IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.5411 of 2009 1. RAMESH KUMAR AGARWALA, SON OF LATE CHATURBHUJ AGARWAL. 2. RADHA DEVI AGARWALA, WIFE OF RAMESH KUMAR AGARWALA. 3. ASHISH KUMAR AGARWAL, SON OF RAMESH KUMAR AGARWALA. 4. SUNITA AGARWAL @ NEELU KUMARI, DAUGHTER OF RAMESH KUMAR AGARWALA. ALL RESIDENT OF MOHALLA “GODAWARI” BUILDING IST FLOOR NO. 1, DR. ASHUTOSH SHASTRI ROAD, POLICE STATION BELIAGHATA, DISTRICT SOUTH 24 PARGANA, KOLKATA – 700010 (WEST BENGAL). .......................... PETITIONERS. Versus 1. THE STATE OF BIHAR 2. SUNITA AGARWAL, EX-WIFE OF SRI SUNIL KUMAR AGARWALA, DAUGHTER OF RAMESH CHANDRA SINGHANIA, RESIDENT OF MOHALLA – NORTH CHURCH ROAD, GANDHI MAIDAN, P.S. CIVIL LINES, DISTRICT – GAYA AND PRESENTLY WIFE OF SUSHIL KUMAR SINGHANIA AT PRESENT RESIDING AT C/O. SUSHIL KUMAR SINGHANIA, ASHISH HANDLOOM, BANK ROAD, SUTAPATTI, P.S. – TOWN THANA, DISTRICT – MUZAFFARPUR. ................... OPPOSITE PARTIES. With Cr. Misc. No. 9326 of 2009 SUNIL KUMAR AGARWALA @ SUNIL KUMAR AGRAWAL, SON OF RAMESH KUMAR AGARWALA. RESIDENT OF MOHALLA “GODAWARI” BUILDING IST FLOOR NO. 1, DR. ASHUTOSH SHASTRI ROAD, POLICE STATION BELIAGHATA, DISTRICT SOUTH 24 PARGANA, KOLKATA – 10 (WEST BENGAL). ........................... PETITIONER. Versus 1. STATE OF BIHAR 2. SUNITA AGARWAL, EX-WIFE OF SRI SUNIL KUMAR AGARWAL, DAUGHTER OF RAMESH CHANDRA SINGHANIA, RESIDENT OF MOHALLA – NORTH CHURCH ROAD, GANDHI MAIDAN, P.S. CIVIL LINES, DISTRICT – GAYA AND PRESENTLY WIFE OF SUSHIL KUMAR SINGHANIA AT PRESENT RESIDING AT C/O. SUSHIL KUMAR SINGHANIA, ASHISH HANDLOOM, BANK ROAD, 2 SUTAPATTY, P.S. – TOWN THANA, DISTRICT – MUZAFFARPUR – 842001. ......... OPPOSITE PARTIES. With Cr. Misc. No. 7841 of 2009 1. RAMESH KUMAR AGARWALA, SON OF LATE CHATURBHUJ AGARWAL. 2. RADHA DEVI AGARWAL, WIFE OF RAMESH KUMAR AGARWAL. 3. ASHISH KUMAR AGARWAL @ ASHISH AGARWAL, SON OF RAMESH KUMAR AGARWAL. 4. SUNITA AGARWAL @ NEELU KUMARI, DAUGHTER OF RAMESH KUMAR AGARWAL. ALL RESIDENT OF MOHALLA “GODAWARI” BUILDING IST FLOOR, NO. 1 DR. ASHUTOSH SHASTRI ROAD, POLICE STATION BELIAGHATA, DISTRICT SOUTH 24 PARGANA, KOLKATA – 700010 (WEST BENGAL). ..................... PETITIONERS. Versus 1. STATE OF BIHAR 2. SUNITA AGARWAL, EX-WIFE OF SRI SUNIL KUMAR AGARWAL, DAUGHTER OF RAMESH CHANDRA SINGHANIA, RESIDENT OF MOHALLA – NORTH CHURCH ROAD, GANDHI MAIDAN, P.S. CIVIL LINES, DISTRICT – GAYA AND PRESENTLY WIFE OF SUSHIL KUMAR SINGHANIA AT PRESENT RESIDING AT C/O. SUSHIL KUMAR SINGHANIA, ASHISH HANDLOOM, BANK ROAD, SUTAPATTY, P.S. – TOWN THANA, DISTRICT – MUZAFFARPUR-842001. ................. OPPOSITE PARTIES. ----------- 04/ 03.01.2011 Heard. 2. This is a petition for quashing the order dated 19.01.2009 passed in G. R. No. 2659 of 2005, Tr. No. 1254 of 2008 in connection with Civil Lines P.S. Case No. 261 of 2005 dated 12.11.2005 passed by the learned Sub- 3 Divisional Judicial Magistrate, Gaya. 3. The prosecution case as alleged in the fardbeyan of the informant Sunita Agarwal is that her marriage was solemnized with Sunil Agarwal on 13.05.2003 and after the marriage she went to Sasural in the District of South 24 Pargana, West Bangal and it is alleged that demand of Rs.5,00000/- was made and she was subjected to cruelty for non-fulfilment of the demand both physically and mentally. It is further alleged that in the mean time she became pregnant but her husband refused to get her examined by any Doctor and by force took him to the Maika and said that if she has to return to her Sasural then abide by what his parents asked her to do. It is further alleged that she blessed with a child and again went to Sasural and she was again subjected to cruelty then she informed her parents and they came and shown their inability to meet the demand and accused person asked to take Sunita Agarwal and they will keep Sunita Agarwal only when the demand will be fulfilled and then the