IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1291 of 2008 1. Akhilesh Sharma , Son of Late Baleshwar Sharma 2. Saleshar Devi, W/o Akhilesh Sharma 3. Lalit Sharma S/o Akhilesh Sharma 4. Chandan Sharma, S/o Akhilesh Sharma 5. Nisha Kumari @ Pinki D/o Akhilesh Sharma All are resident of Village- Jokohat, P.S. Jokohat, District-Araria. 6. Brajesh Kumar @ Rai son of Krityanand Rai 7. Sarita Devi @ Paplu w/o Brajesh Rai Both are resident of Farbishganj, P.S. Farbishganj, District- Araria 8. Suresh Sharma @ Ratan Sharma s/o Baleshwar Sharma,resident of Village-Uda P.S. Jokahat, District-Araria ------------------ Petitioners Versus 1 THE STATE OF BIHAR 2. Kanchan Devi D/o Arun Maharaj , resident of Village- Bhaluahi, P.S. Uda Kishanganj, District-Madhepura. -------------------- Opp.Parties. ----------- For the petitioners : Mr. Dinesh Prasad Verma, Advocate For the State : Dr. Maya Nand Jha, A.P.P. For Opp.Party no.2 : Mr. Nageshwar Prasad, Advocate -------------- O R D E R Five of the eight persons impleaded as accused in Complaint Case no.632 of 2005 have filed this application for quashing of the order dated 13.1.2007 passed therein by the learned Chief Judicial Magistrate, Madhepura, whereby he has taken cognizance of offences under Sections 120B, 323,307, 498A I.P.C. against all the eight accused including these petitioners. The complainant, one Kanchan Devi, impleaded herein as Opp.Party no.2 , filed the aforesaid complaint stating therein inter alia that her marriage with Hari Mohan Sharma ( not arrayed as accused ) two years earlier whereat gifts commensurate with the paying - 2 - capacity of her father was given, and after staying in the matrimonial home for 2-3 months she returned to the parental home soon whereafter her father-in-law had bhaisur, Lalit Sharma , arrived and made a demand for a Hero Hona Motorcycle by way of dowry since it had remained due from the time of marriage. O her return to the matrimonial home, she was subjected to torture, both mental and physical, for non-fulfilment of the dowry demand of the motorcycle by all the accused except her husband who tried to defend her against the assault and reiteration of the demand for the motorcycle. He would express his desire not to possess a new motorcycle and also requested them not to torture Kanchan. It is said that she came to her parental home in November,2004 along with her husband where she narrated the threats advanced to her by the accused of getting her husband married a second time elsewhere if the demand for motorcycle was not met.. She is again said to have gone to her matrimonial home with her husband followed by her father who again tried to pacify and reason with the accused. Soon after the father left , all the accused, again started assaulting her and threatening her with the husband getting married elsewhere. It is alleged that one day while she was sleeping in a room she could hear the accused whispering among themselves that unless she was done to death her husband would not marry a second time and as the husband had gone to the Bazar she should be burnt during his absence and it could be explained that she caught fire while cooking food. Hearing this, the complainant got frightened and as soon as she - 3 - attempted to flee all the accused surrounded her and on the orders of the mother-in-law, her dewar , Chandan Sharma, poured kerosene oil on her body and nanad, Nisha Kumari, handed over the match box to Sarita Devi. As soon as Sarita tried to light the match stick, her husband arrived and saved the situation and cursed the other accused for their overt acts, and also gave out that he would not tolerate his wife being subjected to torture. It is also alleged that as the husband tried to snatch the match box from Sarita‟s hand she slipped and fell whereupon Brajesh Rai , Lalit Sharma, Chandan Sharma and Suresh Sharma started assaulting her husband with lathi and danda and Chandan dealt a lathi blow on the head of the husband resulting in bleeding injury and he succumbed to the same. The complainant is said to have started weeping whereupon Sarita and Salehar Devi caught hold of the complainant , gagged her mouth with cloth , tied her hands and feet and she was injected with some intoxicant as a result whereof she fainted. On gaining consciousness she learnt that the dead body of her husband, in connivance with the police, had become traceless. Seeing the situation she requested the accused to send her to her father but they avoided under one pretext or the other and kept a watch over her. It is further said that 15 days later her father came there and she narrated to him her tales of woe. The father went to Jokihat Police Station and gave his statement but no action having been taken thereupon he approached the Superintendent of Police, Araria through an application but that too did not invite any action. Hence the - 4 - complaint. After holding an enquiry under Section 202 Cr.P.C., the learned Chief Judicial Magistrate, as stated above, took cognizance under Section 120B , 323,307, 498A I.P.C. as also under Section 3 /4 of the Dowry Prohibition