Crl. Misc. No. M-34031 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-34031 of 2011 (O&M) Date of Decision : 16.11.2011 Sukhdev Singh and others …Petitioners Versus Pawanjeet Kaur …Respondent ………. CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- 1. Whether Reporters of local newspapers may be allowed to see judgment? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present: Mr. Mansur Ali, Advocate for the petitioners. *** Alok Singh, J. (Oral) Petitioners, in-laws of the complainant-respondent being father-in-law, mother-in-law and brother-in-law, have invoked inherent jurisdiction of this Court as provided under Section 482 of Cr.P.C. (in short ‘the Code’) assailing the summoning order dated 12.03.2009, passed by Judicial Magistrate 1st Class, Khanna. Brief facts of the present case are that complainant (respondent herein) has filed complaint, inter alia, alleging therein that her marriage with accused No.1 took place on 19.02.2000, as per rites and rituals, at village Goh. Before her marriage complainant was posted as Art and Crafts Teacher at Government Middle School, Dhikriwal, District Fatehgarh Sahib. At the time of marriage parents of complainant gave sufficient dowry and other gifts to all accused. During betrothal and marriage ceremonies accused were given sufficient articles as detailed in para 5 of complaint; articles/Istridhan of complainant were also handed over to them at the time of marriage. After a few days of marriage behaviour of accused changed and Crl. Misc. No. M-34031 of 2011 (O&M) 2 they started cursing complainant for insufficient dowry. They also started demanding more dowry from her and her parents. Accused also used to beat and maltreat her for these reasons. After about a week of her marriage complainant was compelled to hand over her entire salary. Complainant gave birth to a male child on 14.12.2000 at Bajwa Nursing Hospital, Khanna. Accused never cared to see the newly born child. In the night of 26.03.2001, all accused gave complainant merciless beatings asking for more dowry and cash. She suffered serious injuries and was admitted in Samrala Surgical Centre and Hospital at Samrala. On 28.03.2001 father of complainant came to the hospital where she had narrated entire story to her father. He took her to the parental house. After few days father of complainant accompanied by Panchayat members comprising of Master Jaspal Singh, Sarpanch Harkesh Singh, Jarnail Singh, Ajit Singh went to village of accused and requested for the reconciliation but accused clearly stated that unless more dowry, cash and car, is given she will not be allowed to enter matrimonial home. They also insulted complainant party and refused to hand over Istridhan. On 24.05.2003 complainant moved application to S.S.P., Khanna which was marked to D.S.P., Samrala. To avoid criminal liability accused party agreed to settle the things and compromise was effected in writing on 03.06.2003 where they admitted not to harass complainant and not to raise demand in future. Thereafter, complainant started living in matrimonial house from 08.06.2003. For some days accused kept mum but on 16.09.2003 they again started raising above said demands. On refusal they mercilessly beaten up complainant. In the morning of 17.09.2003 at about 7.00 A.M. accused again beaten her up and repeated their demands. Complainant suffered injuries on her face and eyes. On 18.09.2003 complainant moved application before Crl. Misc. No. M-34031 of 2011 (O&M) 3 SHO, Samrala. He along with police party reached the house of accused where they admitted their guilt assuring not to repeat the same. However, no improvement occurred in their behaviour. They continued in raising their illegal demands and in beating up complainant on refusal. She was confined in a room and was not provided meals. She escaped with her son from there to the house of Sarpanch Harkesh Singh. On his telephonic message her brother, maternal uncle and parental uncle reached to the said Sarpanch. Accused persons also reached there and they flatly refused to keep complainant in the matrimonial house, unless their unlawful demand is fulfilled. Statement of the complainant (respondent herein) as CW1 was recorded. Statements of Jarnail Singh, Ajit Singh, Harkesh Singh and Dr. Tejpal were also recorded by the Magistrate being CW2, CW3, CW4 and CW5 respectively. Learned Magistrate in paragraph Nos. 4 and 5 of the impugned order has observed as under :- “4. I have gone through above detailed facts and preliminary evidence on file. From the same I find that there is sufficient evidence to summon accused to face trial under Section 406/408A IPC. 5. Let all the accused be summoned for 29.05.2009 on filing of PF and copies of complaint and list of witnesses.” Mr. Mansur Ali, learned counsel for the petitioners has stated that he is not challenging summoning order on facts and he is challenging summoning order only on two legal points i.e. (i) Magistrate has not held any enquiry before passing the impugned order as contemplated under Section 202 of the Crl. Misc. No. M-34031 of 2011 (O&M) 4 Code since accused are residing beyond the territorial jurisdiction of the summoning court, therefore, summoning order is liable to be quashed. (ii) No part of the offence was ever committed within the jurisdiction of Judicial Magistrate, Khanna, therefore, Khanna Court had absolutely no jurisdiction to entertain the complaint and to issue process rather only court who had jurisdiction could be of Samarla, District Ludhiana. He has placed reliance on the two judgments of this Court in the case of S.K. Bhaumik Vs. S.K. Arora, reported in 2007(4) RCR (Criminal) 650 and in the case of Smt. Neeta Sinha Vs. P.S. Raj Steels Private Ltd., reported in 2010(3) R.C.R. (Criminal) 509, and has urged that if Magistrate