R/[SECTION] JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION (QUASHING) NO. [SECTION]139 of 2014 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE [ENTITY] 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the [ACT] or any order made thereunder ? [ENTITY] & 3 Applicant(s) Versus [ENTITY] & 1 Respondent(s) Appearance: MR [ENTITY], ADVOCATE for the Applicant(s) No. 1 - 4 MR [ENTITY], ADVOCATE for the Respondent(s) No. 2 MRS [ENTITY], ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1 CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 2[SECTION]/03/201[SECTION] ORAL JUDGMENT
By this writ-application under [SECTION] of the [ACT], the applicants-original accused, seek to invoke the inherent powers of this Court, praying for quashing of the FIR, I-C.R No.20[SECTION] of 2014, registered with the Umra Police Station, Surat, for the offence R/[SECTION] JUDGMENT punishable under [SECTION], [SECTION] and [SECTION] of the [ACT], and also under [SECTION], [SECTION] and [SECTION] of the [ACT].
2. The case of the first informant may be summarized as under:-
2.1 The first informant got married with the applicant No.1 herein at Uttar Pradesh on 16th July, 2013. After the marriage, the first informant started residing at the matrimonial home at Uttar Pradesh.
It is alleged that shortly after the marriage, the applicants herein started harassing the first informant and treated her cruelly. It is alleged that on petty issues of household work, the applicants used to taunt the first informant and cause harassment. It is the case of the first informant that due to such harassment, she left the matrimonial home on 2[SECTION]th December, 2013 and returned to her parental home at Surat. On 13th August, 2014, the first information report came to be lodged at the Umra Police Station.
3. Mr. [ENTITY], the learned advocate appearing for the applicants submitted that the FIR lodged by the first informant is nothing, but an abuse of process of law. He submitted that no cause of action could be said to have arose within the City of Surat, so as to confer territorial jurisdiction to the Police at Surat to investigate the FIR in question. He submitted that all acts of cruelty as alleged, are said to have been committed at the State of Uttar Pradesh. He submitted that the allegations levelled in the FIR are far from the truth and it is very hard to believe that within five months of the date of marriage, the applicants started treating the first informant cruelly. It also appears that after the return of the first informant to her parental home in December, 2013, the parents of the first informant once again brought the first informant at U.P on 2[SECTION]th February, 2014 and R/[SECTION] JUDGMENT left the matrimonial home once again within three days with her clothes and other articles.
In such circumstances, Mr. [ENTITY], the learned advocate for the applicants, prays that the investigation by the Police at Surat is nothing, but an abuse of the process of law. He submitted that even on the ground of territorial jurisdiction of the Umra Police to investigate the FIR, the same should be ordered to be transferred at the concerned Police Station of the State of U.P.
4. This application has been vehemently opposed by Mr. [ENTITY], the learned advocate appearing for the first informant. He submitted that the plain reading of the FIR discloses commission of cognizable offence punishable under [SECTION] the [ACT]. He submitted that the question of territorial jurisdiction should be best left to the trial Court to decide. He relied on two judgments of the Supreme Court, namely (i) [ENTITY] and anr. Vs. State of U.P, reported in (2012) 10 SCC [SECTION]41 and (ii) K.K. Singhal & ors. Vs. Steel Strips Limited, reported in 201[SECTION] (1) Crimes 1[SECTION] (SC).
[SECTION]. Mrs. [ENTITY], the learned APP submitted that the Police at Surat has got the territorial jurisdiction to investigate the case and they should be permitted to go ahead with the investigation. Mrs. [ENTITY], the learned APP further submitted after taking instruction from the Investigating Officer who is present in the Court that even a warrant under [SECTION] of the Code has been issued against the applicants.
6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the FIR deserves to be quashed R/[SECTION] JUDGMENT or transferred to the Police Station having jurisdiction to investigate the same.
[SECTION]. The principal argument of Mr. [ENTITY] is that the Police of the Umra Police Station, Surat has no territorial jurisdiction to investigate the first information report, as all the alleged acts of harassment complained of by the first informant are said to have been committed at Uttar Pradesh.
8. In my opinion, the principal argument of Mr. [ENTITY] merits consideration. By no stretch of imagination it can be said that even remotely a part of the cause of action arose at Surat, so as to make the first information report maintainable at the Umra Police Station, Surat. The two decisions relied upon by the learned advocate appearing for the first informant are of no avail and are not applicable to the facts of the present case.
