( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 326 OF 2009 1. Kanahya s/o Pralhad Rediya (Reddy) 2. Subhash s/o Pralhad Rediya (Reddy) 3. Sanjay s/o Pralhad Rediya (Reddy) 4. Pralhad s/o Premchand Rediya (Reddy) 5. Jamunabai w/o Pralhad Rediya (Reddy) All r/o Padampura, Aurangabad, District Aurangabad. PETITIONERS VERSUS 1. The State of Maharashtra 2. Reena w/o Kanahya Rediya (Reddy), R/o Plot No. 50, Trimurti Nagar, Behind Trimurti Complex, Opp. MIDC Varangaon Road, Bhusawal, District Jalgaon. RESPONDENTS ..... Mr. H.F. Pawar, advocate holding for Mr. P.H. Kapadia, advocate for the petitioners. Mr. N.R. Shaikh, APP for the respondent No. 1/State. Mr. A.M. Gholap, advocate for the respondent No. 2. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 7th October, 2009] ( 2 ) ORAL JUDGEMENT : 1. By this petition, the petitioners seek quashing of criminal proceedings bearing R.C.C. No. 568/2007 arising out of crime No. 84/2007 registered at Bazar Peth Police Station, Bhusawal, pending on file of learned Judicial Magistrate (F.C.), Bhusawal. 2. Petitioners No. 1 to 3 are real brothers interse and petitioners No. 4 and 5 are their parents. Indisputably, the marriage between petitioner No. 1 Kanahya and complainant Smt. Reena was solemnized on 20th February, 1995. After the marriage, she started residing with the petitioners in their common house situated in Padampura locality at Aurangabad. She delivered a female child on 21-12-1995. She delivered another female child on 25th June, 1997. According to the prosecution, her plight was started after the delivery of second female child. The petitioners were disappointed when the second female child was born. They started ill-treating her. She went to house of her ( 3 ) parents when the ill-treatment became unbearable. However, the petitioners and their relatives visited house of her parents after about seven (7) months. An assurance was given that she would be treated properly and there will be no ill-treatment meted out to her. Therefore, she was sent with them for cohabitation with the petitioner No. 1. 3. The prosecution further alleges that on 04-01-1999, complainant Smt. Reena gave birth to a female child by name “Nidhi” and thereafter, again she was subjected to physical and mental cruelty. The petitioner No. 1 and his parents teased her and demanded Rs. three (3) lacs for construction of show-room of their shop. They told her that they would not maintain her because she had delivered the female child for third time. The petitioner No. 1 threatened her that if she would not bring the money from her father, then she will not be kept alive. She was being beaten up. In the year 2000, her husband and in-laws assaulted her due to non- fulfillment of the unlawful demand and got boarded her in a S.T. bus bounded for Bhusawal. While she was at ( 4 ) house of her parents, on 06-08-2001, she delivered fourth female child by name Revati. Though intimation was given about the birth of fourth female child, none of the petitioners turned up and they communicated that she had no concern with them. She filed proceedings for separate maintenance allowance on 27-06-2001. It is alleged that on 19-07-2007, the petitioner No. 1 visited the house of her parents and threatened her that he would see as to how she will visit Aurangabad. He assaulted her and left house of her parents. Thereafter, she lodged the FIR in the Bazar Peth Police Station, Bhusawal on 21-07-2007. The offences punishable under section 498A, 323, 504, 506 read with section 34 of the I.P. Code were registered against the petitioners vide crime No. 84/2007. On basis of material gathered during course of investigation, the petitioners have been chargesheeted vide R.C.C. No. 508/2007. 4. The petitioners alleged that the criminal prosecution is outcome of vendetta due to matrimonial dispute. They further alleged that the entire story appearing in the FIR is fabricated by the complainant. ( 5 ) They alleged that the criminal prosecution is barred by limitation and cognizance could not have been taken by the learned Magistrate. They would further submit that petitioner No. 1 Kanhya is suffering from schizophrenia and could not have gone to Bhusawal on 19-07-2007. They alleged that such kind of incident is introduced in the complaint with a view to far-fetchedly explain the period of limitation. It is further submitted that the learned Judicial Magistrate at Bhusawal has no jurisdiction to entertain the criminal case, in as much as no cause of action arose within the territorial jurisdiction of the Court. On these premises, the petitioners seek quashing of the criminal proceedings as stated above. 5. Heard learned counsel for the parties and learned A.P.P. 6. At the threshold, it is worthy to be noted that though the petitioners were released on bail in the month of October, 2007, yet, they did not file the petition with promptitude. The criminal case was ( 6 ) instituted against them in the month of November, 2007. It appears that some of the petitioners had applied for anticipatory bail. Needless to say, they were well aware about the prosecution which was instituted against them in the month of November, 2007. The present petition is filed on 30th April, 2009. Thus, the petition suffers from delay and latches. 