Sunita Kumari Kashyap vs State Of Bihar And Anr

Sunita Kumari Kashyap .... Appellant(s)

Versus

State of Bihar & Anr. .... Respondent(s)

WITH

CRIMINAL APPEAL No. 918 OF 2011

(Arising out of S.L.P. (Crl.) No. 8079 of 2010)

J U D G M E N T

P. Sathasivam, J.

1) Leave granted.

2) The only issue for consideration in both the appeals is

whether criminal proceedings initiated by the appellant herein

at Gaya against her husband and his relatives are

maintainable or not for lack of jurisdiction?

1 3) Brief facts:

(a) The appellant herein got married to Sanjay Kumar Saini -

respondent No.2 herein, on 16.04.2000 as per the Hindu rites

and ceremonies at Gaya. According to the appellant, at the

time of marriage, her father gifted all the household utensils,

Almirah, Double Bed, Dining Table, Fridge, Television and an

amount of Rs. 2,50,000/- in cash. In addition to the same,

her father spent so much money to solemnize the marriage

and for gifts to other family members of her husband. In spite

of the same, immediately after the marriage, she was blamed

for bringing less dowry by her in-laws and they started

harassing and torturing her. Her husband also used to

support his family members to torture her. It is her further

grievance that her husband demanded an additional amount

of Rs. 4 lakhs from her parents for renovation of their house at

Ranchi. When she was pregnant, she was forcibly taken out of

her matrimonial home at Ranchi and brought to her parental

home at Gaya. After giving birth to a girl child the

circumstances became even worse and everyone started

blaming her that she had brought an additional burden on

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them. After some time, her husband came out with a new

demand that unless her father gives his house at Gaya to him

she will not be taken back to her matrimonial home at Ranchi.

Having continuous torture and unbearable nature of

treatment by her husband and in-laws for years and years,

having no other option, the appellant lodged a First

Information Report (in short "FIR") being No. 66 of 2007 under

Sections 498A and 406 read with Section 34 of Indian Penal

Code (in short "IPC) and Sections 3 and 4 of the Dowry

Prohibition Act, 1961 (in short "D.P. Act") at Magadh Medical

College Police Station, Gaya.

b) The Chief Judicial Magistrate, after perusal of the charge-

sheet, found a prima facie case against the accused persons,

accordingly, took cognizance of offences punishable under

Sections 498A and 406 read with Section 34 IPC and Sections

3 and 4 of the D.P. Act against all of them and transferred the

case to the Court of sub-Divisional Judicial Magistrate, Gaya

for trial. Though an objection was raised stating that the

Court at Gaya has no jurisdiction, the learned Magistrate,

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after considering all the relevant materials including the

allegations in the complaint, rejected the said objection.

c) Aggrieved by the said order, the accused persons

preferred Criminal Miscellaneous No. 42478 of 2009 before the

High Court of Judicature at Patna. By order dated

19.03.2010, the High Court found that the proceedings at

Gaya are not maintainable for lack of jurisdiction and quashed

the entire proceedings in Magadh Medical College Police

Station Case No. 66 of 2007 with liberty to the appellant

herein to file the same in appropriate Court. Following the

said order, the High Court on 29.04.2010 allowed Criminal

Miscellaneous No. 45153 of 2009 filed by Sanjay Kumar Saini

- the husband (respondent No.2 herein) and quashed the

criminal proceedings lodged against him.

d) Aggrieved by the impugned orders passed by the High

Court on 19.03.2010 in Criminal Misc. Case No. 42478 of

2009 and 29.04.2010 in Criminal Misc. Case No. 45153 of

2009, the appellant-wife has filed the above appeals before

this Court by way of special leave petitions.

4 4) Heard Mr. Vivek Singh, learned counsel for the appellant

and Mr. S.B. Sanyal, learned senior counsel for respondent

No.2 and Mr. Gopal Singh, learned counsel for respondent

No.1 - State.

5) Inasmuch as the issue is confined to territorial

jurisdiction about the criminal proceedings initiated by the

appellant-wife, there is no need to go into other factual

aspects. Since the SDJM has found that the Court at Gaya

has jurisdiction to try the accused persons for offences

punishable under Sections 498A and 406 read with Section 34

IPC and Sections 3 & 4 of the D.P. Act and the High Court

reversed the said decision and found that the proceedings at

Gaya are not maintainable for lack of jurisdiction, it is

desirable to refer the relevant provisions and the contents of

FIR.

6) Chapter XIII of the Code of Criminal Procedure, 1973 (in

short "Code") deals with jurisdiction of the criminal courts in

inquiries and trials. Sections 177-179 are relevant which are

as follows:

5 "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 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.

179. Offence triable where act is done or consequence

ensues. When an act is an offence by reason of anything

which has been done and of a consequence which has

ensued, the offence may be inquired into or tried by a Court

within whose local jurisdiction such thing has been done or

such consequence has ensued."

From the above provisions, it is clear that the normal rule is

that the offence shall ordinarily be inquired into and tried by a

court within whose local jurisdiction it was committed.

