IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No 507 of 2001 For Approval and Signature: Hon'ble MR.JUSTICE C.K.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- RAGINIBEN GUNVANTSINH TANK Versus GUNVANTLAL KESHAVLAL TANK -------------------------------------------------------------- Appearance: 1. Criminal Revision Application No. 507 of 2001 MR JB PARDIWALA for Petitioner No. 1 MR YM THAKKAR for Respondent No. 1-4 PUBLIC PROSECUTOR for Respondent No. 5 -------------------------------------------------------------- CORAM : MR.JUSTICE C.K.BUCH Date of decision: 27/12/2002 CAV JUDGEMENT 1. The petitioner and respondent are the original complainant and ori. accused of Criminal Case No. 1887 of 1999 filed in the Court of Ld. J.M.F.C., Halol, respectively. The petitioner is a legally wedded wife of respondent no. 1-Gunvantlal Keshavlal Tank. Respondents no. 2, 3 and 4 are father-in-law, mother-in-law and sister-in-law, respectively. 2. According to the petitioner, at the time of marriage, stridhan was given to her by her parents, relatives and friends which she has taken with her at her matrimonial home. Therefore, she was forced to leave the matrimonial home and she left the matrimonial home with empty hands. With a view to get her stridhan back from the accused, attempts were made but as no heed was paid by the accused to the request made by the petitioner, she ultimately was compelled to file criminal complaint in the Court of Ld. J.M.F.C., Halol for the offence punishable under sec. 406 of IPC. The complaint was sent for police investigation under sec. 156(3) of CrPC and ultimately on 13.12.1999 the Investigating Agency has filed the charge-sheet in that Court. 3. On 22.11.2000, the respondents i.e. accused persons preferred an application Exh. 9 stating that the complaint filed is a false and concocted complaint and in the facts and circumstances of the case, the ld. J.M.F.C., Halol has no territorial jurisdiction to try the case. Ld. J.M.F.C. after hearing the parties, rejected the said application vide order dated 16.5.2001. The said decision of the ld. J.M.F.C. was challenged by way of filing a Revision Application in the Court of Ld. Sessions Judge, Panchmahals at Godhra. The Ld. Sessions Judge vide judgment and order dated 14.8.2001 allowed the revision application and set aside the order passed by the Ld. J.M.F.C., Halol and further directed to issue the notice to the complainant and to return the complaint to the complainant for presentation of the same in the proper court as per the provisions of section 201 of CrPC. The Original complainant has therefore, now assailed the said decision of the ld. Sessions Judge by way of this Criminal Revision Application. 4. Some other facts being relevant are required to be stated. Undisputedly, the respondent no. 1 has got married as per Hindu rites with the petitioner at Vadodara on 16.5.1985. After marriage, the petitioner started residing with the respondent no. 1 at Adipur, Dist. Kutchh and within a very short period of time, the complainant was forced to leave her matrimonial home and to go back to her parental home. The petitioner had approached the Court of Ld. J.M.F.C., Halol with an application under sec. 125 of CrPC for maintenance and this application has been granted and maintenance of Rs. 500/ has been fixed and ordered to be paid to the petitioner by the respondent no. 1 every month. Simultaneously, the respondent no. 1 also preferred an application under sec. 13 of the Hindu Marriage Act in the Court of Ld. Extra Assistant Judge, Bhuj praying for divorce. This Hindu Marriage Petition No. 28 of 1991 preferred by the respondent no. 1 for divorce was allowed and the decree for divorce was granted. The appeal preferred against the decree of divorce by the petitioner-wife is pending. During all this time, the petitioner was requesting the accused persons to return her stridhan and ultimately in the year 1999 pending her appeal against the decree of divorce, she filed the above criminal complaint. There is one civil suit pending between the petitioner and respondent no. 1-hunsband in the Court of Civil Judge (SD) Vadodara under sec. 18 of the Hindu Adoption and Maintenance Act and the same has been resisted by the respondent no.1 husband. In response to the query raised by the Court, ld. counsel for the respondent no. 1 Mr. Thakkar, after referring the relevant documents has stated before this Court that in the civil suit filed by the petitioner, the petitioner-wife has shown some other address of Vadodara as place of residence and not the address which has been shown in the criminal complaint filed in the Court of Ld. J.M.F.C., Halol. 