IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.31212 of 2007 1. ASLAM KHAN @ ASLAM ANSARI, son of Malim Khan 2. Molim Khan @ Molim, son of Ainul Khan 3. Roshan Khatoon wife of Molim Khan 4. Chand Khan @ Chand Ansari son of Molim Khan 5. Ainul Khan @ Md. Aainul Ansari son of late Reyasat Ansari 6. Sairul Khatoon wife of Ainul Khan All resident of village Irba, P.S. Ormanjhi, District Ranchi Versus 1. THE STATE OF BIHAR 2. Md. Tahir Ansari, S/o Suleman Ansari, village Sepra Near Police Line, P.S. Dumra, District Sitamarhi ----------- 3. 3.9.2009 Heard counsel for the petitioners and the counsel for the State as also counsel for the informant O.P.No.2. The order taking cognizance for offences under sections 304(B), 201(A) and 201(B) of the Indian Penal Code is sought to be assailed on three grounds, namely: (a) It is a case of no offence. (b) The court taking cognizance had no jurisdiction, inasmuch as no part of occurrence had taken place within the territorial jurisdiction of that Police Station or in fact in the district of Sitamarhi; and (c) Inordinate delay in lodging of the complaint case. Substantiating and expanding the 2 submissions on the aforementioned aspects learned counsel for the petitioners has tried to impress upon this Court that admittedly the daughter of O.P.No.2, the deceased victim lady, was married in the district of Sitamarhi but then as the husband and his family were residing at Irba, Ranchi, the cause of action for the offence under section 304B had taken place only within the territorial jurisdiction of the court at Ranchi. In this context he also placed reliance on the judgment of the Apex Court in the case of Y. Abraham Ajith & ors. vs. Inspector of Police, Chennai & anor., reported in AIR 2004 SC 4286, to contend that if no part of cause of action would arise within the territorial jurisdiction of the court where the complaint has been filed, the court will have no jurisdiction to entertain the complaint much less take cognizance thereof. Mr. Ashok Kumar Mishra, learned counsel appearing on behalf of O.P.No.2, would submit that it is a case of 304B of the Indian Penal Code and the daughter of O.P.No.2 had admittedly died within seven 3 years of her marriage, the date of marriage being some time in the year 2002. He would, therefore, submit that if such death would be done to dowry death as defined u/s 304B I.P.C. and part of demand of dowry was also made within the district of Sitamarhi as is clear from paragraph 1 of the complaint petition itself relating to demand of motorcycle by way of dowry, the applicability of the provisions of section 177 Cr.P.C. will have to be read in the context that part of the offence was also committed at the first place of demand of dowry. He has in this regard also placed reliance on a judgment of this Court in the case of Karuna Kant Pandey & ors. vs. State of Bihar & ors., reported in 2007(2) PLJR 786, wherein this Court taking into consideration the demand of dowry as alleged in the F.I.R. had distinguished the judgment of the Apex Court in the case of Y. Abraham Ajith (supra). In the opinion of this Court Mr. Mishra seems to be correct, inasmuch as if the dowry death as defined u/s 304B takes place and the allegation relating to demand 4 of dowry is also at the place of marriage it cannot be said that the first place where such demand of dowry was made will have no jurisdiction to entertain the complaint emanating from the allegations relating to section 304B. As a matter of fact the Apex Court also in the case of Y. Abraham Ajith (supra) had only explained this aspect of the matter in relation to offence under section 498A I.P.C. by holding that if no part of cause of action relating to torture, physical or mental, was at the place where the complaint was filed and such torture was only at the matrimonial home, the place of residence or parental home of the victim lady, would not give a cause of action for maintaining of the complaint case. It is apparent from the reading of the aforementioned judgment of the Apex Court that the ratio therein was laid down with specific facts of that case, inasmuch as there was no dispute that no part of cause of action has taken place at Chennai. Here the case is just opposite inasmuch as the complaint petition itself mentions of demand of dowry at the time of marriage at 5 Sitamarhi (Yahin as referable to in the complaint). It is this aspect of the matter which was subsequently gone into by this Court in the case of Karuna Kant Pandey (supra). In paragraph 8 of the said judgment it was held as follows: “ From the allegations made in the F.I.R. it is very much clear that the dowry demand continued throughout the entire occurrence. Such demand was made at Bhabhua and Varanasi. The deceased died a dowry death. Because of dowry demand the deceased was maltreated and humiliated. Demand of dowry and sending the wife back to her parents and not calling her back form one transaction. In the aforesaid situation on a consideration of the total allegation, I find that the offence alleged could be tried by the court of either of places.” The facts of this case and the allegations are somewhat similar to the case of Karuna Kant Pandey (supra) and therefore, this Court must hold that even Sitamarhi court had the jurisdiction to take cognizance of the offence. 6 As with regard to the submission of there being no offence counsel has placed reliance on certain order passed by this Court while granting bail to the accused persons including the petitioner wherein it has been record that after the girl was either abducted or taken away from her matrimonial home in Jharkhand to Allahabad, there was a police case lodged by the husband of the victim lady and Allahabad police had found no clue as with regard to murder of the victim lady. On that basis it is being contended that whatever has been said in the complaint petition relating to the allegations u/s 304B must be held to be false and unbelievable and therefore, not sufficient for taking cognizance. The said submission of the learned counsel for the petitioner, however, cannot be taken into consideration for two reasons, namely, it is a defence version and that cannot be looked into at the time of taking cognizance. That apart whatever has been said by this Court in relation to the ground of bail would not be a material consideration for the learned Magistrate in refusing to take cognizance if 7 on the reading of the compliant petition, which was later on converted into an F.I.R., the police had after full investigation submitted charge sheet against the petitioners. At that stage it would be difficult for this Court to accept that even the defence of the petitioners relating to some instigation at Allahabad could be taken into consideration. Such defence in fact would be available to the petitioners at the time of facing trial. The last submission on behalf of the petitioners relating to delay has to be only noted for its being rejected. The circumstance, in which a complaint petition relating to alleged dowry death of the daughter of O.P.No.2 had taken place, has been fully explained in the complaint petition itself and therefore, if there is also some delay, the same has been duly explained by the complainant. In any event the question of delay again will have to be gone into in the light of the evidence on record and that by itself cannot be a ground for quashing the order taking cognizance which can be only allowed if the following 8 three requirements laid down by the Apex Court in the case of R.P.Kapoor vs. State of Punjab, reported in 1960 S.C. 866, namely, “(i) where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category. (ii) Where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. (iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this claim of cases it is important to bear 9 in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S. 561A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate and ordinarily, it would not be open to any party to invoke the High Court’s inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained.” are fulfilled. This Court would however find that none of the three criterias in this case is attracted and accordingly, this Court finds no error in the impugned order taking cognizance. That being so, this application is devoid of any merit and is hereby dismissed. (Mihir Kumar Jha,J.) Surendra/ 10