7. The contention of the petitioners about limitation is also not prima facie acceptable. What transpires from the record is that complainant Smt. Reena narrated about the matrimonial cruelty when she filed proceedings for separate maintenance allowance under section 125 of the Criminal Procedure Code in the month of June, 2001. It also appears that she had filed an application before the Women’s Protection Cell, Jalgaon. Thus, she was hoping against hope that there will be change in the attitude of the petitioners. One cannot be oblivious of the fact that after the birth of second female child, she had not returned to house of the petitioners for about seven (7) months and it was only after alleged mutual settlement that she resumed ( 7 ) the matrimonial relationship. Considering this past experience narrated in the FIR, it could be believed by her that similar attempt for reconciliation may be undertaken by the petitioners. There is some explanation appearing from the recitals of the FIR in the context of such delay. 8. In “Arun Vyas and another v. Anita Vyas” (AIR 1999 S.C. 2071), the Apex Court held that the offence of matrimonial cruelty is continued one. It is observed : “It is true that the expression in the interest of justice in Section 473 cannot be interpreted to mean in the interest of prosecution. What the Court has to see is `interest of justice’. The interest of justice demands that the Court should protect the oppressed and punish the oppressor/offender. In complaints under Section 498-A the wife will invariably be oppressed, having been subjected to cruelty by the husband and the in-laws. It is, therefore, appropriate for the Courts, in case of delayed complaints, to construe liberally Section 473 Cr.P.C. in favour of a wife who is subjected to cruelty ( 8 ) if on the facts and in the circumstances of the case it is necessary so to do in the interests of justice. When the conduct of the accused is such that applying rule of limitation will give an unfair advantage to him or result in miscarriage of justice, the Court may take cognizance of an offence after the expiry of period of limitation in the interest of justice. This is only illustrative not exhaustive.” In view of the above observations, it would be premature to determine the question of limitation at this stage. One cannot be oblivious of the fact that the question of limitation depends on various factors. Whether section 473 of the Criminal Procedure Code is attracted in such a case will have to be determined on basis of the attending circumstances and the material that may be placed on record. 9. So far as the jurisdictional issue is concerned, Mr. Pawar seeks to rely on “Bhura Ram and others v. State of Rajasthan & another” 2008 AIR SCW 4449 : 2008 (1) SCC 103. The Apex Court held that when ( 9 ) the complainant had left the place where she was residing with her husband and inlaws and shifted to another city, then the Court where she resides with her parents will have no jurisdiction to entertain the criminal complaint. 10. True, the recitals of the FIR purport to show that on 19-07-2007, her husband (Pralhad) visited the house of her parents and then threatened her that he would see how she will come to Aurangabad. It is also alleged that he assaulted her by means of chappal and left the house. The incident was not immediately reported to the police. Nor such solitary incident can be regarded as matrimonial cruelty within the meaning of section 498A of the I.P. Code. For, neither there was intention to drive her to commit suicide or to cause any injury to her person, nor the so called threaten and assault was on account of her failure to meet out with any unlawful demand. I mean to say, it was not an incident of cruelty within the ambit of Explanation (a) or (b) of Section 498A of the Criminal Procedure Code. The only inescapable conclusion which could be drawn is ( 10 ) that such solitary incident as shown in the FIR with a view to somehow bring the matter of matrimonial cruelty within the jurisdiction of Bhusawal Court. There is no medical evidence to show that the complainant received any visible injury. Nor the so called abuses have been spelt out in the FIR. Obviously, the Court of Judicial Magistrate (F.C.) at Bhusawal has no territorial jurisdiction to entertain the criminal case. 11. Considering the above reasons, I am not inclined to quash the proceedings. The request for quashing of the process and the criminal proceedings will have to be, therefore, rejected. The petition suffers from delay and latches as well at the premature stage, the other aspects agitated in the petition cannot be considered. However, since the Court of Judicial Magistrate (F.C.) at Bhusawal has no territorial jurisdiction, I deem it proper to exercise the jurisdiction available under section 407 of the Criminal Procedure Code to transfer the proceedings of the criminal case to the Court of Chief Judicial Magistrate at Aurangabad. ( 11 ) 12. In the result, the petition is dismissed on merits. However, the criminal case is transferred from the Court of Judicial Magistrate at Bhusawal to the Court of Chief Judicial Magistrate at Aurangabad for the purpose of trial. 13. In view of dismissal of the criminal writ petition, the criminal application No. 2097/2009 stands disposed of accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/criwp326-09