State of U.P. And others, reported in 1998 (37) ACC page 860, the Division Bench of this court held that in a case for an offence under Section 498-A IPC and ¾ Dowry Prohibition Act complaint can be filed at any place where the cause of action arose or continued, where the consequences ensued and if harassment and cruelty was continued from the house of her in-laws to the house of her parents, then the complaint can be filed at any of the two places at the sweet-will of the complainant.
In the case of Deepak Joshi and others versus State of U.P. And another, reported in 2009 (1) JIC 600 (All), this court has held that the offence under Section 498-A IPC is a continuing offence. Wife can file complaint either at the place where dowry was demanded or where cruelty was committed and also at place where aggrieved wife was forced to live.
In the case of Satvinder Kaur versus State (Govt. of NCT of Delhi) and another, reported in 2000 (1) JIC 1 (SC), the Hon'ble Supreme Court discussed the scope of Section 177 and 178 of the Code of Criminal Procedure. The relevant paragraphs 11 and 12 are reproduced hereunder:-
"11.Chapter XIII of the Code provides for "jurisdiction of the Criminal Courts in inquiries and trial." It is to be stated that under the said Chapter there are various provisions which empowers the Court for inquiry or trial of a criminal case and that there is no absolute prohibition that the offence committed beyond the local territorial jurisdiction cannot be investigated, inquired or tried. This would be clear by referring to Sections 177 and 188. For our purpose, it would be suffice to refer only to Sections 177 to 178 which are as under:
"177. 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.
"178. 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 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."
12. A reading of the aforesaid sections would make it clear that Section 177 provides for "ordinary" place of inquiry in trial. Section 178 inter alia provides for place of inquiry or trial when it is uncertain in which of several local areas an offence was committed or where the offence was committed partly in one local area and partly in other and where it consisted of several acts done in different local areas, it could be inquired into or tried by a Court having jurisdiction over any of such local areas. Hence, at the stage of investigation, it cannot be held that SHO does not have territorial jurisdiction to investigate the crime.
The Hon'ble Supreme Court also held in paragraph 14 that "the legal position is well settled that if an offence is disclosed the Court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed."
In the case of Asit Bhattacharjee versus M/s.Hanuman Prasad Ojha and others, reported in 2007 (3) JIC 258 (SC), the Hon'ble Supreme court in paragraph 22 of the judgment has discussed the necessary ingredients for proving a criminal offence. Relevant part of paragraph 22 is quoted here-in-below:-
"22. The necessary ingredients for proving a criminal offence must exist in a complaint petition. Such ingredients of offence must be referable to the places where the cause of action in regard to commission of offence has arisen. A cause of action as understood in its ordinary parlance may be relevant for exercise of jurisdiction under clause (2) of Article 226 of the Constitution of India but its definition stricto sensu may not be applicable for the purpose of bringing home a charge of criminal offence. The application filed by the appellant under Section 156(3) of the Code of Criminal Procedure disclosed commission of a large number of offences. The fact that major part of the offences took place outside the jurisdiction of the Chief Metropolitan Magistrate, Calcutta is not in dispute. But, even if a part of the offence committed by the respondents related to the appellant-Company was committed within the jurisdiction of the said Court, the High Court of Allahabad should not have interfered in the matter........"
In addition to the aforesaid plea of the respondents the learned Additional Government Advocate Mr.Rajendra Kumar Dwivedi, cited a case decided by the Hon'ble Supreme Court i.e. Trisuns Chemical Industry versus Rajesh Agarwal and others reported in 1999 (8) SCC 686. In this case the Hon'ble Supreme Court held that it is an erroneous view that the Magistrate taking cognizance of an offence must necessarily have territorial jurisdiction to try the case as well. The relevant paragraphs 11, 12 and 13 are reproduced hereunder:-
"11.It is an erroneous view that the Magistrate taking cognizance of an offence must necessarily have territorial jurisdiction to try the case as well. Chapter XIII of the code relates to jurisdiction of the criminal courts "in enquiries and trials". That chapter contains provisions regarding the place where the enquiry and trial are to take place. Section 177 says that:
"177.Every offence shall ordinarily be enquired into and tried by a court within whose local jurisdiction it was committed." But Section 179 says that when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the place of enquiry and trial can as well be in a court "within whose local jurisdiction such thing has been done or such consequence has ensued". It cannot be overlooked that the said provisions do not trammel the powers of any court to take cognizance of the offence. The power of the court to take cognizance of the offence is laid in Section 190 of the Code. Sub-sections (1) and (2) read thus:
"190.(1) Subject to the provisions of this chapter, any Magistrate of the First Class, and any Magistrate of the Second Class specially empowered in this behalf under sub-section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c ) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the Second Class to take cognizance under sub-section (1) of such offences as are within his competence to enquire into or try."
12. Section 193 imposes a restriction on the Court of Session to take cognizance of any offence as a court of original jurisdiction. But "any" Magistrate of the First Class has the power to take cognizance of any offence, no matter that the offence was committed within his jurisdiction or not.
13. The only restriction contained in Section 190 is that the power to take cognizance is "subject to the provisions of this chapter". There are 9 sections in Chapter XIV most of which contain one or other restriction imposed on the power of a First Class Magistrate in taking cognizance of an offence. But none of them incorporates any curtailment on such powers in relation to territorial barrier. In the corresponding provision in the old Code of Criminal Procedure (1898) the commencing words were like these: "Except as hereinafter provided....." Those words are now replaced by "Subject to the provisions of this chapter...." Therefore, when there is nothing in Chapter XIV of the Code to impair the power of a Judicial Magistrate of the First Class taking cognizance of the offence on the strength of any territorial reason it is impermissible to deprive such a Magistrate of the power to take cognizance of an offence- of course, in certain special enactments special provisions are incorporated for restricting the power of taking cognizance of offences falling under such acts. But such provisions are protected by non obstante clauses. Anyway that is a different matter."
With the aforesaid observations the Hon'ble Supreme court ultimately held that the jurisdictional aspect becomes relevant only when the question of enquiry or trial arises. It is therefore, fallacious thinking that only a Magistrate having jurisdiction to try the case has the power to take cognizance of the offence. If he is a Magistrate of the First Class his power to take cognizance of the offence is not impaired by territorial restrictions. After taking cognizance he may have to decide as to the court which has jurisdiction to enquire into or try the offence and that situation would reach only during the post-cognizance stage and not earlier.
In light of the aforesaid dictum of the Hon'ble Supreme Court I do not need to discuss the factual aspect of the matter for the reason that the case in hand is at the stage of post cognizance. The Investigating Officer has already submitted the police report and the learned Chief Judicial Magistrate has taken cognizance, therefore, at this stage only on the factual aspect that the offence did not take place within the territorial jurisdiction of the Chief Judicial Magistrate, Lucknow, I do not feel it appropriate to interfere in the proceedings of the court below. Therefore, the petition is dismissed.
Order Dated:25.7.2011 Banswar