IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.17167 of 2008 1. Shri Kant Sharma, son of Late Vakil Singh. 2. Kanti Kumari, wife of Shri Kant Sharma. 3. Dr. Divakar Kant, son of Shri Kant Sharma. All resident of Choudhary Tola, New Colony, Mahendru, Police Station-Sultangajn, District and Town-Patna. ……………………………………………….Petitioners. Versus 1. The State Of Bihar. 2. Dr. Jyotsna, divorced wife of Dr. Divakar Kant and daughter of Late Awadhesh Prasad Singh, resident of S.K. Tarafdar Road, Adampur (Bhagalpur); P.S. Adampur, District-Bhagalpur. ……………………………………Opposite Parties. ---------------------------------- For the Petitioners: Mr. Ramakant Prasad Singh, Advocate. For the State : Mr. R.P.S. Singh, A.P.P. ------------------------------------- O R D E R 10. 23.12.2011. The petitioners have approached this Court under Section 482 of the Code of Criminal Procedure to quash the order dated 29.3.2008 passed in Bhagalpur Kotwali P.S. Case No.663 of 2005/G.R. No.2754 of 2005 by the Sub Divisional Judicial Magistrate, Bhagalpur, rejecting the application of the accused-petitioners challenging the order dated 8.3.2007, taking cognizance of the offence under 2 Sections 498-A, 323 and 506/34 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act, on the ground of lack of territorial jurisdiction. 2. The brief facts of the case is that the opposite party no.2, Dr. Jyotsna, lodged the F.I.R., numbered as Bhagalpur Kotwali P.S. Case No.663 of 2005 under Sections 498-A, 323 and 506/34 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act on 6.10.2005 against the petitioners and four others with the allegation that her marriage was performed with the accused- petitioner no.3, Dr. Divakar Kant, son of the accused- petitioner no.1, Shri Kant Sharma, on 7.2.2003 according to Hindu customs at Lal Kothi, Gaya. Before her marriage, her husband, accused-petitioner no.3, Dr. Divakar Kant, used to visit at her hostel in PMCH and make a proposal to perform the marriage. Since her father had already died, therefore, except her mother, no one was in her family to take the decision. Her husband, Dr. Divakar Kant, asked her to get prepared a bank draft of Rs.1,65,000/- in their joint name and assured her to deposit the same in their joint account, but her husband deposited the draft, as got prepared by her, in the account, which was running in the 3 name of her husband and his mother. After the marriage, she went to her sasural at Patna in Bidai, where her father- in-law, accused-petitioner no.1, Shri Kant Sharma, mother- in-law, accused-petitioner no.2, Kanti Kumari, brother-in- law (Jeth), Purnendu Kant, sister-in-law (Jethani), Rita Kant, Nanad, Madhulika Madhu, Nandoi, Sanjay, second Nanad, Sefalika and her husband, Sanjeev, started to taunt her saying that her marriage has been performed with a doctor, who receives at least Rs.15,00,000/- in dowry, if his marriage would have been performed at any other place but they have received only Rs.1,65,000/- in dowry and asked her to bring the remaining amount from her mother. Thereafter, all the aforesaid accused persons started to torture her through various modes. Subsequently, her husband left her at the PMCH hostel because she had to get preparation for examination. In the meantime, her husband and in-laws used to send threatening message on telephone to her. While she was in need of money for study and maintenance for herself, but her husband did not help her. As her mother is widow and is librarian in the local Sunderwati Mahila Mahavidyalaya, so, she is not in a position to fulfill the demand made by the accused persons 4 and due to that reason, her mother was harassed mentally by making the demand of dowry by the accused persons. In the meantime, her husband used to meet her and started to torture her mentally and physically. The opposite party no.2 has also alleged that since she is a doctor and getting preparation of post-graduation examination, in that circumstances, her mental harassment has become unbearable and her husband and in-laws created a situation, so that she would become mad or would give a consent for divorce at her own sweet will and her husband could perform re-marriage for getting Rs.10-20 lacs. It is also alleged that in the meantime she became pregnant but his pregnancy was forcibly aborted by her husband, who is Assistant Medical Officer in the Combined Hospital of Ordinance Equipment Factory, Kanpur. She was kept by her husband for some time there but she was tortured and assaulted at the hands of her husband. On the last occasion, in the month of February, 2005, she had gone at the residence of her husband at Badmal (Orissa) from where she fled away due to torture at the hands of her husband. Thereafter, in between