SCR.A/22219/1999 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 222 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : ======================================================= NITIN DALPATBHAI CHAUHAN & 8 - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ======================================================= Appearance : MR KJ KAKKAD for Applicant(s) : 1 - 9. MS FALGUNI PATEL APP for Respondent(s) : 1, MR HARNISH DARJI for MR YOGESH S LAKHANI for Respondent(s):2, ======================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA Date : 20/11/2008 ORAL JUDGMENT 1. Heard learned counsel for the applicant, Mr.K.J. Kakkad, learned APP, Ms.Falguni Patel, for the respondent No.1 and learned counsel, Mr.Harnish Darji for Mr.Y.S. Lakhani for the respondent no.2. 2. This petition has been filed by the petitioners- original accused for quashing and setting aside the order dated 13.11.1998 passed in Criminal Revision Application No.118/1997 by the Learned Additional Sessions Judge, Rajkot dismissing the Criminal Revision Application of the petitioners. 3. Initially, the respondent no.2 herein – original complainant filed a complaint against the six SCR.A/22219/1999 2/7 JUDGMENT accused persons, which came to be registered as Criminal Case No.483/1993 for the alleged offences punishable under Section 498(A) read with Section 34 of the Indian Penal Code. However, in view of the purshis vide Exh.9 submitted by the original complainant-wife into the Court of Learned J.M.F.C., Rajkot, said complaint has been finally disposed of by the Learned Magistrate, Rajkot on 03.07.1997. 4. However, thereafter again, second complaint came to be filed against the present petitioners for the alleged offence punishable under Section 498(A) read with Section 34 of the Indian Penal Code, which came to be registered as Criminal Case No.2529/1994 by the respondent no.2 herein in the Court of Learned J.M.F.C., Rajkot, wherein the Learned Magistrate issued process against the present petitioners. 5. Against the aforesaid process issued by the Learned Magistrate, Rajkot, the present petitioners have filed Special Criminal Application, wherein necessary directions were given to the petitioners. 6. In pursuance of said directions, the petitioners SCR.A/22219/1999 3/7 JUDGMENT have filed an application, Exh.16, wherein the Learned Magistrate dropped the proceedings and acquitted the original accused nos.6, 7, and 8 by recalling the process. However, the Learned Magistrate directed to proceed against the original accused nos.1 to 5 and 9. 7. Against the aforesaid order, the original accused nos.1 to 5 and 9 have preferred Criminal Revision Application No.118/1997 before the Court of Learned Sessions Judge at Rajkot and the respondent no.2 herein has preferred Criminal Revision Application No.51/1998 against the acquittal order qua original accused nos.6 to 8. 8. Since aforesaid both Revision Applications have arisen out of the same order, both have been heard together, however, they were decided by separate order, whereby the Criminal Revision Application No.51/1998 has been allowed by quashing and setting aside the acquittal order and Criminal Revision Application No.118/1997 has been rejected, which gave rise to file present petition. 9. It is to be noted that initially, present petition has been filed by the original accused nos.1 to 5 SCR.A/22219/1999 4/7 JUDGMENT and 9, wherein the learned counsel for the petitioners sought permission to join the original accused nos.6 to 8 in the present petition and, hence, vide order dated 19.09.2000, the original accused nos.6 to 8 were permitted to join co- petitioners nos.7, 8 and 9 in the present petition. 10. Learned counsel for the petitioners, Mr.Kakkad has raised question of jurisdiction and placed reliance upon the judgment reported in 1997 (2) GLH 432. 11. Learned counsel for the respondent no.2, Mr.Darji has placed reliance upon the judgment reported in AIR 2005 SC 989, more particularly, Head Note : C. 12. I have gone through the petition filed by the petitioners, the complaint and the impugned order. As far as ingredients of the offence are concerned, it partly reflects from the complaint itself, more particularly, line no.6 of sub-para 2 of para no.2 on page no.3, wherein the complainant has categorically narrated that after the compromise, the accused have again mentally and physically harassed her. Thus, there is averments in the complaint regarding the offence under SCR.A/22219/1999 5/7 JUDGMENT Section 498(A). Therefore, the parties have not pressed above contention at this stage with a liberty to raise the same in the Court below. However, as the request is made by the learned counsel for the respective parties, I have dealt with this petition only on the ground of jurisdiction. As far as jurisdiction is concerned, it is not disputed by the other side that her parental home is at Rajkot and her matrimonial home is at Ahmedabad. As per the averments made in the complaint, the offence has been taken place admittedly in Ahmedabad. I have considered the judgment delivered by this Court reported in 1997 (2) GLH 432, more particularly, paragraph no.3, which reads as under :- “3. It seems that the learned Magistrate has passed an order to issue process without application of ihis mind. He has not read the averments made by the complainant in her complaint. As per her averments made by the complainant in her complaint at Ahmedabad where the accused are residing while she was residing in her matrimonial house. As per her accusation also the property alleged to have been misappropriated was at Ahmedabad and that misappropriation SCR.A/22219/1999 6/7 JUDGMENT has also taken place at Ahmedabad as per her complaint. Thus the averment made in her complaint clearly discloses and show that all the alleged offences had taken place at Ahmedabad. Therefore, in the circumstances the learned Magistrate had no jurisdiction to entertain the said complaint and to issue process. After reading the complaint he ought to have returned the complaint back to the complainant under section of 201 Cr.P.C. for presentation to the proper court. As the order in question has been passed by him without having jurisdiction for taking cognizance of the offence alleged in the complaint. Said order of issue of process passed by the learned JMFC, Vadodara in Cri. Case no. 1693/95 is without jurisdiction, illegal and invalid. However I direct the learned Magistrate to issue notice to the complainant and to return the complaint to the complainant for presentation to the proper court as per the provisions of section 201 Cr.P.C. The matter is disposed of accordingly. Rule made absolute.” 13. I have also considered the judgment reported in AIR 2005 SC 1989, more particularly, Head Note ©, which read as under :- SCR.A/22219/1999 7/7 JUDGMENT “Criminal P.C. (2 of 1974), S.178 – Complaint – Territorial jurisdiction of Magistrate – Office of cruelty to wife and demand of dowry – Most of the acts were committed at place 'M' – Part of it was committed at place 'C' – Court at place 'T' where wife was residing with her parents has no jurisdiction – Complaint transferred to Magistrate at 'C' in view of pendency of matrimonial petitions at 'C'” 14. Under the circumstances, instead of quashing the impugned order, the petitioners-original accused are directed to file a fresh application before the Court below. It is in the fitness of the things that the complaint in question is required to be transferred to the Court of Learned Metropolitan Magistrate, Ahmedabad and on receiving the same, the Chief Metropolitan Magistrate, Ahmedabad is directed to place the same before the appropriate Court. 15. With these observations and directions, this petitioner stands disposed of. Rule is discharged. (R.P.DHOLAKIA, J) /patil