9. The law, in this regard, is well settled. I may quote few decisions of the Supreme Court in this regard. In the case of [PRECEDENT], the Supreme Court made the following observations in paragraphs Nos.[SECTION], 8, 9, 10, 11, 12, 13, 14, 1[SECTION], 16, 1[SECTION], 18 and 19:
"[SECTION]. [SECTION] of the Code deals with ordinary place of inquiry and trial, and reads as follows:
"1[SECTION][SECTION]. 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."
8. [SECTION] deal with venue and place of trial.
R/[SECTION] JUDGMENT [SECTION] reiterates the well-established common law rule referred to in Halsbury's Laws of England (Vol. 9, para 83) that the proper and ordinary venue for the trial of a crime is the area of jurisdiction in which, on the evidence, the facts occur and which are alleged to constitute the crime. There are several exceptions to this general rule and some of them are, so far as the present case is concerned, indicated in [SECTION] of the Code which reads as follows:
"1[SECTION]8. 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."
9. "All crime is local, the jurisdiction over the crime belongs to the country where the crime is committed", as observed by [ENTITY]. A significant word used in [SECTION] of the Code is "ordinarily". Use of the word indicates that the provision is a general one and must be read subject to the special provisions contained in the Code. As observed by the Court in [PRECEDENT], L.N. Mukherjee v. State of Madras, [PRECEDENT] and [PRECEDENT] exception implied by the word "ordinarily" need not be limited to those specially provided for by the law and exceptions may be provided by law on consideration or may be implied from the provisions of law permitting joint trial of offences by the same court. No such exception is applicable to the case at hand.
10. As observed by this Court in [PRECEDENT] a continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all, that it is one of those offences which arises out of the failure to obey or comply with a rule or its requirement and which involves a penalty, liability continues till compliance, that on every occasion such disobedience or noncompliance occurs or recurs, there is the offence committed.
11. A similar plea relating to continuance of the offence was examined by this Court in [PRECEDENT]. There the allegations related to commission of alleged offences punishable under [SECTION], [SECTION] and [SECTION]/[SECTION] JUDGMENT [ACT]. On the factual background, it was noted that though the dowry demands were made earlier, the husband of the complainant went to the place where the complainant was residing and had assaulted her. This Court held in that factual background that [SECTION] was attracted. But in the present case the factual position is different and the complainant herself left the house of the husband on 1[SECTION].4.199[SECTION] on account of alleged dowry demands by the husband and his relations. There is thereafter 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] of the Code relating to continuance of the offences cannot be applied.
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] 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.
13. While in civil cases, normally the expression "cause of action" is used, in criminal cases as stated in [SECTION] of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression "cause of action" is, therefore, not a stranger to criminal cases.
14. It is settled law that cause of action consists of a bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise.
1[SECTION]. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously, the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in "cause of action".
R/[SECTION] JUDGMENT
16. The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts.
1[SECTION]. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases for sitting; a factual situation that entitles one person to obtain a remedy in court from another person. In Black's Law Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In Words and Phrases (4th Edn.), the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf.
18. In Halsbury's Laws of England (4th Edn.) it has been stated as follows:
" 'Cause of action' has been defined as meaning simply a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that a particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action."
19. When the aforesaid legal principles are applied, to the factual scenario disclosed by the complainant in the complaint petition, the inevitable conclusion is that no part of cause of action arose in Chennai and, therefore, the Magistrate concerned had no jurisdiction to deal with the matter. The proceedings are quashed. The complaint be returned to Respondent 2 who, if she so chooses, may file the same in the appropriate court to be dealt with in accordance with law. The appeal is accordingly allowed."
R/[SECTION] JUDGMENT
10. In a recent pronouncement, in the case of [ENTITY] and another v. State of U.P. and another, reported in AIR 2013 SC 181, the Supreme Court made the following observations in paragraphs Nos.20, 21, 22, 23, 24, 2[SECTION], 26 and 2[SECTION]:
"20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao v. L.H.V. Prasad and Ors. reported in (2000) 3 SCC 693 : (AIR 2000 SC 24[SECTION]4) wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:
"there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their cases in different courts."
The view taken by the judges in this matter was that the courts would not encourage such disputes.
21. In yet another case reported in [PRECEDENT] in the matter of [PRECEDENT]. it was observed that there is no doubt that the object of introducing [SECTION] in the [ACT] was to prevent the torture to a woman by her husband or by relatives of her husband. [SECTION] was added with a view to punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful demands of dowry. But if the proceedings are initiated by the wife under [SECTION] against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court R/[SECTION] JUDGMENT would not be proper as it would prevent woman from settling earlier. Thus, for the purpose of securing the ends of justice quashing of FIR becomes necessary, [SECTION], [ACT] would not be a bar to the exercise of power of quashing. It would however be a different matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power.