However, when it is uncertain in which of several local areas

an offence was committed or where an offence is committed

partly in one local area and partly in another or where an

offence is a continuing one, and continues to be committed in

more than one local area and takes place in different local

areas as per Section 178, the Court having jurisdiction over

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any of such local areas is competent to inquire into and try the

offence. Section 179 makes it clear that if anything happened

as a consequence of the offence, the same may be inquired

into or tried by a Court within whose local jurisdiction such

thing has been done or such consequence has ensued.

7) Keeping the above provisions in mind, let us consider the

allegations made in the complaint. On 17.10.2007, Sunita

Kumari Kashyap - the appellant herein made a complaint to

the Inspector In-charge, Magadh Medical College Police

Station, Gaya. In the complaint, the appellant, after narrating

her marriage with Sanjay Kumar Saini, respondent No.2

herein on 16.04.2000 stated that what had happened

immediately after marriage at the instance of her husband and

his family members' ill-treatment, torture and finally

complained that she was taken out of the matrimonial home at

Ranchi and sent to her parental Home at Gaya with the threat

that unless she gets her father's house in the name of her

husband, she has to stay at her parental house forever. In the

said complaint, she also asserted that her husband

pressurized her to get her father's house in his name and

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when she denied she was beaten by her husband. It was also

asserted that after keeping her entire jewellery and articles, on

24.12.2006, her husband brought her at Gaya and left her

there warning that till his demands are met, she has to stay at

Gaya and if she tries to come back without meeting those

demands she will be killed. It was also stated that from that

date till the date of complaint, her in-laws never enquired

about her. Even then she called them but they never talked to

her. Perusal of the entire complaint, which was registered as

an FIR, clearly shows that there was ill-treatment and cruelty

at the hands of her husband and his family members at the

matrimonial home at Ranchi and because of their actions and

threat she was forcibly taken to her parental home at Gaya

where she initiated the criminal proceedings against them for

offences punishable under Sections 498A and 406/34 IPC and

Sections 3 and 4 of the D.P. Act. Among the offences, offence

under Section 498A IPC is the main offence relating to cruelty

by husband and his relatives. It is useful to extract the same

which is as under:

8 "498A. Husband or relative of husband of a woman

subjecting her to cruelty - Whoever, being the

husband or the relative of the husband of a woman,

subjects such woman to cruelty shall be punished

with imprisonment for a term which may extend to

three years and shall also be liable to fine.

Explanation: For the purpose of this section, "cruelty"

means-

(a) any wilful conduct which is of such a nature as is

likely to drive the woman to commit suicide or to

cause grave injury or danger to life, limb or health

(whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment

is with a view to coercing her or any person related to

her to meet any unlawful demand for any property or

valuable security or is on account of failure by her or

any person related to her to meet such demand."

8) Similar allegations as found in the complaint in the case

on hand with reference to the offences punishable under

Sections 498A, 406/34 IPC were considered by this Court in

the following decisions:

i) In Sujata Mukherjee (Smt) vs. Prashant Kumar

Mukherjee, (1997) 5 SCC 30, similar issue was considered by

this Court and found that clause (c) of Section 178 of the Code

is attracted and the Magistrate at wife's parents' place has also

jurisdiction to entertain the complaint. In the said decision,

wife was the appellant before this Court and the respondents

were the husband, parents-in-law and two sisters-in-law of the

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appellant Sujata Mukherjee. The gist of the allegation of the

appellant, Sujata Mukherjee was that on account of dowry

demands, she had been maltreated and humiliated not only in

the house of her in-laws at Raigarh but as a consequence of

such events, the husband of the appellant had also come to

the house of her parents at Raipur and assaulted her. On

behalf of the respondents therein, it was contended before the

learned Chief Judicial Magistrate, Raipur that the criminal

case was not maintainable before the said learned Chief

Judicial Magistrate because the cause of action took place

only at Raigarh which was outside the territorial jurisdiction of

the learned Magistrate at Raipur. A prayer was also made to

quash the summons issued by the learned Chief Judicial

Magistrate by entertaining the said complaint of Smt

Mukherjee. As the Chief Judicial Magistrate was not inclined

either to quash the summons or to transfer the criminal case

to the competent court at Raigarh, the criminal revision

petitions were filed before the High Court, one by all the five

respondents and another by four of the respondents excluding

the husband presumably because there was specific allegation

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against the husband that the husband had also gone to

Raipur and had assaulted the appellant and as such the

husband could not plead want of territorial jurisdiction. Both

the said criminal revision cases were disposed of by a common

order dated 31.08.1989 by the High Court holding that the

case against the husband of the appellant alone is

maintainable and in respect of other respondents related to

the incidents taking place at Raigarh, hence, the criminal case

on the basis of complaint made by the appellant is not

maintainable at Raipur. The said order of the High Court was

challenged by the appellant-Sujata Mukherjee in this Court. It

was submitted that it will be evident from the complaint that

the appellant has alleged that she had been subjected to cruel

treatment persistently at Raigarh and also at Raipur and

incident taking place at Raipur is not an isolated event, but

consequential to the series of incidents taking place at

Raigarh. Therefore, it was contended that the High Court was

wrong in appreciating the scope of the complaint and

proceeding on the footing that several isolated events had

taken place at Raigarh and one isolated incident had taken

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place at Raipur. This Court 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. Ultimately, accepting the stand of

the appellant, this Court held as under:

