IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2739 of 2009 ANPURNA DEVI & ORS Versus THE STATE OF BIHAR & ANR ----------- 2. 16.4.2010 I have heard Shri Ashwini Kumar Singh, learned Senior counsel appearing for the petitioners and Shri Vinod Kumar, learned A.P.P. on behalf of the State. The petition seeks quashing of the entire proceedings initiated by order dated 30.8.2007 in Complaint Case No. 462( C) of 2007 by which the petitioners were directed to be put on trial by summoning them for committing the offences under Sections 498(A), 323 and 504 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act,1960. The contention which has been raised by learned Senior counsel before me does not require that I should cull out the allegations which are contained in the complaint petition. Suffice it to mention that on the basis of the complaint petition containing various instances of ill-treatment and torture an enquiry was held by the Sub-divisional Judicial Magistrate, Munger, in the above noted complaint petition and by the impugned order passed the final order. What was contended before me by the learned senior counsel is that by virtue of Section 177 of the Cr. P.C. taking cognizance by the Sub- divisional Judicial Magistrate, Munger, may not be held proper as the place of occurrence was situated within the jurisdiction of village Deep Nagar, P.S.Deep Nagar in the district of Nalanda 2 and the complainant ought to have filed the complaint petition before the appropriate court within the Judgeship of Nalanda at Biharsharif. It is true that Section 177 Cr. P.C. requires that every offence shall ordinarily be enquired into and tried by a court in whose local jurisdiction it was committed, but this provision shall have to be read with the other provisions of the Cr. P.C. Section 460 of the Cr. P.C. is one such provision which notices irregularities which do not vitiate proceedings. If one could consider the provision of Section 460 of the Cr. P.C. one could find that if any Magistrate, not empowered by law to do any of the things enumerated under different sub-clauses of the provisions does that very thing, it shall not vitiate the proceedings. I find that sub-clause (e) deals with the order taking cognizance. It is indicated that if the Magistrate who is not empowered to take cognizance of any offence under clause (a) or clause(b) of sub-section (1) of Section 190, takes cognizance of an offence, that irregularity may not vitiate the proceeding. This provision is further strengthened by the other provision in the same Chapter under Section 462 of the Cr. P.C. which reads as under :- “ 462. Proceedings in wrong place:- No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.” 3 As per this provision on account of lack of territorial jurisdiction no order, etc. passed by a criminal court could be said to be bad in law unless it appears that such error, in fact, has occasioned failure of justice. One is not required to point out that an order of summoning may be touching upon the liberty of a person, but could never occasion failure of justice as regards his cause of getting justice. There are divergent views of the Apex Court on the point. One view is that if a court passing an order of a nature which is impugned presently lacks territorial jurisdiction then the order itself be said to be bad. Similarly, a decision rendered by the Apex Court in another case has taken a different view, i.e., in such a situation the better course could be to either handover the complaint petition to be presented before the right court or to transfer the case itself to the right court for trial without disturbing the order of cognizance. The later view appears taken in ( 2004)8 S.C.C. 100 Y. Abraham Ajith and Ors. Vs. Inspector of Police, Chennai and anr. Thus, on the conspectus of the view on the provision of the Cr.P.C. it could not be said that the order taking cognizance by the Sub-divisional Judicial Magistrate, Munger, could be bad. The Sub-divisional Judicial Magistrate was empowered under law to entertain such petitions. He was competent to embark upon an enquiry to find out the truthfulness of the allegations and he was empowered under Section 190 of 4 the Cr. P.C. to take cognizance of the offences. The only snag which was appearing in the whole proceedings was that the forum of trial on account of territorial jurisdiction may not be available to the complainant of the case before the Sub- divisional Judicial Magistrate, Munger, which could be the Sub- divisional Judicial Magistrate, Nalanda at Bihar sharif. In the light of the above discussions what this Court proposes to do is to dismiss the petition as of no merit. But, at the same time, it directs the District and Sessions Judge, Munger, to ensure that the complaint petition No.462( C) of 2007 which is presently pending before the S.D.J.M., Munger, be transmitted on account of being transferred to the District and Sessions Judge, Nalanda at Biharsharif who shall place it in the file of S.D.J.M., Nalanda at Biharsharif. Kanth ( Dharnidhar Jha, J.)