Sunday, September 15, 2013

IF husb & co NEVER visited wife's town/ state, U can assail false 498a @state on jurisdiction ... ; also it is mandatory on the part of the Magistrate to postpone issue of process in a case where accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned.


if you go to / visit wife's place she can easily drag criminal jurisdiction to her state !! ...

however IF you NEVER visited her town/ state, you can assail false 498a in her state on jurisdiction 

Also note that After amendment made in 2005 to Section 202(1) Cr PC it is mandatory on the part of the Magistrate to postpone issue of process in a case where accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned.

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Notes
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  • Wife from Jarkhand, marries, lives in Bangalore, goes back to Jarkhand , files 498a @dhanbad, and drags all there. 
  • Husband and co trying jurisdictional quash 
  • lose as they have been to Jharkhand and (at some point or other) and wife alleges criminal actions when they have been there 
  • Though husband and co refute criminal actions / trespass / threats etc Jharkand HC is reluctant to quash
  • so the main positive takeaway for husbands is that IF YOU NEVER visited your wife's place AFTER START OF PROBLEMS, you can assail false 498a on jurisdictional grounds


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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE 
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Jharkhand High Court

Mayank P Trivedi And Ors vs State Of Jharkhand And Anr on 12 September, 2013

In the High Court of Jharkhand at Ranchi

Cr.M.P.no.701 of 2013

1. Mayank P. Trivedi

2. Smt. Nita Mayank Trivedi

3. Hitesh P. Trivedi ..............................Petitioners 

VERSUS

State of Jharkhand and another........Opposite Parties 

CORAM:HON'BLE MR.JUSTICE R.R.PRASAD

For the Petitioners : Mr.Pandey Neeraj Rai, Advocate 
For the O.P.No.2 : Mr.M.S.Mittal, Sr. Advocate

12.9.13. 

The entire criminal proceeding of Complaint Case bearing No.1623 of 2012 including the order dated 12.9.2012 whereby and whereunder cognizance of the offences punishable under Section 498(A) of the Indian Penal Code and also under Section 3/ 4 of the Dowry Prohibition Act has been taken against the petitioners by the Judicial Magistrate, Dhanbad is being sought to be quashed on the ground that the court which has taken cognizance lacks territorial jurisdiction. Before adverting to the submissions advanced on behalf of the parties, the case of the complainant needs to be taken notice of. It is the case of the complainant that the complainant having married in the year 2002 to Hitesh P. Trivedi (petitioner no.3) started living at her in-laws place at Bangalore. After few days of the marriage, accused persons started subjecting her to torture mentally as well as physically and was being subjected to assault also frequently. In spite of subjection to cruelty on account of non-fulfillment of the demand, she was living at her in-laws place with the hope that bad days would be over. The other day, when her family members came to her in-laws' place at the time of Shradh ceremony of her mother-in-law, not only her husband but father-in-law and also mother-in-law assaulted her severely. The accused persons used to hold out threat that unless and until demand is fulfilled, they will go on subjecting her to assault. On 30.3.2012 she was not only assaulted badly but was driven out of the house. She came to her parents house. On 12.7.2012 all the accused persons having made preparation for causing hurt to the complainant entered into the house for putting family members to fear to hurt. However, when alarm was raised, they fled away. Thereby it was alleged that the accused persons did commit offence under Section 498(A), 452 of the Indian Penal Code and also under Section 3/ 4 of the Dowry Prohibition Act. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

On such allegation, a complaint was lodged which was registered as Complaint Case No.1623 of 2012 in which when after holding enquiry, cognizance of the offence was taken, vide order dated 12.9.2012 it was challenged.

Challenge to the order taking cognizance seems to be on several grounds but the ground which was canvassed for quashing of the order taking cognizance is that all the overt acts allegedly committed by the accused persons are said to have been committed at Bangalore but the case was lodged at Dhanbad. Therefore, order taking cognizance is bad, in view of the ratio laid down by the Hon'ble Supreme Court in a case of Y.Abraham Ajith vs. Inspector of Police [(2004) 8 SCC 100], Manish Ratan and others vs. State of M.P and another [(2006) 8 SCC 372] and also in case of Bhura Ram and others vs. State of Rajasthan and another [2008 (3) JLJR (SC) 287].  http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