May, 2005 to July, 2005, when she was residing at Badmal (Orissa), she was beaten by her 5 husband and was tortured mentally and she was, ultimately, removed from there. Thereafter, on 19.9.2005, she went to Kanpur at the residence of her husband, with her mother, where she was compelled to return by her husband. Accordingly, she returned to Bhagalpur and is residing with her mother. It has also been alleged that as her husband and her in-laws used to give threatening to her, so she has filed the present case. 3. After investigation of the case, the police submitted the chargesheet and, accordingly, the cognizance of the offence was taken under Sections 498-A, 323 and 506/34 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act on 8.3.2007 against the accused including the petitioners. Thereafter, the accused- petitioners filed a petition on 4.6.2007 challenging the order of taking cognizance on the ground of lack of territorial jurisdiction of the court at Bhagalpur, which was dismissed vide order dated 29.3.2008 by the court of Sub Divisional Judicial Magistrate, Bhagalpur, which has been impugned in this application. 4. Learned counsel appearing for the petitioners made submission that after the taking of cognizance of the 6 offence under Sections 498-A, 323 and 506/34 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act in Bhagalpur Kotwali P.S. Case No.663 of 2005/G.R. No.2754 of 2005, the petitioners filed a petition on 4.6.2007 in the court of the Sub Divisional Judicial Magistrate, Bhagalpur, challenging the cognizance order on the ground of lack of territorial jurisdiction in view of the observations of the Hon’ble Apex Court in Special Leave to Appeal (Crl) No.3351 of 2006, which was filed against the order dated 27.4.2006 passed in Cr.W.J.C. No.272 of 2006 by a Bench of this Court, wherein the Hon’ble Apex Court, while dismissing the aforesaid special leave petition, observed that if the petitioners have any objection to the territorial jurisdiction of the concerned Magistrate, they shall first raise that objection before the concerned Magistrate. The Sub Divisional Judicial Magistrate, Bhagalpur, did not consider the same and illegally rejected the petition dated 4.6.2007, filed by the petitioners, through the impugned order dated 29.3.2008. While it is clear from the F.I.R. itself that the occurrence as alleged is said to have taken place at Patna, Badmal (Orissa) and Kanpur, but the opposite party no.2 lodged the F.I.R. in the district of 7 Bhagalpur. As such, the court at Bhagalpur suffers from lack of territorial jurisdiction to take cognizance of the offence against the petitioners and other accused named in the F.I.R. It has further been submitted that, in fact, the petitioner no.3, Dr. Divakar Kant, the husband of opposite party no.2, Dr. Jyotsna, has filed the Matrimonial Case for divorce bearing Matrimonial (Divorce) Case No.337 of 2005 under Section 13(B) of the Hindu Marriage Act, 1955 against the opposite party no.2 on 9.9.2005 in the court of Principal Judge, Family Court, Patna, hence, on receiving the notice of the aforesaid matrimonial case, the opposite party no.2 with oblique motive has lodged the present F.I.R. bearing Bhagalpur Kotwali P.S. Case No.663 of 2005 against the accused, named in the F.I.R., including the petitioners. 5. On the other hand, learned A.P.P. for the State submitted that the offence under Section 498-A of the Indian Penal Code is continuing in nature and, therefore, the court of Bhagalpur, had jurisdiction to take cognizance of the offence against the accused-petitioners as the opposite party no.2 used to reside with her mother in the district of Bhagalpur after the alleged occurrence. 8 6. As in the present case, the argument is confined mainly to territorial jurisdiction about the criminal proceedings initiated by the opposite party no.2, it is desirable to refer to the provision of Section 498-A of the Indian Penal Code relating to cruelty at the hands of the husband or relatives of the husband of a women and also Sections 177-179 of Chapter-XIII of the Code of Criminal Procedure, which deal with the jurisdiction of the criminal courts in inquiries and trials. Section 498-A of the Indian Penal Code is read as under: “498-A. 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 9 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.” Sections 177-179 of Chapter XIII of the Code of Criminal Procedure are read as under: “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.” 