Mayaka people took the victim. It is alleged that again on 24.04.2005, Naihar people went to Sasural and asked him to keep Sunita and her children and then the people 4 kept her for some time and again started demanding and she was assaulted by the mother-in-law and father-in-law by fists and slaps and then she informed her father, brother and uncle who took her to keep her away. However, on the complaint and the statement of the complainant and the witnesses the cognizance was taken. However, form the impugned order it appears that a petition was filed by the accused persons on 18.12.2008 under Section 177 of the Cr.P.C and considering the rejoinder by the prosecution and after hearing the case at length passed the impugned order passed on 19.01.2009 rejecting the petition. 4. Learned counsel for the petitioners, however, contended that no part of the occurrence alleged in the complaint petition is with regard to the offence at Gaya and it has been asserted that other offence alleged has occurred at Kolkatta and hence Gaya court has no jurisdiction to take cognizance and has relied upon decision reported in 2004 (8) SCC 100 (Y. Abraham Ajith & Ors. Vs. Inspector of Police, Chennai & Anr.), 2008 (11) SCC 103 (Bhura Ram & Ors. Vs. State of Rajasthan & Anr.) as well as unreported decision passed in Cr. Misc. No. 42478 of 2009 dated 19.03.2010. It has further been 5 contended that prior to the institution of this complaint case, the petitioner filed a Sanaha to the Officer-In-Charge to Beliaghata Police Station on 30.03.2005 which is Annexure – 2 and further a criminal case was filed in the court of Fast Track Court IVth, Alipor for the dissolution of marriage under section 13(1) (a) and 1(b) of the Hindu Marriage Act and even a notice was also issued in the said matrimonial suit and it has further been contended that in the said complaint case and in the complaint case filed by the complainant a compromise entered into between the parties in consequence the bail was grated and hence has relied upon decision reported in 2010 (8) SCALE 131(Reeti Gupta & Anr. Vs. State of Jharkhand & Anr.) and further relied upon decision reported in 2008 (2) SCC 561 (Onkar Nath Mishra & Ors. Vs. State (NCT OF DELHI) & Anr.). 5. Learned counsel for the complainant, however, contended that there is allegation that she was subjected to cruelty and was taken to Gaya by the husband by force left her at Gaya and thereafter several times the petitioner went to Kotkata subjected to cruelty and send back and hence submits that part of the cause of action has 6 arisen at Gaya and has placed reliance upon decision reported in 2007 (2) PLJR 786 (Karuna Kant Pandey & Ors. Vs. State of Bihar & Anr.) as well as decision reported in 2007 (1) PLJR 704 (Pappu Singh Vs. The State of Bihar & Anr.) and further contended that once the trial court has framed the charge, the trial must proceed in the superior court and entire evidence from the prosecution could be placed on record and further contended that merely because a divorce has been filed prior to that itself not in the prosecution absolved the accused persons with regard to the subsequent case lodged by the complainant. 6. Hence, on the rival submission of the parties, the question for consideration is whether the order impugned dated 19.01.2009 rejecting the petition suffered from any illegality and whether the prosecution case can be quashed in view of the mala fide prosecution instituted by the complainant and further in view of the compromise. However, by the impugned order the learned Magistrate has taken into consideration the allegation and rejected the petition mainly on the ground that there is allegation in the complaint petition that when she asked for medical treatment it was denied and forcibly took her to Gaya in 7 her Maika and told that if she wants to return in her Sasural, she will have