Mr.Pandey Neeraj Rai, learned counsel appearing for the petitioners did further submit that in order to create jurisdiction to the court at Dhanbad a fictitious statement has been made in the complaint petition that all the accused persons having made preparation for causing hurt to the complainant came to the house of the parents of the complainant at Dhanbad and committed house trespass. That statement does not find corroboration either form the statement made on solemn affirmation by the complainant or by the witnesses during enqiry as the complainant in her statement has stated in this regard that accused persons came to the house and held out threat that if she will go on prosecuting the case against her husband, they will kidnap her child whereas witness no.1 has simply stated about extending of threat whereas witness no.2 has stated that she will have to face consequence, if she does not give child to her husband. Therefore, the statement made by the complainant with respect to accrual of the cause of action at Dhanbad does not find corroboration with the statement made by the witnesses during enquiry under Section 202 of the Code of Criminal Procedure then the court in view of the recent amendment made under Section 202 should not have assumed jurisdiction for proceeding against the persons, who are residing outside of the jurisdiction of the court and consequently, he should not have taken cognizance of the offence. Further it was submitted that any statement relating to accrual of the cause of action at Dhanbad seems to be fictitious as it is not expected from the accused persons residing at Bangalore to come down to Dhanbad and to commit offence as has been alleged. Therefore, the court should have given anxious consideration that any statement with respect to accrual of cause of action is false or true. Since it apparently appears to be false, the court sould not have taken cognizance by holding that it does not have territorial jurisdiction to take cognizance of the offence, as whatever cause of action accrued it accrued at Bangalore.

Learned counsel in support of his submission has referred to decisions rendered in a case of Smt. Kamla Devi vs. State of Jharkhand [2010(4) JLJR340] and also in a case of Md. Naushad Alam vs. State of Jharkhand [2011 (2) JLJR 527] as well as in a case of Santosh Singh vs. State of Jharkhand and another [2010 (1) JLJR 217].

Thus, it was submitted that the court for the reason stated above, did commit illegality in taking cognizance of the offence by assuming jurisdiction onto himself and thereby the order taking cognizance is fit to be quashed. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

As against this, Mr.M.S.Mittal, learned Sr. counsel appearing for the opposite party no.2 submits that it is absolutely wrong on the part of the petitioners to say that no cause of action ever accrued at Dhanbad as there has been categorical statement relating to offence of trespass being committed at Dhanbad. The statement relating to commission of offence of trespass gets support from the statement of the witnesses examined during enquiry. It may be that the witnesses are at variance on some point but from the statement of the witnesses, it would appear that the accused persons had committed offence of house trespass/criminal trespass at Dhanbad and thereby the court did not commit any illegality in taking cognizance of the offence as all the necessary ingredients are there attracting offence under Section 498(A) of the Indian Penal Code as well as under Section 3/ 4 of the Dowry Prohibition Act. Before proceeding further in the matter, it be stated that under Section 190 of the Code of Criminal Procedure, a Magistrate can take cognizance of the offence either on receiving a complaint or on a police report or on information otherwise received. Where a complaint is presented before him, he needs to examine the complainant and his witness and can issue a process. However, if the Magistrate for the reasons to be recorded postpone the issue and may either enquire into the case himself or direct investigation to be made by Police Officer or by such other persons as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. The said enquiry is for the purpose of ascertaining the truth or falsehood of complaint, i.e. for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of the proceeding against the person concerned.

Further Section 203 does prescribe that if there is no sufficient ground for proceeding, the court may dismiss the complaint under Section 203. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

This is the cumulative purport of the provisions as contained in Sections 200, 202 and 203 which has been laid down in a case of Vadilal Panchal vs. Dutta Dulaji Ghadigaonkar and another (AIR 1960 SC 113).

Subsequently, similar view was reiterated in a case of Nirmaljit Singh Hoon vs. State of West Bengal and another [(1973) 3 SCC 753].

Much thereafter an amendment was made in Section 202 in the year 2005 by amendment Act, 2005. Amended provision of Section 202 reads as follows:

202. Postponement of issue of process - (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding;

What the amended provision does prescribe is that if the accused resides in an area beyond territorial jurisdiction of the Magistrate, it would be obligatory on the part of the Magistrate to postpone the issue so that he may inquire into the case himself or to direct investigation to be made by a police officer only for the purpose of finding out whether or not there has been sufficient ground for proceeding against the accused before issuing summons in such cases. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

Their Lordships in a case of Udai Shankar Awasti Vs. State of Uttar Pradesh and another [(2013) 2 SCC 435] has been pleased to hold that after the amendment made in the year 2005, Section 202(1) of the Code of Criminal Procedure it has become mandatory on the part of the Magistrate to postpone the issue of process in a case where accused resides in an area beyond the territorial jurisdiction of the Magistrate concerned.

