THE HON’BLE SRI JUSTICE C.PRAVEEN KUMAR
Tr.Crl.P.No.199/2012
ORDER:
The petitioners who are accused 1 to 6 filed the transfer present criminal petition seeking transfer of CC No.1249/2009 from the Court of I Additional Chief Metropolitan Magistrate, Visakahpatnam, to a court of competent jurisdiction at Hyderabad.
2. The averments in the charge sheet are as under: The allegations in the charge sheet are as under: A-1 is the husband of the second respondent. A-2 and A-3 are the parents of A-1. A-5 and A-6 are the cousins of A-1 while A4 is an another son of A-2 and A-3. The marriage of the second respondent with the first accused took place on 9-5-2007 at Visakhapatnam. At the time of marriage, the parents of the second respondent gave an amount of Rs.10 lakhs towards dowry and other presentations like gold ring, motor cycle, furniture worth Rs.50,000/- and a sum of Rs.1,01,116/- towards adapaduchu lanchanams. On 21-6-2007 the second respondent joined A-1 and lived happily for few days. It is alleged that after reaching Hyderabad on 25-6-2007 where A-1 was working as Junior Telecom Officer, the first accused at the instigation of A-2 to A-6 started harassing the informant by demanding her to get additional dowry of Rs.30 lakhs from her parents towards purchase of a flat. A-3 is alleged to have stated that A-1 would have got a dowry of Rs.40 lakhs had he married another girl. On 24-8-2007 when the second respondent went to Amalapuram for performing Varalakshmi Vratham, A-3 is alleged to have asked her to give her gold ornaments. When the second respondent refused to part with her property, she was beaten up by A-3. It is further alleged that A-4 to A-6 who were residing with A-1 at Hyderabad also used to instigate A-1 to demand additional dowry of Rs.30 lakhs. The allegations in the charge sheet would further disclose that on 13-10-2007 A-1 beat L.W.1 for no reason. Seeing the incident, L.W.4 took L.W.1 to his house and from there she went to her parents’ house at Visakhapatnam. Mediation took place which made L.W.1 to join A-1. A week thereafter, A-1 again started harassing the second respondent/informant to get an additional dowry of Rs.30 lakhs. On 2-2-2008 all the accused are alleged to have threatened L.W.1 stating that if the dowry amount is not arranged A-1 would marry another lady. A-2 and A-3 used to call the second respondent to fulfil their desires. Since the harassment in the hands of the accused increased day by day L.W.5 took L.W.1 to his house. The accused are alleged to have gone to the house of L.W.5 and threatened him for giving shelter to the second respondent (L.W.1). In view of the constant harassment in the hands of the accused, the second respondent filed a private complaint before I Additional Chief Metropolitan Magistrate, Visakhapatnam, which was forwarded to the police under section 156 (3) Cr.P.C., The police registered it as Cr.No.658/2008 and after completing the investigation filed a charge sheet.
3. The learned counsel for the petitioners submits that the Court at Visakahaptnam has no jurisdiction to try the offences. According to her, subsequent to the transfer of one case from Hyderabad to Visakahpatnam, there were serious disputes between the parties and as such seeks transfer of the case to Hyderabad. The learned counsel for the petitioners would submit that as the second petitioner is an heart patient and petitioners 4 to 6 are working in private firms at Hyderabad and it is very difficult for them to attend the court at Visakhapatnam on every date of adjournment. Hence, seeks transfer of the case from Visakahapatnm to Hyderabad.
4. The learned counsel for the second respondent opposed the application.
5. The material available on record would indicate that the respondent filed OP No.1058/2010 (old OP No.1129/2008) in the Court of Family Judge at Visakhapatnam under section 7 ( c ) of the Family Courts Act seeking return of dowry and other ‘sare saman’. Apart from that case, DVC No.31/2010 filed by the second respondent is pending in the Court of III Metropolitan Magistrate, Visakahaptnam. On receiving summons in OP, the first petitioner herein filed Tr.CMP No.242/2009 seeking transfer of OP from the Family Court at Visakahaptnam to the Family Court at Hyderabad. By an order dt. 29-7-2009, the said application was allowed. Challenging the same, the second respondent filed SLP ( c) No.27545/2009 (Civil Appeal No.3869/2010) before the Apex Court. By an order dt. 26-4-2010, the Apex Court after referring to the cases filed by the second respondent allowed the appeal and set aside the order of the High Court dt. 29-7-2009 transferring the case to Hyderabad. It may be relevant to extract the relevant portion of the order passed by the Apex Court, which is as under:
“..The appellant does not dispute that she was earlier residing and employed at Hyderabad. When she was assaulted by her husband The High Court has also referred to the fact that Respondent Nos. 2 and 3 will have to travel to Visakhapatnam to defend the case a From the above, it is clear that the Apex Court has considered the plea of difficulty in attending the court at Visakahapatnam and rejected the same. Hence, the request of the petitioners in seeking transfer of the case on the said ground cannot be accepted.