5. Ld. Counsel appearing for the parties have mainly concentrated their arguments in reference to the provisions of sec. 177 and sub-section 4 of section 181 of CrPC. Mr. Pardiwala has submitted that the ld. Sessions Judge has seriously erred in recording a finding that the Ld. J.M.F.C., Halol has no territorial jurisdiction to try the case against the accused persons and ld. Sessions Judge has lost sight of the fact that the use of the word "Ordinarily" reflected in sec. 177 of CrPC indicates that the provision is general one and must be read subject to the special provisions contained in the Code. It is argued that the Apex Court has taken a view that exception implied by word "Ordinarily" need not to be limited to those specifically provided for by the law and exceptions may be provided by law on consideration of convenience or may be implied from other provisions of law permitting joint trial of offence by the same court. According to Mr. Pardiwala, undisputedly, the petitioner resides at Halol at her parental home. Even before the marriage, the petitioner was also residing at Halol. After marriage when the petitioner was forced to leave her matrimonial home, she came down to Halol and has been residing with her parents at Halol. According to Mr. Pardiwala, ld. Sessions Judge has misinterpreted the sub-section 4 of Sec. 181 of CrPC. While allowing the revision application, ld. Sessions Judge has observed that any offence of criminal breach of trust may be enquired into or tried by the Court within whose local jurisdiction the offence was committed or any part of the property which is subject to the offence was received or retained and as the accused persons reside at Adipur and the stridhan is alleged to have been retained at Adipur, the Court at Halol has no territorial jurisdiction. Mainly Mr. Pardiwala has hammered that sub-section 4 of section 181 of CrPC says that any offence of criminal breach of trust may be enquired into or tried by the court within whose local jurisdiction the offence was committed or any part of the property which is subject to the offence was received or retained or was required to be returned or accounted for by the accused persons. In the present case, according to Mr. Pardiwala, the petitioner-complainant is residing at Halol and the stridhan property is being retained by the accused persons wrongfully at Adipur and the accused persons are under obligation to return this stridhan property to the complainant at Halol which they have failed for which the complaint has been lodged in the court of Ld. J.M.F.C., Halol. So, it would not be legal or correct to say that the ld. J.M.F.C., Halol has no territorial jurisdiction to try the case. On the contrary, according to Mr. Pardiwala, the ld. Sessions Judge ought to have dismissed the revision application holding that the ld. J.M.F.C., Halol can definitely try the criminal case instituted by the petitioner. 6. The second main grievance of Mr. Pardiwala is that the only issue before the Ld. Sessions Judge, Godhra was whether the Ld. J.M.F.C., Halol has territorial jurisdiction to try the offence or not. Ld. Sessions Judge ought not to have commented on the truthfulness or genuineness of the allegations levelled against the petitioner-complainant because such observation is likely to prejudice the cause brought by the complainant. The logic developed by the ld. Sessions Judge in para-9 of the impugned judgment is also not much relevant. The reasons for filing application under sec. 13 of the Hindu Marriage Act praying for divorce is because it is the Court at Bhuj which has jurisdiction to adjudicate Hindu Marriage Petition under the Hindu Marriage Act after Vadodara because the normal place of the residence of the married couple was falls within the territorial jurisdiction of district Kutchh-(Bhuj) and the other place is Vadodara, the place of marriage. So, according to Mr. Pardiwala, it cannot be said that because the divorce petition was preferred at Bhuj the complaint filed by the petitioner-complainant also ought to have been filed at Bhuj. While developing his oral submissions, Mr. Pardiwala has placed reliance on the following decisions: 1) 1996 Cr.L.J. p. 732 (Orissa High Court) Rajaram Pattnaik vs. Indian Metal and Ferro Alloys Ltd. 2) I(1991) D.M.C. 253 ( P & H High Court) Ram Pal @ Ram Lal & Anr vs. State of Haryana & Anr. 3) 1995(3) Crimes p. 326 (Allahabad High Court) Dinesh