has not held any enquiry as contemplated under Section 202 of the Code, summoning order cannot be sustained in the eyes of law. Mr. Mansur Ali, learned counsel for the petitioner has also placed reliance on the judgment of the Hon’ble Apex Court in the case of Y. Abraham Ajith and Ors. Vs. Inspector of Police, Chennai and Anr., reported in 2004 (3) R.C.R. (Criminal) 988, to urge if offence is not committed within the jurisdiction of the summoning court then summoning order is liable to be quashed. Now let me examine both the legal points raised by Mr. Mansur Ali, learned counsel for the petitioner one by one. I need not enter into the probabilities and correctness of the facts since same are not being disputed by learned counsel for the petitioners. To appreciate the arguments on 1st point, raised by learned counsel for the petitioner, I deem it proper to reproduce Section 202 of the Crl. Misc. No. M-34031 of 2011 (O&M) 5 Code which reads as under :- 202. Postponement of issue of process.- (1) Any Magistrate , on receipt of a complaint of an offence of which he is authorised 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 is- sue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police of- ficer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceed- ing: Provided that no such direction for investigation shall be made, - (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the of- fence complained of is triable exclusively by the Court of Ses- sion, he shall call upon the complainant to produce all his wit- nesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investi- gation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. From the perusal of Section 202 of the Code, it is thus clear if accused are residing beyond the territorial jurisdiction of the Magistrate, it is incumbent on the part of the Magistrate before passing summoning order Crl. Misc. No. M-34031 of 2011 (O&M) 6 either to hold inquiry himself or to direct investigation by the police. This Court in the case of S.K. Bhaumik (supra) and Smt. Neeta Sinha (supra) has quashed the summoning order on the ground that Magistrate has not held any inquiry as contemplated under Section 202 of the Code. There is no dispute on the ratio that if Magistrate fails to hold inquiry himself or direct investigation if accused are not residing within his territorial jurisdiction then summoning order is liable to be set aside with remand to the Magistrate to take decision afresh in accordance with law. Let me examine what would constitute inquiry as contemplated under Section 202 of the Code. Inquiry and investigation are defined u/s 2(g) and 2(h) of the Code which are being reproduced hereinunder :- (g) “inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court; (h) “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf; From the plain reading of Section 2(g) and 2(h), it is thus clear that inquiry and investigation are two different things. As per Section 2(g) inquiry would be other than the trial. Now question comes as to whether recording of statements of the complainant and his witnesses; perusal of complaint, hearing of complainant or his counsel and appreciation thereof minutely to form the opinion whether or not there is sufficient ground to summon or not to summon the accused would constitute inquiry? Hon’ble Apex Court in the case of S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd. & Ors., reported in 2008 (2) R.C.R. (Criminal) 38 in para 13 has observed as under :- Crl. Misc. No. M-34031 of 2011 (O&M) 7 13. Chapter XV (Sections 200-203) relates to “Complaints to Magistrates” and covers cases before actual commencement of proceedings in a Court or before a Magistrate. Section 200 of the Code requires a Magistrate taking cognizance of an offence to examine the complainant and his witnesses on oath. Section 202, however, enacts that a Magistrate is not bound to issue process against the accused as a matter of course. It enables him before the issue of process either to 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 there is sufficient ground for proceeding further. The underlying object of the inquiry under Section 202 is to ascertain whether there is prima facie case against the accused. It thus allows a Magistrate to form an opinion whether the process should or should not be issued. The scope of inquiry under Section 202 is, no doubt, extremely limited. At that stage, what a Magistrate is called upon to see whether there is sufficient ground for proceeding with the matter and not whether there is sufficient ground for conviction of the accused. In the opinion of this Court and in view of the judgment of the Hon’ble Apex Court in the case of S.K. Sinha (supra), if Magistrate has examined the complaint and evidence carefully before forming opinion that there is sufficient material and ground to summon the accused then requirement of inquiry itself stands satisfied. Impugned summoning order shows that learned Magistrate has clearly recorded that having examined the facts as narrated in the complaint and evidence on the file there is sufficient evidence to summon the accused to face trial u/s 498-A and 406 IPC, therefore, it is thus clear that Magistrate did hold an inquiry himself before forming an opinion on the prima facie case and its jurisdiction justifying summoning of accused persons. Consequently, arguments advanced by learned counsel for the petitioner on first ground Crl. Misc. No. M-34031 of 2011 (O&M) 8 stands rejected. Next point raised by the learned counsel for the petitioner is that Khanna court has no jurisdiction since no part of the offence was ever committed within the jurisdiction of Khanna court and only court who has jurisdiction in the present matter is the court at Samrala, District Ludhiana. Perusal of the record