Here in the instant case, the issue is not that the Magistrate without postponing the issue of process for holding inquiry has taken cognizance of the offence, rather from perusal of the order sheets of the court below which has been annexed, it does appear that after recording the statement of the complainant on solemn affirmation, the matter was fixed for inquiry under Section 202 of the Code of Criminal Procedure where two witnesses were examined on behalf of the complainant and thereby mandatory provision seems to have been complied with in this case.

However, the issue which has been raised is that unless the statement in the compliant or the statement made on solemn affirmation gets corroborated by the statement made by the witnesses examined under Section 202, the court would not be justified in issuing process particularly when the accused persons reside outside of the jurisdiction. In this context, one again needs to take notice of the statement made in regard to accrual of the cause of action at Dhanbad. The complainant in her complaint petition at paragraph 10 has stated that on 12.7.2007 at 8.30 P.M. all the accused persons committed house trespass having made preparation for causing hurt to the complainant and also for wrongfully restraining her. However, she in her statement made on solemn affirmation has stated that accused persons came to her house and held out threat of taking away of the child of the complainant, if she would be proceeding with the case. At the same time, C.W.1, who was examined during inquiry under Section 202 has stated that accused persons had held out threat at Jharia whereas C.W.2 has stated that the accused persons came and extended threat of giving child to her husband, otherwise she will have to face dire consequences. Of course all these statements do not seems to be consistent with each other but inconsistency seems to be on the factum leading to extending of the threat but there does not seems to be any inconsistency on the point that accused persons did come, entered into the house and held out threat. Therefore, for the purpose of deciding the issue relating to jurisdiction one may not ignore it though it may be available to the accused persons during trial to demolish the accusation. It would be worthwhile to note here that the court has not taken cognizance of the offence under Section 452 of the Indian Penal Code but that would hardly affect the matter pertaining to territorial jurisdiction as for deciding the issue it is to be seen as to whether any cause of action had accrued at the place where the complaint was filed. Further submission which has been advanced on behalf of the petitioners is that whatever statement has been made with respect to accrual of the cause of action at Dhanbad, i.e. fictitious and whenever it would be found to be fictitious, such statement may not give rise to cause of action to that place and this has been held in the cases referred to above, Santosh Singh vs. State of Jharkhand and another (supra), Smt. Kamla Devi vs. State of Jharkhand (supra) and also in a case of Md. Naushad Alam vs. State of Jharkhand (supra).  http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ 

No doubt it is true that Their Lordships have held so but that has been held in the facts and circumstances of the case. In a case of Santosh Singh vs. State of Jharkhand and another (supra), the Court disbelieved the statement with respect to accrual of the cause of action on account of telephonic threatening to the complainant for the reason that statement made in the complaint had never been supported either by the complainant in her solemn affirmation or by the witness. Further the Court did hold that the complainant had left home in the year 2000 whereas threat is said to have been extended in the year 2004. In such situation,it was held that there does not seem to be any reason on the part of the accused as to why they would be extending threat on telephone.

Similarly the Court in a case of Smt. Kamla Devi vs. State of Jharkhand (supra) disbelieved the statement relating to accrual of the cause of action for the reason that there does not seem to be any valid reason on the part of the accused to extend threat after ten months of the estrangement of the relationship between the spouses. That apart, those statements relating to cause of action were found to be quite vague. Likewise, the Court in a case of Md. Naushad Alam vs. State of Jharkhand (supra) did disbelieve the statement relating to accrual of the cause of action at the place where the complaint was filed for the reason that statement made in the complaint was never substantiated by the complainant on her solemn affirmation.

Contrary to the facts of the aforesaid cases, statements to the effect of accused persons coming to Jharia entering into the house, extending threat, are consistent. Further it be noted that only after four months of the separation, the accused persons are said to have come to the place of the complainant and allegedly extended threat by entering into the house, for the reason which had differently been given which cannot be discarded at least at this stage as in the fact and circumstances, it does not appear to inherently improbable, though during trial, it can be demolished. Looking it from another angle it be stated that whatever overt act is said to have been committed at Jharia that can be associated with maltreatment or humiliation which can easily be treated to be cruelty inflicted to the complainant at the hands of the accused persons and thereby cause of action gets accrued at Dhanbad by virtue of the provision as contained in Section 178(c ) of the Code of Criminal Procedure.

Accordingly, I do not find any merit in the submissions advanced on behalf of the petitioners.

Consequently, I do not find any illegality with the order taking cognizance.

Thus, this application stands dismissed.

( R.R. Prasad, J.)

ND/


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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist