Jharkhand High Court

Raj Kumar And Ors vs The State Of Jharkhand And Ors on 18 June, 2013

Equivalent citations: 2013 (4) AJR 656

Author:
Prakash Tatia

Bench:
Chief Justice
,
Jaya Roy
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No. 47 of 2013

Raj Kumar and others ..........Petitioners
Vrs.
The State of Jharkhand and others ...... Respondents

------
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MRS. JUSTICE JAYA ROY
------
For the Petitioners: Mr. Sumeet Gadodia, Advocate
For the Respondents: Mr. Ram Nivas Roy, G.P.III
Mr. S.P. Roy, Adv.(State of Bihar)
Mr. K.K. Singh,Adv.(for private respondent)
------
Reportable Dated 18th June, 2013.

Heard learned counsel for the parties.

2. This writ petition has been filed under
Article 226
of

Constitution of India praying that F.I.R. pertaining to Hathauri

P.S. Case No. 27/2007, dated 2.7.2007 for the alleged offence

punishable under
Sections 498-A
,
,
,
of the Indian

Penal Code read with
Sections 3
and
of Dowry Prohibition Act,

which is now pending in the Court of Additional Chief Judicial

Magistrate, Rosera in the district of Samastipur (Bihar) may be

quashed.

3. Office has raised objection with respect to territorial

jurisdiction of this Court because of the reason that F.I.R. was

lodged in territorial jurisdiction of State of Bihar i.e., within the

territorial jurisdiction of Patna High Court and criminal case in

pursuance of F.I.R. as P.S. Case No. 27/2007 is also pending in

the Court of Additional Chief Judicial Magistrate, Rosera in the

district of Samastipur (Bihar) falling within the territorial

jurisdiction of State of Bihar.
4. Before proceeding to decide the issue of territorial

jurisdiction, it will be appropriate to give the background facts

of the case leading to filing of this writ petition and reaching to

Division Bench of this Court.

5. The petitioner no.1 and respondent no.3 are the husband

and wife. Their marriage was solemnized on 29.06.2001 at

village Arga, P.S. Biroul, District Darbhanga (Bihar). The said

marriage ultimately turned to be not a happy marriage and,

therefore, the petitioner no.1 filed a matrimonial suit no. 99 of

2007 in the Court of Principal Judge, Family Court, Ranchi with

the allegation that after marriage the respondent-wife came

with the petitioner no.1 to his village at Samstipur and

remained there for one week. A daughter was born in march,

2002 out of the said matrimonial wedlock. The respondent was

brought to the petitioner's parents house at Ranchi in

December, 2002 where she remained from 18.12.2002 to

17.01.2003
. Thereafter, allegation of misbehaviour and cruelty

were levelled against the respondent-wife with further

allegation of her suffering from schizophrenia since before the

marriage. In the said divorce petition, the respondent-wife

appeared and filed the written statement and ultimately, after

trial, the trial Court decreed the divorce suit on 14 th September,

2009. The divorce decree was granted on the ground of cruelty

and allegation of mental disorder was rejected by the trial

Court. The trial Court while granting the decree for divorce

awarded the permanent alimony under Section 25 of Hindu
Marriage Act, 1956
of Rs. 3 lakhs to the respondent-wife. Being

aggrieved against the part of the decree i.e., grant of

permanent alimony to the respondent of Rs. 3 lakhs in the

impugned judgment and decree, the petitioner no.1 preferred

the First Appeal No. 199 of 2009. The respondent-wife also

preferred another First Appeal No. 183 of 2010 to challenge the

divorce decree. Both the appeals have already been admitted.

When matter came up for consideration before this Court, this

Court directed the parties to appear before the Secretary,

Jharkhand State Legal Services Authority, Ranchi (JHALSA) and

the matter was taken up by the conciliator for consideration for

arriving at a settlement between the parties. Before the

conciliator, both the parties appeared in person and submitted

separate written settlement applications on 16.07.2012 and the

conciliator, JHALSA, Ranchi submitted the result of the

conciliation between the petitioner no.1 and respondent-wife to

this Court in above First Appeal Nos. 199 of 2009 and 183 of

2010 on 17.07.2012. It appears from the conciliator's report

that the matter has been settled between the parties and it was

agreed by both the parties that petitioner no.1 will make

payment of Rs. 5 lacs against permanent alimony to respondent-

wife and the first installment of that amount, amounting to Rs.

one lac will be paid by the petitioner in the form of bank draft

on 20.07.2012 before this Court. It was also agreed that second

installment of Rs. 4 lacs will be paid by the petitioner no.1 to

respondent-wife within two months or as the date, which may
be fixed by the High Court. It was further agreed by both the

parties that they would file a joint compromise petition in the

criminal proceedings pending in the Court of Additional Chief

Judicial Magistrate, Rosera, Samstipur (Bihar). Both parties

agreed that criminal case will be disposed of after the full and

final payment of the agreed amount of Rs.5 lacs by the

petitioner no.1 to respondent-wife. It was further agreed that

any other cases, if any, between the parties, will also be

disposed of on the basis of compromise. This report came up for

consideration before this Court on 24th July, 2012 and on that

day, learned counsel for the appellant-husband handed over a

demand draft of Rs. one lac to learned counsel for the

respondent-wife. So far as remaining amount of Rs.4 lacs is

concerned, for that purpose, two months time was granted to

the appellant-husband and, therefore, the matter was

adjourned. The matter again came up before this Court on 08 th

October, 2012 and on that day it was pointed out that criminal

case filed under Section 498- A read with
Sections 323
and
/
I.P.C., which is pending in the State of Bihar, has not yet