to get the expectations of her father and mother-in-law fulfiled and further that the informant has herself mentioned in the written report about the happening of some part of the occurrence in her Maika at Gaya which comes under the Civil Lines Police Station and taking into consideration Section 177 and 178 of the Cr.P.C held that the some part of the occurrence also occurred at Gaya. 7. However, learned counsel for the petitioners, has challenged the finding on the ground that whatever alleged that the occurrence has been alleged at Kolkatta and there is only one line in the complaint petition that her husband by force took her to Mayaka and said that if she has to again return back to the Sasural then abide by the command of his parents and hence submits that this one line neither there is her nor specific about subjecting cruelty. 8. However, taking into consideration the submission of the respective parties, in the facts and circumstances of the case there is allegation that after the marriage the informant went to Sasural at Kolkatta and 8 where she was subjected to cruelty for non-fulfilment of the demand of dowry and in the complaint petition it has been specifically asserted. However, there is specific allegation that her father-in-law Ramesh Kumar Agarwala, mother Radha Devi Agarwala, husband Sunil Kumar Agarwal were sitting together, called her and demanded Rs.5,00000/- and asked her to father to remit. 9. However, taking into consideration these facts and further allegation that they have subjected her cruelly, she was taken to Maike by force by her husband and where it was constituted offence at Gaya whether give jurisdiction. 10. The learned counsel for the petitioners relied upon decision reported in 2008 (11) SCC 103 (Bhura Ram & Ors. Vs. State of Rajasthan & Anr.) that the complaint lodged at Sri Ganganagar was sent for instituting FIR at Ganganagar though the marriage was solemnized at village Ramsara, Tahsil-Abohar, District – Firozpur and right from marriage the complainant and her husband Ravinder Kumar were living in Punjab with her in-laws and her husband died and she is residing at Ganganagar along with her matrimonial relations and plea 9 was taken that since the offence under Section 498A being a continuing offence, the complaint cannot be dismissed on the ground that it was time barred and still is continuing within the local area of Rajasthan where the present complainant is living and in the facts and circumstance of the case since no offence was occurred in Ganganagar and hence the complaint was dismissed. 11. However, in decision reported in 2004 (8) SCC 100 (Y. Abraham Ajith & Ors. Vs. Inspector of Police, Chennai & Anr.) where it has been held that the complainant left the husband on 15.04.1997 on account of alleged dowry demand by the husband and left a place N and came to Channai and all the allegation took place at Nagar and under the circumstance held that court at Channai did not had jurisdiction and quashed the proceeding. The further reliance has been placed upon unreported decision in Cr. Misc. No. 42478 of 2009 passed on 19.03.2010, where the fact that the entire cause of action verbatim read discloses no cause of action at Gaya and hence held that Gaya court has no jurisdiction. 12. However, all the decisions relied upon are with respect to the fact where none of the cause of action 10 arose at a place within the jurisdiction of the court where cognizance taken and so held that court where cognizance had been taken has no jurisdiction. 13. However, under the fact and circumstance of the case at hand there is allegation of subjecting cruelty and husband took her to Gaya by force during her pregnancy and left there at Gaya with a threat to abide by the illegal demand made by his parent apparently show that part of cause of action arose at Gaya and to give jurisdiction to Gaya court. 