Act. Assailing the impugned order, it was submitted on behalf of the petitioner that although the entire cause of action took place within the territorial jurisdiction of the Araria Court and the deceased was killed within its jurisdiction, the taking of cognizance by Madhepura court was without competence and curiously though death had occurred , no cognizance under Section 302 I.P.C. was taken. It was further submitted that as a matter of fact the deceased suffered from diarrhoea and was treated for the same in the hospital from 17.4.2005 to 20.4.2005 and he died because of the ailment. The grievance was also raised to the effect that although the husband of the complainant was allegedly killed on 19.4.2005, the complaint came to be filed on 13.7.2005 after three months and there was no explanation for the delay. It was also submitted that it was wrong to say that the complainant‟s parents were not informed of the death of her husband since they had attended the cremation ceremony. A grievance was also raised about non- mention of the date of the several occasions when the torture alleged took place. It was further submitted that petitioner nos.6, 7 and 8 live separately from the others and had no role to play in the alleged death of the husband of the complainant. Even the allegation against the accused, it was submitted, was general and - 5 - omnibus in nature and no specific allegation had been attributed to any of them. On the aforesaid premise, it was submitted, that the entire action being an abuse of the process of the court was fit to be quashed. So far as the issue of the Madhepura Court having no territorial jurisdiction to try the case is concerned it will be evident from the complaint that the complainant has alleged that she had been subjected to cruel treatment persistently in the matrimonial home at Jokihat for non-fulfilment of the demand of a motorcycle and even when she came to her parental home at Bhaluho within Uda Kishanganj P.S. in the district of Madhepura with her husband , she was not left free and her father-in-law and bhaisur arrived to propel their ominous demand for the motorcycle by way of dowry as the same, though allegedly promised, had not been given at the time of marriage. Clauses (b) and (c) of Section 178 Cr.P.C. becomes relevant. Clause (b) envisages that “where an offence is committed partly in one local area and partly in another” such offence can be tried by a court having jurisdiction over any such local areas. Similarly Clause (c) contemplates that “where any offence is a „continuing one‟ and continues to be committed in more local areas” then such offence can be tried by a court having jurisdiction over any of such local areas. In the instant case both the courts had the jurisdiction to try the case and no illegality can be found in the impugned order. The killing of the husband of the complainant is not the - 6 - principal issue involved here . Albeit it is the torture of the complainant for non-fulfilment of dowry demand. So whether the husband was killed or died due to ailment and the police not registering the case under Section 302 I.P.C. is irrelevant and by making these submissions on attempt was made to divert attention from the main issue. The other issues raised by the learned counsel for the petitioners are their defence which are to be proved or disproved during the trial by leading cogent evidence. Now to the reasonability of the impugned order Admittedly, the learned Magistrate took cognizance after holding an enquiry under Section 202 Cr.P.C. It is by now well settled that since the object of an enquiry under Section 202 Cr.P.C. is to ascertain whether the allegation made in the complaint are intrinsically true , the Magistrate acting under Section 203 Cr.P.C. has to satisfy himself that there is sufficient ground for proceeding . In order to come to the conclusion he is entitled to consider the evidence taken by him or recorded by him in the enquiry under Section 202 Cr.P.C.. He is not entitled to look upon any material besides this. Gainful reference may be placed on the decision of Chandradeo Vs. Prokash Chandra ( AIR 1963 SC 1430). The submissions advanced by the learned counsel for the petitioners unfortunately happen to be their defence and were matters extraneous to the proceeding under Section 202 Cr.P.C. and they could not be looked into in a proceeding under Section 482 Cr.P.C. - 7 - whether there is a prima facie evidence even through an accused may have a defence that the offence was committed by some other person or persons, the matter has to be left to be decided by the appropriate forum at the appropriate stage and issue of process cannot be refused. In the instant case, the Magistrate after due enquiry under Section 202 Cr.P.C. was satisfied that process should issue to the accused persons and, accordingly, did so. Apparently, there is no illegality or impropriety in the order of the learned Magistrate which is upheld. There being no merit in this application, the same is dismissed. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 20th May,2009 Nawal Kishore Singh/A.F.R.