22. In the instant matter, when the complainant and her husband are divorced as the complainant-wife secured an ex parte decree of divorce, the same could have weighed with the High Court to consider whether proceeding initiated prior to the divorce decree was fit to be pursued in spite of absence of specific allegations at least against the brother and sister of the complainant's husband and whether continuing with this proceeding could not have amounted to abuse of the process of the court. The High Court, however, seems not to have examined these aspects carefully and have thus sidetracked all these considerations merely on the ground that the territorial jurisdiction could be raised only before the magistrate conducting the trial.
23. In the instant case, the question of territorial jurisdiction was just one of the grounds for quashing the proceedings along with the other grounds and, therefore, the High Court should have examined whether the prosecution case was fit to be quashed on other grounds or not. At this stage, the question also crops up whether the matter is fit to be remanded to the High Court to consider all these aspects. But in matters arising out of a criminal case, fresh consideration by remanding the same would further result into a protracted and vexatious proceeding which is unwarranted as was held by this Court in the case of Ramesh v. State of Tamil Nadu (AIR 200[SECTION] SC 1989) (supra) that such a course of remand would be unnecessary and inexpedient as there was no need to prolong the controversy. The facts in this matter on this aspect was although somewhat different since the complainant had lodged the complaint after seven years of delay, yet in the instant matter the factual position remains that the complaint as it stands lacks ingredients constituting the offence under [SECTION] and [SECTION] [ACT] against the appellants who are sister and brother of the complainant's husband and their involvement in the whole incident appears only by way of a casual inclusion of their names. Hence, it cannot be overlooked that it would be total abuse of the process of law if we were to remand the matter to the High Court to consider whether there were still any material to hold that the trial should proceed against them in spite of absence of prima facie material constituting the offence alleged against R/[SECTION] JUDGMENT them.
24. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.
2[SECTION]. In the case at hand, when the brother and unmarried sister of the principal accused [ENTITY] approached the High Court for quashing the proceedings against them, inter alia, on the ground of lack of territorial jurisdiction as also on the ground that no case was made out against them under [SECTION] including [SECTION] of the [ACT], it was the legal duty of the High Court to examine whether there were prima facie material against the appellants so that they could be directed to undergo the trial, besides the question of territorial jurisdiction. The High Court seems to have overlooked all the pleas that were raised and rejected the petition on the solitary ground of territorial jurisdiction giving liberty to the appellants to approach the trial court.
26. The High Court in our considered opinion appear to have missed that assuming the trial court had territorial jurisdiction, it was still left to be decided whether it was a fit case to send R/[SECTION] JUDGMENT the appellants for trial when the FIR failed to make out a prima facie case against them regarding the allegation of inflicting physical and mental torture to the complainant demanding dowry from the complainant. Since the High Court has failed to consider all these aspects, this Court as already stated hereinbefore, could have remitted the matter to the High Court to consider whether a case was made out against the appellants to proceed against them. But as the contents of the FIR does not disclose specific allegation against the brother and sister of the complainant's husband except casual reference of their names, it would not be just to direct them to go through protracted procedure by remanding for consideration of the matter all over again by the High Court and make the unmarried sister of the main accused and his elder brother to suffer the ordeal of a criminal case pending against them specially when the FIR does not disclose ingredients of offence under [SECTION], [ACT] and [SECTION] of the [ACT].
2[SECTION]. We, therefore, deem it just and legally appropriate to quash the proceedings initiated against the appellants [ENTITY] and [ENTITY] as the FIR does not disclose any material which could be held to be constituting any offence against these two appellants. Merely by making a general allegation that they were also involved in physical and mental torture of the complainant-respondent No.2 without mentioning even a single incident against them as also the fact as to how they could be motivated to demand dowry when they are only related as brother and sister of the complainant's husband, we are pleased to quash and set aside the criminal proceedings insofar as these appellants are concerned and consequently the order passed by the High Court shall stand overruled. The appeal accordingly is allowed."
11. In the result, this application is partly allowed. The P.I of the Umra Police Station, Surat, investigating the offence in question is directed to transfer the FIR to the concerned Police Station at Uttar Pradesh, having jurisdiction to investigate the same with the papers of investigation. I hold that the Police at Surat has no territorial jurisdiction to investigate the offence alleged in the FIR. The warrant, if issued, stands cancelled. Rule is made absolute to the aforesaid extent. Direct service permitted.
R/[SECTION] JUDGMENT ([ENTITY], J.) [ENTITY]