Kumar & Ors. vs.Lalita Mor & Anr. 7. Learned counsel appearing for respondents Mr. YM Thakkar has submitted that the finding recorded by the ld. Sessions Judge is absolutely in accordance with law because the same is supported by several legal pronouncement including one unreported decision of this court in Criminal Misc. Application No. 4515 of 1996 decided on 5.11.1996 (Coram: S.D. Pandit, J.). Mr. Thakkar has submitted that the petitioner -wife is not residing at Halol and no satisfactory evidence was available on record that she is, on the date of filing of the complaint, was residing at Halol. On the contrary, one civil litigation is pending between petitioner and respondent no. 1 at Vadodara which indicates that she is residing somewhere at Vadodara.This civil proceeding has been instituted by this very petitioner where she has claimed maintenance as Hindu Divorcee under sec. 18 of the Hindu Adoption and Maintenance Act. The complaint at Halol has been filed only with a view to harass the respondents. It was open for the petitioner to pray for return of stridhan in the divorce proceeding initiated at Bhuj. Undisputedly, the parties were residing at Adipur. It is her admission that the stridhan properties were taken at her matrimonial home at Adipur. Evaluation of available facts has been rightly made by the ld. Sessions Judge in para-9 of the impugned judgment. According to Mr. Thakkar alleged incident of refusal to return the stridhan property has occurred at Bhuj when the demand was made and it would not be legal to say that the accused persons are obliged to return the stridhan property at the place where she (i.e. wife) initiates the proceedings. Evidence of residence can be created. According to Mr. Thakkar if the say of the otherside is accepted, than each vindictive wife can drag the husband, as well as her in-laws to the farthest corner of the country. While developing points of his submissions, Mr. Thakkar has placed reliance on the following decisions: 1) 1986 Cri.L.J. p. 2070 (Harjeet Singh Ahluwalia vs. State of Punjab & Anr.) 2) 1997(2) GLH p. 432 (Girdharlal Tenumal Motwani vs. The State of Gujarat & Anr.) 3) 1999 Cri.L.J. p. 4566 (Satvinder kaur vs. State (Govt. of N.T.C. of Delhi) & Anr.) 4) 2000 Cri.L.J. p. 3762 (Mohan Lal & Ors. vs. State) 5) 2000 Cri.L.J. p. 4116 (Vijay Kumar and Anr. vs. Sunita and Ors.) 6) 2000 SC p. 594 (S.I. Rooplal & Anr. vs. Governor through Chief Secretary, Delhi & Ors.,) 8. Both the learned counsel appearing for the parties have submitted that they have made reasonable attempts to locate the direct decision interpreting the scope and ambit of sub-section(4) of sec. 181 of CrPC, especially in reference to the stridhan property, but they are not in a position to point out any decision of this Court on the said point. 9. This decision cited by Mr. Pardiwala in case of Rajaram Pattnaik (supra) propounds the principle that sec. 177 of CrPC adopts the common law of England that all crimes are local and justiciable only by the local court within whose jurisdiction they are committed. This is a general rule and exception to that are found in various Acts. Sub-section 4 of section 181 of CrPC is one of such provision. The Court held that : "In accordance with ordinary rules of construction, special provision in section 181(4) is to ordinarily receive effect unqualified of general provision of section 179. The accused may be prosecuted in terms of section 181 (4) in a Court within whose jurisdiction (a) offence was committed, or (b) any part of property which is the subject to the offence was received or retained, or (c) property was required to be returned or accounted for by the accused person. The three requirements under sub-section (4) are disjunctive, i.e., Court at any one of those places would have jurisdiction to try such an offence. These aspects were highlighted by me is Shri Dhirubhai Hirachand Ambani vs. Shri Tulsi Bhayana (1995)8 OCR 22. In view of the accusations, I find no substance that the learned J.M.F.C., Bhubaneswar lacks territorial jurisdiction." 10. In the case of Rampal @ Ram Lal & Anr., (supra) cited by Mr Pardiwala deals with the scheme of sub-section 4 of section 181 of CrPC. The cited case deals with the articles of dowry which were entrusted to In-laws when the marriage took place. On the point of jurisdiction, the Court held that according to sub-section 4 of section 181 of CrPC, the offence of criminal misappropriation or criminal breach of trust may be enquired into and tried by a Court within whose local jurisdiction the offence was committed or any part of the property was received or retained or was required to be returned or accounted for by the accused person. The case before the Punjab & Haryana High Court was at pre-trial stage and the accused-petitioners had approached for quashing of FIR on the ground of vagueness and also on the point of the lack of jurisdiction. SO, the Court while rejecting the petition treating it to be a premature observed that "at this stage, it cannot be said that the property was not received at Kalanwadi and that it was not required to be returned at village Kalanwadi where the complainant at present resides." In this cited case the investigation was going on but the finding in para-7 of the decision is relevant for our purpose. In the third decision in case of Dinesh Kumar & Ors., vs. Lalita Mor & Anr., (supra), the Allahabad High court deals with the similar important point and it has been held that the court of the place where the wife demands return of her stridhan property will also have territorial jurisdiction to try offence of criminal breach of trust. In this cited case, the Allahabad High Court was concerned with the criminal breach of trust of stridhan property. It is now settled by the decision of the Apex court in case of Pratibha Rani vs. Suraj Kumar & Ors., reported in AIR 1985 SC 628 that the gifts made at the time of marriage of Hindu woman is her stridhan property and the husband though living together with his wife is not entitled to convert the property to his own use without the consent if it was placed in his custody. So, this stridhan property of the complainant entrusted to the accused, if is dishonestly misappropriated or converted to his own huse, he would be guilty of having committed criminal breach of trust as defined in sec. 405 of IPC and would be liable for punishment under sec. 406 of IPC. The legislature has enacted provisions regarding venue of trial of an offence of criminal breach of trust. Sub-section 4 of section 181 of CrPC provides that any offence of criminal misappropriation or criminal breach of trust may be enquired into or tried by a court within whose local jurisdiction the offence was committed or any part of property which is the subject matter of the offence was received or retained or was required to be returned or accounted for by the accused persons. It was argued before the Court that in absence of agreement between the parties, their properties are required to be retained or accounted for at a particular place, than the rule reflected in sub-section 4 of section 181 of CrPC would not apply, but it would be important to refer the report of the Law Commission and also objects and Reasons enacting this sub-section 4 of section 181 in the CrPC in the year 1974. The report says that : ".......In view of the conflicting decisions of various High Court, we recommend that sub-section (2) of S. 181 (now sub-section(4) be amended thus...(same as sub-section (4). We do not think it necessary to limit the additional alternative venue, namely the local area where the property was required ( by law or contract) to be returned or accounted for by the accused persons, to cases where there is no evidence of the offence other than the failure to return or account for the property." 11. According to me, para-8 and 9 of this decision are very important and relevant because they go to the root of the merits and the submissions made before this court. So, I would like to quote the relevant para-8 and 9 in case of Dinesh Kumar (supra): Para-8:- "It is not a sound principle of construction to brush aside the words of statute as being inapposite surplusage, if they can have appropriate application in the circumstances conceivably within the contemplation of the statute. It is incumbent on the Court to avoid a construction, if reasonably permissible on the language, which would render a part of statute devoid of any meaning or application (See Aswani Kumar Ghosh vs. Arbinda Bose and Rao Shiv Bahadur Singh vs. State of U.P.). The Courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. The legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons (See J.K. Cotton Spinning and Weaving Mills v. State of U.P. and State of U.P. vs. Radhey Shyam). Therefore, the last part of the sub-section namely was required to be returned or accounted for has to be given some meaning even where the territorial jurisdiction of a Court is to be ascertained with regard to an offence of criminal breach of trust of stridhan-property is