Heard Mr.M.K.Srivastava, learned counsel for the petitioners and Mr.Mohd.Tabrez Iqbal, learned counsel for the opposite party No.3 as well as Mr.Rajendra Kumar Dwivedi, learned Additional Government Advocate for the opposite parties 1 and 2.
Counter affidavit as well supplementary counter affidavit filed by the State is taken on record.
The petitioners have challenged the proceedings of case No.949 of 2010, pending before the court of Special Chief Judicial Magistrate, Customs, Lucknow for trial of offences committed under Sections 498-A, 506 of the Indian Penal Code and ¾ Dowry Prohibition Act, Police Station Ghazipur, district Lucknow, arising out of case crime No.1070 of 2009.
The learned counsel for the petitioners invited the attention of this court towards the contents of the First Information Report and submitted that no offence has been reported to have been committed within the territorial jurisdiction of Lucknow, rather allegedly it took place at Bilaspur, Chattisgarh, therefore, the learned Magistrate at Lucknow lacks jurisdiction.
In support of his submission he cited some decisions of the Hon'ble Supreme Court as well as of this court, which are referred to hereunder:-
(1) Sujata Mukherjee (Smt.) versus Prashant Kumar Mukherjee reported in (1997) 5 SCC 30.
In the aforesaid case the appellant claimed the cruel treatment by the respondents persistently at Raigarh and also at Raipur, consequential to the series of the incidents taking place at Raigarh. The High Court held that several isolated events had taken place at Raigarh and one isolated incident had taken place at Raipur, hence, the criminal case, which was filed at Raipur was only maintainable against the respondent husband against whom some overt act at Raipur was alleged, but such case was not maintainable against the other respondents. The Hon'ble Supreme Court held that it appears that the complaint reveals a continuing offence of maltreatment 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. Section 178 clause (c) contemplates that "where an offence is a continuing one, and continues to be committed in more local areas" then such offence can be tried by a court having jurisdiction over any of such local areas.
(2) Manish Patan & others versus State of M.P. And another, reported in 2007 (1) JIC 269 (SC).
In this case also the question of jurisdiction arose. The Hon'ble Supreme Court after dealing with the facts of the case ultimately found that no part of cause of action arose within the territorial limits of the jurisdiction of Datia court, therefore, it set aside the order passed by the High Court and transferred the criminal case pending in the court of Chief Judicial Magistrate, Datia to the court of Chief Judicial Magistrate, Jabalpur.
(3) Dr.(Mrs.) Sarojini Arawattigi and another versus State of U.P. And another, reported in 2007 (3) JIC 436 (All).
In the aforesaid case the Hon'ble Supreme Court discussed the scope of Section 177 of the Code of Criminal Procedure, which lays down the place where the criminal case can be prosecuted. According to it, every offence shall be inquired into and tried by a court within whose local jurisdiction it was committed. The Hon'ble Supreme Court also discussed Section 178(c) of the Code of Criminal Procedure. The Hon'ble Supreme Court observed that at no stage the applicants demanded any dowry or harassed the lady at Kanpur for non-fulfillment of dowry, therefore, it quashed the proceedings pending in the court of Chief Metropolitan Magistrate, district Kanpur Nagar and opened to the complainant to take necessary legal action against the applicant in appropriate forum.
Upon perusal of the contents of the First Information Report I find that the complainant has stated that the petitioners have abused and tortured her at several times at Lucknow and also threatened to divorce her. In continuation of it, he has also filed a suit for divorce at Varanasi, which has been stayed by this court. When she received information about the second marriage of her husband with another lady, namely, Renu Yadav, daughter of Shri Sudama Yadav, resident of district Ghazipur, she being at Lucknow asked about it from her husband through mobile phone, who accepted it very anxiously and again by threatening that whatever she wants to do, she may do. Thus, from the facts of the case part of offence committed at Lucknow, cannot be denied. It also establishes that the offence continued at several times at several places including Lucknow. Thus, this case very much attracts the provisions of Section 178 (c ) of the Code of Criminal Procedure, therefore, the cases cited by the petitioners in their favour do not come in the way of learned Magistrate to proceed with the case at Lucknow.
Apart from above, the learned Additional Government Advocate pointed out the decisions of the Hon'ble Supreme Court rendered in the case of Trisuns Chemical Industry versus Rajesh Agarwal and others, reported in (1999) 8 SCC 686, in which the Hon'ble Supreme Court has held that the jurisdictional aspect becomes relevant only when the question of enquiry or trial arises, the Magistrate's power to take cognizance of offence is not impaired by territorial restriction. 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 facts as well as the law laid down by the courts dealing with the same question as well as the provisions of the Code of Criminal Procedure, I find that the learned Magistrate at Lucknow has very much jurisdiction to try with the case. Therefore, no interference is warranted.
The petition lacks merit and is dismissed.
However, it is provided that if the petitioners appear before the court below and move an application for bail within four weeks, the same shall be considered and disposed of by the courts below expeditiously. Since the petitioner No.2 is a lady her application for bail shall be considered under the privilege clause provided under Section 437 of the Code of Criminal Procedure and disposed of, if possible on the same day by the courts below.
For four weeks, no coercive action shall be taken against the petitioners.
Order Dated:16.5.2011 Banswar