"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."

ii) In State of M.P. vs. Suresh Kaushal and Another,

(2003) 11 SCC 126, again in a similar circumstance,

considering the provisions of Section 179 with reference to the

complaint relating to the offences under Section 498A read

with Section 34 IPC, this Court held as under:

"6. The above Section contemplates two courts having

jurisdiction and the trial is permitted to take place in any

one of those two courts. One is the court within whose local

jurisdiction the act has been done and the other is the court

within whose local jurisdiction the consequence has ensued.

When the allegation is that the miscarriage took place at

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Jabalpur it cannot be contended that the court at Jabalpur

could not have acquired jurisdiction as the acts alleged

against the accused took place at Indore."

9) Mr. S.B. Sanyal, learned senior counsel appearing for the

respondents fairly stated that there is no dispute about the

jurisdiction of the Court at Gaya insofar as against the

husband, however, in respect of other relatives of the husband

in the absence of any act at Gaya, the said Court has no

jurisdiction and if at all, the wife has to pursue her remedy

only at Ranchi. In support of his contention, he relied on a

decision of this Court in Y. Abraham Ajith and Others vs.

Inspector of Police, Chennai and Another, (2004) 8 SCC 100

in particular, paragraph 12 of the said decision which reads as

under:

"12. The crucial question is whether any part of the cause of

action arose within the jurisdiction of the court concerned.

In terms of Section 177 of the Code, it is the place where the

offence was committed. In essence it is the cause of action

for initiation of the proceedings against the accused."

It is true that Section 177 of the Code refers to the local

jurisdiction where the offence is committed. Though the

expression "cause of action" is not a stranger to criminal

cases, in view of Sections 178 and 179 of the Code and in the

light of the specific averment in the complaint of the appellant

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herein, we are of the view that the said decision is not

applicable to the case on hand.

10) Mr. Sanyal also relied on a decision of this Court in

Bhura Ram and Others vs. State of Rajasthan and Another,

(2008) 11 SCC 103 wherein following the decision in Y.

Abraham Ajith and Others (supra), this Court held that

"cause of action" having arisen within the jurisdiction of the

court where the offence was committed, could not be tried by

the court where no part of offence was committed. For the

same reasons, as mentioned in the earlier paragraph, while

there is no dispute as to the proposition in view of the fact that

in the case on hand, the offence was a continuing one and the

episode at Gaya was only a consequence at the continuing

offence of harassment and ill-treatment meted out to the

complainant, clause (c) of Section 178 is attracted. In view of

the above reason, both the decisions are not applicable to the

facts of this case and we are unable to accept the stand taken

by Mr. Sanyal.

11) We have already adverted to the details made by the

appellant in the complaint. In view of the specific assertion by

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the appellant-wife about the ill-treatment and cruelty at the

hands of the husband and his relatives at Ranchi and of the

fact that because of their action, she was taken to her parental

home at Gaya by her husband with a threat of dire

consequences for not fulfilling their demand of dowry, we hold

that in view of Sections 178 and 179 of the Code, the offence

in this case was a continuing one having been committed in

more local areas and one of the local areas being Gaya, the

learned Magistrate at Gaya has jurisdiction to proceed with

the criminal case instituted therein. In other words, the

offence was a continuing one and the episode at Gaya was

only a consequence of continuing offence of harassment of ill-

treatment meted out to the complainant, clause (c) of Section

178 is attracted. Further, from the allegations in the

complaint, it appears to us that it is a continuing offence of ill-

treatment and humiliation meted out to the appellant in the

hands of all the accused persons and in such continuing

offence, on some occasion all had taken part and on other

occasion one of the accused, namely, husband had taken part,

therefore, undoubtedly clause (c) of Section 178 of the Code is

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clearly attracted.

12) In view of the above discussion and conclusion, the

impugned order of the High Court holding that the

proceedings at Gaya are not maintainable due to lack of

jurisdiction cannot be sustained. The impugned order of the

High Court dated 19.03.2010 in Criminal Misc. No. 42478 of

2009 and another order dated 29.04.2010 in Criminal Misc.

Case No. 45153 of 2009 are set aside. In view of the same, the

SDJM, Gaya is permitted to proceed with the criminal

proceedings in trial Nos. 1551 of 2008 and 1224 of 2009 and

decide the same in accordance with law. It is made clear that

we have not expressed anything on the merits and claims of

both parties and our above conclusion is confined to the

territorial jurisdiction of the Court at Gaya. Both the criminal

appeals are allowed.

...........................................J.

(P. SATHASIVAM)

...........................................J.

(DR. B.S. CHAUHAN)

NEW DELHI;

APRIL 11, 2011.

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