concerned. Another settled principle is that in selecting out of different interpretations the Court will adopt that which is just, reasonable and sensible rather than that which is none of these things as it may be presumed that the Legislature has used the words in that sense which least offends our sense of justice. If the grammatical construction leads to some absurdity or some repugnance or inconsistency with the rest of the instrument, it may be departed from so as to avoid that absurdity and inconsistency (See Holmes vs. Bradifield Rural District Council and Nasiruddin v. State Transport Appellate Tribunal). Therefore, in order to give full meaning and sense to the last part of sub-section(4) of Section 181, it will be proper to hold that without there being any prior agreement to that effect the Court at the place where the property is required to be returned will also have territorial jurisdiction to try the offence. Section 6 of Dowry Prohibition Act provides that where any dowry is received by any person other than the woman in connection with whose marriage it is given that person shall transfer it to the woman within a specified period and the failure to do so makes the person liable for punishment. In P.T.S. Sai Baba v. P. Mangatayaru, the Andhra Pradesh High court held that a woman can file comlaint under section 6 of the Dowry Prohibition Act at the place where she is residing on the ground that it was the duty of her husband to return the dowry, after the specified period at the place where she was residing and the contention that the complaint can only be filed at the place where the dowry was given was repelled. Similarly , in Bhim Singh v. State of Punjab and Surendra Kumar vs. Suman Arora, it has been held that the Court of the place where the woman was residing and had demanded return of her Stridhan-property, would have territorial jurisdiction to try the offence of criminal breach of trust. Hansraj vs. Smt. Savita 1992 All. Cr. R. 265 cited by the petitioners has no bearing on the point in issue as challenge to the jurisdiction of the court to take cognizance of an offence under section 406 IPC at the place where marriage was performed and dowry was given was repelled on the ground that entrustment of property had been done at that place. Para-9:- "Learned Counsel has urged that on the view taken the wife can demand return of the property any where in India and file a complaint there which would cause great harassment to the husband and his relations. In my opinion the difficulty posed is more imaginary thana real. The wife is not likely to demand return of the property at a place where she is not residing as it will be equally inconvenient and difficult for her to prosecute a criminal case at a third place. In view of the reasons discussed earlier the irresistible conclusion is that the place where the wife demands return of her Stridhan-property will also have territorial jurisdiction to try the offence of criminal breach of trust." 12. In case of P.T.S. Sai Baba vs. P. Mangatayaru, reported in 1978 Cr. L.J. p. 1362 referring the provisions of sec. 6 of the Dowry Prohibition Act. The Andhra Pradesh High Court has held that the complainant wife can file the comlaint where she is residing. This finding is recorded by placing reliance on the full Bench decision of the Madras High Court reported in 1960 Cr.L.J. p. 242. Of course the scheme of section 6 of the Dowry Prohibition Act is a special legislation and the scheme indirectly indicates that when the woman (wife) is entitled to property under sub-section (1) can file complaint where she is residing. The present case is not a case of an offence punishable under sec. 6 of the Dowry Prohibition Act and it is a case of criminal breach of trust. But sub-section 4 of section 181 of CrPC has not been considered by the ld. Sessions Judge while dealing with the revision application. 13. One unreported decision of this Court in the case of Girdharlal Tenumal Motwani vs. State of Gujarat & Anr., dated 5.11.1996 (Coram: S.D. PANDIT, J.) is relevant and is placed before the Court by the ld. Counsel appearing for the otherside. The applicant had approached this court for quashing of a complaint registered and process issued by the J.M.F.C. in an offence punishable under sec. 498A, 406, 323, 506920 & 114 of IPC and under sec. 4 and 7 of the Dowry Act, and all the accused were asked to appear on the returnable date. The Court held that the order of issuance of process was without application of mind. On the averments made