14. However, Section 177 of the Cr.P.C mentions that every offence was ordinarily be enquired and tried by court within whose legal limit it was committed. However, the ordinarily in Section 177 of the Cr.P.C signifies the general rule. However, the exceptions are in 178 and 179 of the Cr.P.C which the offence committed in one legal area and partly in another it may be enquired into and tried by the court having jurisdiction over any of such local area where the part of the occurrence took place and Section 179 of the Cr.P.C as a fact and circumstance is where the consequence ensues. 15. Learned counsel for the opposite party, 11 however, relied upon 2007(2) PLJR 786 (Karuna Kant Pandey & Ors. Vs. State of Bihar & Anr.) where the allegation that after marriage of victim taken to Varanasi at a place of husband and burnt to death and hence Bhabhua court has no jurisdiction as no part of cause of action held at Bhabhua. 16. Considering Section 177 and 178 of the Cr.P.C that dowry demand continue through out the occurrence such demand was made at Bhabhua and Varanasi and deceased died of dowry death because of dowry demand and sending wife back to her parent and not calling her back from one transaction and considering of total allegation held that the offence could be tried by court of either of the places. 17. However, having regard to the fact that the allegation made in the FIR that the demand of dowry continue throughout the entire occurrence and such demand was made at Bhabhua and Varanasi and held that the Bhabhua court has held that the Bhabhua court has territorial jurisdiction and decision reported in 2007(1) PLJR 704 (Pappu Singh vs. The State of Bihar & Anr.) that the cause of action taken place at two different place 12 and held that Section 178 of the Cr.P.C was applied. 18. However, having regard to the facts and circumstances apparent on the complaint petition, the occurrence took place at Kolkata. However, there is allegation at the time of delivery her husband took her to Maika and even demanded and even directed to abide by the demand of the parents and hence in sum and substance a part of the offence can be said to have occurred at Gaya and hence the Gaya court has jurisdiction. 19. However, the next question is a mala fide that the complaint petition was filed is mala fide as it was filed after the notice issued in the matrimonial case and even earlier complaint filed by the complainant. However, so far decision relied upon by the learned counsel for the petitioners reported in 2010 (8) SCALE 131 (Preeti Gupta & Anr. Vs. State of Jharkhand & Anr.) is concerned, where there is allegation of demand of dowry. However under the facts and circumstances of the case, the petitioners sister-in-law has been held to be permanently residing at Gujarat and she had never stayed with the complainant or her husband and under the facts and circumstances it was held and the fact not disputed that the 13 appellant never lived with the complainant last more than and hence in that facts and circumstances of the case no offence is said to have made out and in the facts and circumstances decision reported in 2010 (8) SCALE 131 (Supra) is not applicable and in decision reported in 2008 (2) SCC 561 (Onkar Nath Mishra & Ors. Vs. State (NCT OF DELHI) & Anr.) the admitted fact was the complainant after 03.07.1994 had never lived with appellant 1 and 2 and the allegation was held to be fake and hence the ratio decided in these cases are not applicable in the facts and circumstances of the case. 20. However, having regard to the fact that there is specific allegation and the part of the occurrence in the complaint itself shows specific act of commission and omission making out an offence and hence I do not find any merit in the petition and hence the criminal miscellaneous petition is hereby rejected. Kundan (Gopal Prasad, J.)