6. The second ground raised by the learned counsel for the petitioners is with regard to the territorial jurisdiction of the Court at Visakhapatnam to try the case against the petitioners. Before deciding the said issue, it would be relevant to refer to few cases on this issue.
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7. In CHITTE SIDDAIAH AND CHITTE SUJATA , this Court after referring to various judgments held as under:
“In view of the principles laid down in the above decisions, it cannot be held that merely because the complainant was forced to take shelter at her parents' house at Proddatur as a consequence of the cruelty, she was allegedly subjected to by the accused, she would not be entitled to give a complaint to the police at Prodatur or that the learned Magistrate of Proddatur has no jurisdiction to take cognizance of the offence. The harassment of the complainant must be deemed to have been continued even after she shifted to her parents house at Proddatur, which she was forced to only to escape from the alleged acts of cruelty by the accused, she cannot be expected to file a complaint at an alien place Nandyal and fight her legal battle against the accused, who are in fact, residing at Nandyal. The valuable rights of a helpless and hapless victim woman and her fight for justice cannot be defeated by narrow interpretation of the provisions of law relating to cause of action and jurisdiction by resorting to a pedantic and technical approach.” (para 11)
8. In SHIVKUMAR GANESHA MURTHY V. STATE OF ANDHRA PRADESH [2] , this Court held that the continued desertion by the first petitioner on the ground of failure to meet the demand of additional dowry, amounts to continuance of the harassment within the meaning of Section 498-A IPC. The Court held that the alleged offence is therefore a continuing one and has not ceased to exist after she was driven out of the matrimonial home.
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9. In BASHEER MOAZAM V. STATE OF AP , a leaned single Judge of this Court held that a report for an offence punishable under section 498-A IPC can be lodged by the aggrieved wife/woman at the place where the demand for dowry or property ismade or at a place where the woman was forced to live on account of such cruelty.
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10. In SUJATA MUKHERJEE (SMT) V. PRASHANT KUMAR MUKHERJEE the Apex Court while dealing with a similar situation held that the court within whose jurisdiction the wife was living after desertion would get jurisdiction to entertain the complaint. It was a case where the wife of the accused was subjected to harassment and ill-treatment not only at her in-laws’ house but also at her parents house by her husband. After referring to section 178 Cr.P.C., the Apex Court held as under:
“Basing reliance on Section 178 of the Code, in particular clauses (b) and (c), found that in view of allegations in the complaint that the offence was a continuing one having been committed in more local areas and one of the local areas being Raipur, the learned Magistrate at Raipur had jurisdiction to proceed with the criminal case instituted in such court. We have taken into consideration the complaint filed by the appellant and it appears to us 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.”
11. In SUNITHA KUMARI KASHYAP V. STATE OF BIHAR [5] , the Apex Court dealt with a situation where the wife was ill treated at Ranchi and thereafter sent to her parents house at Gaya with a threat of dire consequences in case their demand for dowry was not met. The averments in the complaint disclose that unless her father gives his house at Gaya she will not be taken back to her matrimonial home at Ranchi. It further discloses that with a view to meet the said demand, her husband brought her to Gaya and left her there with a warning that till his demands are met she has to stay at Gaya Only. In view of the fact that the wife was forced to stay at Gaya, as a result of continuous harassment at Ranchi, the Apex Court held that SDJM at Gaya had jurisdiction to proceed with the criminal case.
12. In the instant case, the marriage of the informant with the first accused took place at Visakhapatnam. At the time of writing the lagnapathrika at Visakhapatnam, the parents of the informant gave dowry of Rs.5,00,000/- to A-2. At the time of the marriage at Visakhapatnam, the parents of the second respondent gave dowry of Rs.10 lakhs. The informant was harassed to get Rs.30 lakhs for purchasing a flat. Unable to bear the harassment, the informant was forced to leave the matrimonial home and stay at her parents place in Visakhapatnam. The police filed a charge sheet for the offences punishable under section 498-A IPC and sections 4 and 6 of the Dowry Prohibition Act. In view of the principles laid down in the cases referred to above, and taking into consideration the averments made in the charge sheet, Section 161 Cr.P.C. statement of L.W.1, more particularly the fact of payment of dowry at the time of marriage at Visakhapatnam, I am of the view that the Court at Visakahpatnam will get jurisdiction to try the offence.
13. Having regard to the facts and circumstances of the case, this court is of the view that there are no merits in the transfer criminal petition and the same is liable to be dismissed.
14. The Tr. Criminal Petition is accordingly dismissed. Miscellaneous Petitions, if any, shall stand closed.
C.PRAVEEN KUMAR,J
Dt. 22-1-2014 kmr
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2008 (1) ALD (CRL.) 574 (AP) 2008(1) ALD (CRL.) 364 (AP) 2005(2) ALD (CRL.) 438 (1997) 5 SCC 30 (2011) 11 SCC 301