7. It is clear from the above provisions of Sections 10 177-179 of Chapter XIII of the Code of Criminal Procedure that normally the offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. When it is uncertain in which of several local areas an offence was committed or where an offence was 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 areas or the offence consist of several acts done in different local areas, as per Section 178 the Court having jurisdiction over 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 had ensued. 8. In the present case, the opposite party no.2 has lodged the F.I.R. bearing Bhagalpur Kotwali P.S. Case No.663 of 2005 with the allegation of torture and harassment at the hands of her husband and in-laws for demand of dowry and compelling her to left the matrimonial house by her husband and, ultimately, she used to reside with her mother in the district of Bhagalpur . 11 9. On going through the provision of Section 498- A of the Indian Penal Code referred to above, it is clear that harassment and cruelty at the hands of the husband or relatives of the husband of a woman is punishable with imprisonment for a term which may extend to three years and also with fine. In explanation appended to Section 498- A of the Indian Penal Code, not only the physical but the mental cruelty has also been included as an act of the offence. 10. In the case of Sunita Kumari Kashyap Vs. State of Bihar & Anr. {2011(2) PLJR 191 (SC)} similar issue was considered by the Hon’ble Apex Court. In the said case, Sunita Kumari Kashyap, was the appellant before the Hon’ble Apex Court, who had lodged the F.I.R. bearing No.66 of 2007 at Magadh Medical College Police Station, Gaya, under Sections 498-A and 406/34 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act in which on submission of the chargesheet, the Chief Judicial Magistrate, Gaya, had taken the cognizance of the offence under the aforesaid Sections and had transferred the record to the court of the Sub Divisional Judicial Magistrate, Gaya, where an objection was raised by the husband and in-laws, 12 who were accused in that case, about the territorial jurisdiction of the court at district-Gaya, but the same was rejected. Thereafter, Criminal Misc. Nos.42478 of 2009 and 45153 of 2009 were filed by the in-laws and husband respectively of Sunita Kumari Kashyap before this Court, which were allowed by different Benches of this Court vide order dated 19.3.2010 and 29.4.2010 respectively, holding the lack of territorial jurisdiction. The aforesaid orders, i.e., the order dated 19.3.2010 passed in Criminal Misc. No.42478 of 2009 and the order dated 29.4.2010 passed in Criminal Misc. No.45153 of 2009, were set aside by the Hon’ble Apex Court. The Hon’ble Apex Court while setting aside the aforesaid orders, in its decision, in the case of Sunita Kumari Kashyap (Supra), held in paragraphs- 10 and 11, as under: “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 13 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 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, 14 undoubtedly clause (c) of Section 178 of the Code is clearly attracted.” 11. From the aforesaid facts and the circumstances of the case, it is no doubt that the harassment and cruelty as alleged was caused to the opposite party no.2 at the hands of the accused-petitioners, who are in-laws and husband of opposite party no.2, either at her sasural situated in the district of Patna, or at Badmal (Orissa) or at Kanpur and she, ultimately, used to reside at her Maika in the district of Bhagalpur with her mother. As such, while the cause arose either at her sasural situated in the district of Patna, or at Badmal (Orissa) or at Kanpur, but the effect of the cause was ensued and was continuing in the district of Bhagalpur, due to the mental cruelty suffered continuously by the opposite party no.2 in view of the provisions of Sections 178 (c) and 179 of Chapter-XIII of the Code of Criminal Procedure. As such, I find no illegality in the impugned order dated 29.3.2008 passed by the Sub Divisional Judicial Magistrate, Bhagalpur, in Bhagalpur Kotwali P.S. Case No.663 of 2005/G.R. No.2754 of 2005, amounting to abuse of the process of the Court. So far as the submission of the learned counsel for 15 the petitioners about the filing of the present case by the opposite party no.2 with oblique motive due to filing of the Matrimonial (Divorce) Case No.337 of 2005 under Section 13(B) of the Hindu Marriage Act, 1955, in the court of the Principal Judge, Family Court , Patna, by her husband, accused-petitioner no.3, Dr. Divakar Kant against the opposite party no.2, is concerned, at the time of taking of cognizance of the offence or summoning the accused, on inquiry, under Section 204 of the Code of Criminal Procedure, the Magistrate/court is not required to look into the defence of the accused. 12. In the result, this application, being devoid of merit, is dismissed. P.S. (Rajendra Kumar Mishra, J)