IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2181 of 2008 1. SAMINA KHATOON @ SHAMIYA KHATOON, W/o Abdul Gaffar, R/o Chack Sikander, P.S. Biddupur, District Vaishali 2. Md. Mustaqueem, Son of late Abdul Karim, R/o Kazi Mohalla Maner, P.S. Maner, District – Patna 3. Guddu, Son of Md. Mustaqueen 4. Nazma Khatoon, W/o Md. Mustqueen 5. Pappi Khatoon, D/o Md. Mustaqueen, All residents of village Kazi Mohalla Maner, P.s. Maner, District – Patna. ……. Petitioners Versus 1. THE STATE OF BIHAR 2. Shahnaz Khatoon , W/o Abdul Gaffar, R/o R/o Chack Sikander, P.S. Biddupur, District Vaishali …… Opp. Parties ----------- For the petitioners : Mr. Helal Ahmad, Advocate For the State : Dr. Mayanand Jha, A.P.P. For O.P. No. 2 : Mr. Shashi Bhushan Pandey, Advocate ---- O R D E R Five of the eleven persons impleaded as accused in Complaint Case No. 442 of 2008 have preferred this application for quashing the order dated 24.5.2006 passed therein by Sri J.G.Singh, Judicial Magistrate, First Class, Motihari, whereby he has taken cognizance of offences under sections 498A, 323, 379 and 406 IPC against all the accused including the petitioners and has directed for issuance of summons. The complainant, one Shahnaz Khatoon, impleaded herein as O.P. No. 2, filed the aforesaid complaint, inter alia alleging that her marriage with Abdul Gaffar took place in the year 1993 and after the marriage she went to the matrimonial home where she for the initial period was treated with care and cordiality but soon after 2 she gave birth to a baby girl, the attitude and the behaviour of her husband underwent a remarkable transformation and she was abused and assaulted by him and when she remonstrated her husband, family members and other relatives would torture her on the allegation that the motorcycle promised to be given at the time of marriage had not been given. It is also alleged that her husband developed illicit relationship with Shamina Khatoon, the wife of his elder brother soon after his death and when she protested against such relationship all the accused would assault her. It is said that her husband eventually married the said Shamina Khatoon whereafter even the parents of Shamina also joined the others in extending inhuman treatment to her and an attempt was also made to set her on fire by sprinkling kerosene oil on 2.3.2006 but the intervention by the neighbours saved the situation for her. Thereafter all her belongings and ornaments were confiscated by the accused persons and she along with the baby girl was ousted from the matrimonial home and since then she has been living in her paternal home. Efforts by the brother of the complainant to settle the differences and pacify the matter proved unsuccessful as the husband refused to take her home and keep her. It is also alleged that one day the husband with some of the accused came to her parental home and abused her which prompted her to file the complaint. As per the complaint petition the occurrences are said to have taken place both at her parental and matrimonial homes during the period 1993 to 2.3.2006. 3 The short issue raised on behalf of the petitioners in assailing the impugned order is that since the entire cause of action admittedly took place in the matrimonial home of the complainant at Chak Sikander in the district of Vaishali, the court at Motihari had no territorial jurisdiction to entertain the complaint and had therefore exceeded its jurisdiction in taking cognizance and as such the impugned order had the implication of being an abuse of the process of the Court. Reliance in support of the submissions was placed on the decisions of Manish Ratan Vs. State of M.P. reported in (2007) 1 SCC 262 and Bhura Ram Vs. State of Rajasthan reported in 2008 (3) PLJR 367 (SC). The submissions of the learned counsel for the petitioners was sought to be countered by the learned counsel for O.P. No. 2 on two primary grounds. It was first sought to be contended that since the learned Magistrate on a consideration of the materials arising in course of enquiry under section 202 Cr.P.C. had taken cognizance, the same could not be tested through this application as the scope of the enquiry was limited only to the ascertainment of the truth or falsehood of the allegations on the materials placed by the complainant for as ascertainment of a prima facie case. Here the Magistrate was not required to weigh the evidence meticulously as if he was holding a trial and even the probable defence of the accused was not to be considered. The submissions of the petitioners were by way of his defence and as such they cannot be considered in this application. 4 It was next contended that since the offence under section 498A IPC was a “continuing offence” within the meaning of section 178(b) and (c) Cr.P.C. and is still continuing even today, the Motihari court was fully justified and had the jurisdiction not only to entertain the complaint but also to take cognizance. Admittedly, according to the complainant she was ousted from the matrimonial home on 2.3.2006. She also asserted in the complaint petition that the cause of action took place between 1993 and 2.3.2006. There is no assertion that she had come to the parental home during this period. The only allegation against the accused resorting to any overt act in her paternal home is after her ouster and appears to have been added to give jurisdiction to the Motihari Court. From the above it would be clear that any overt act constituting an offence under section 498A IPC took place while she was in the matrimonial home within the territorial jurisdiction of the Court at Vaishali. That being the position the court at Motihari had no jurisdiction to entertain the complaint and also take cognizance. Accordingly, the taking of cognizance, so far the petitioners are concerned, is quashed and the application is allowed. Patna High Court, Patna. Dated : The 11th of May, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)