shows that complainant was beaten up for bringing less dowry, harassed to meet unlawful demand and was told that she would not be allowed to enter in her matrimonial house till their demand of dowry, cash and car, is fulfilled, therefore, she under compulsion is residing in her parents house. Now question comes if wife while residing in her parents house is requesting her in-laws and husband to permit her to join her matrimonial house and she is not being allowed to join her matrimonial house without fulfilling the illegal demand whether it would amount to commission of offence at the place where for the time being accused-wife is residing in her parents house. Section 498-A IPC reads as under :- "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 Crl. Misc. No. M-34031 of 2011 (O&M) 9 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." From the perusal of Section 498-A IPC it is thus clear that harassment or coercion to a woman or to any person related to her to meet unlawful demand for any property or money would amount to cruelty to make out offence u/s 498-A IPC. Therefore, in the opinion of this Court not permitting the wife, who is residing at her parents house under compulsion, to join the matrimonial home unless and until demand of dowry is fulfilled would certainly amount to mental cruelty and harassment. Since, complainant and her parents are being compelled coerced to meet illegal demand of the accused and complainant is told not to join matrimonial home unless demand is fulfilled, therefore, offence u/s 498-A IPC is also committed within the jurisdiction of Khanna court since now complainant and her parents are residing there. As per the complaint, at the time of marriage within the territorial jurisdiction of Khanna court, Istridhan, was handed over to the accused persons by the parents of the complainant, which are not being returned despite of repeated request of the wife-complainant. Therefore, prima facie, offence u/s 406/34 IPC is made out against the accused persons. Section 181 Cr.P.C. reads as under :- 181. Place of trial in case of certain offences.- (1) Any offence of being a thug, or murder committed by a thug , of dacoity, of dacoity with murder, of belonging to a gang of da- coits, or of escaping from custody, may be inquired into or tried by a Court within whose local jurisdiction the offence was com- Crl. Misc. No. M-34031 of 2011 (O&M) 10 mitted or the accused person is found. (2) Any offence of kidnapping or abduction of a person may be inquired into or tried by a Court within whose local jurisdiction the person was kidnapped or abducted or was conveyed or con- cealed or detained. (3) Any offence of theft, extortion or robbery may be inquired into or tried by a Court within whose local jurisdiction the of- fence was committed or the stolen property which is the subject of the offence was possessed by any person committing it or by any person who received or retained such property knowing or having reason to believe it to be stolen property. (4) Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person. (5) Any offence which includes the possession of stolen property may be inquired into or tried by a Court within whose local ju- risdiction the offence was committed or the stolen property was possessed by any person who received or retained it knowing or having reason to believe it to be stolen property. From the perusal of sub-section (4) of Section 181 of the Code, it is thus clear that if any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person. Since in the present case dowry articles/istridhan were handed over within the territorial jurisdiction of the Khanna court at the time of marriage, therefore, Khanna court has jurisdiction to inquire and try the Crl. Misc. No. M-34031 of 2011 (O&M) 11 offence. In the case of Y. Abraham Ajith and Ors. Vs. Inspector of Police, Chennai and Anr., reported in 2004 (3) R.C.R. (Criminal) 988, Hon’ble Apex Court in paragraph 8 has observed as under :- “……….But in the present case the factual position is different and the complainant herself left the house of the husband on 15.4.1997 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 178(c) of the Code relating to continuance of the offences cannot be applied.” In that case Hon’ble Apex court in the factual background of that case that there is not even a whisper of allegations about any demand of dowry or commission of any act constituting an offence much less at Chennai has held that Chennai Court has no jurisdiction. While in the present case, as observed hereinabove, offence punishable u/s 498A IPC is found having been committed within the territorial jurisdiction of Khanna court and in view of sub-section (4) of Section 181 of the Code, offence punishable u/s 406 IPC can be inquired and tried at the place where property was handed over, which was handed over to the accused party at the time of marriage within the territorial jurisdiction of Khanna court, therefore, Khanna court has jurisdiction to inquire and try the offence. Therefore, case of Y. Abraham Ajith (supra), cited by learned counsel for the petitioner, is distinguishable and has no application in the present case. In the recent case of Sunita Kumar Kashyap Vs. State of Bihar and another, reported in 2011(11) SCC 301, Hon’ble Apex Court in paragraphs 10, 12, 13 & 14 has held as under :- Crl. Misc. No. M-34031 of 2011 (O&M) 12 “10. 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. 12. 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 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 Crl. Misc. No. M-34031 of 2011 (O&M) 13 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 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 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. 13. Ultimately, accepting the stand