been withdrawn. Therefore, further time was granted to the

respondent-wife to withdraw the criminal case and it was

ordered that demand draft, which was ready with the

respondent, shall be kept by the learned counsel for the

appellant-husband for the purpose of safety of the interest of

the respondent. Then, on 27th November, 2012, further time

was granted so that the criminal case may be withdrawn by the
respondent-wife. On 5th February, 2013, it was informed by the

learned counsel for the parties that though application has been

submitted by the respondent-wife for withdrawal of the criminal

case before the concerned Court in the State of Bihar but no

order has been passed by the trial Court.

6. It appears that the trial Court did not pass any order

because the trial Court has no jurisdiction to compound or

quash the criminal proceedings as the offences are not

compoundable under Section 320 Cr. P.C. Finding this

situation, the petitioner-husband along with petitioner nos. 2 to

4 has filed this criminal writ petition under
Article 226
of

Constitution of India for quashing of Hathauri P.S. Case No.

27/2007, dated 2.7.2007 for the alleged offence punishable

under
Sections 498-A
,
,
,
of the Indian Penal Code

read with
Sections 3
and
of Dowry Prohibition Act, which is

now pending in the Court of Additional Chief Judicial

Magistrate, Rosera in the district of Samastipur (Bihar).

Learned Single Judge, in view of pendency of matrimonial case

i.e., First Appeal Nos. 199 of 2009 and 183 of 2010, ordered for

placing this criminal writ petition before the Division Bench.

Hence, this criminal writ petition is before us.

7. It also appears from the facts of the case that so far

territorial jurisdiction of the trial Court which passed the

divorce decree in matrimonial case no 99 of 2007 along with

the payment of permanent alimony has not been questioned by

the respondent-wife and the divorce decree was granted by the
trial Court in the State of Jharkhand. Undisputedly, F.I.R. was

lodged in Hathauri police station in the State of Bihar and

thereupon the criminal case has been registered as Hathauri

P.S. Case no. 27/2007. The cause of action for filing the said

F.I.R. and for the trial of the criminal case may have accrued in

territorial jurisdiction of said police station consequential to

under the territorial jurisdiction of the Court of Additional Chief

Judicial Magistrate, Rosera in the district of Samastipur (Bihar)

within the territorial jurisdiction of Patna High Court and

question for consideration before us is that, in the facts and

circumstances of this case, whether Jharkhand High Court has

jurisdiction to quash the criminal proceedings pending in the

court of Additional Chief Judicial Magistrate, Rosera, District

Samastipur in the State of Bihar?

8. According to learned counsel, Shri Sumeet Gadodia,

appearing for the appellant-husband, this Court has jurisdiction

to entertain the petition. Learned Counsel, Shri Sumeet

Gadodia, submitted that a bundle of facts constitutes cause of

action which are necessarily to be placed before the Court for

obtaining a relief by a party and events culminating into

settlement between the parties occurred in the State of

Jharkhand. Even if, assuming for the shake of argument, the

total cause of action for the lodging of criminal case accrued in

the State of Bihar but so far as cause of action for quashing of

F.I.R. and criminal proceeding certainly occurred only within

the territorial jurisdiction of State of Jharkhand where the
parties before divorce resided together and thereafter, the

divorce petition was filed by the petitioner no.1 within

territorial jurisdiction of State of Jharkhand which was duly

decreed by the trial Court in the State of Jharkhand and

thereafter, the petitioner no.1 preferred the First Appeal before

this Court which has been admitted. In the First Appeal, this

Court referred the matter to the Secretary, JHALSA, Ranchi for

exploring the possibility of settlement between the parties and

there both the parties agreed to settle the matter and they

arrived at a settlement within the territorial jurisdiction in the

State of Jharkhand and particularly, in the city Ranchi itself.

This settlement was acted upon by both the parties within the

State of Jharkhand which has duly been recorded by the Court

in the First Appeal and petitioner no.1 handed over a draft of

Rs. one lac to the respondent-wife in the State of Jharkhand

which has been encashed by the respondent-wife. The

respondent-wife willing to settle the matter and further acted

upon on the settlement and submitted an application before the

Court of Additional Chief Judicial Magistrate, Rosera in the

district of Samastipur(Bihar) so as to take benefit of settlement

arrived at in Ranchi, State of Jharkhand. Because of the legal

bar against the said Court i.e., Additional Chief Judicial

Magistrate, Rosera, the said Court was not in a position to

quash F.I.R. or drop the criminal proceedings and, therefore,

kept the application pending before the Court as it is, without

any order. Therefore, cause of action for quashing of the
criminal proceeding accrued within the State of Jharkhand and

particularly, in the city of Ranchi itself.

9. Learned counsel for the petitioner no.1 submitted that

issue of cause of action with reference to
Article 226
of

Constitution of India as it was and after insertion of Clause (1-A)

under
Article 226
and subsequently renumbered as
Article

226(2)
of Constitution of India has been considered by the

Supreme Court in the case of Navinchandra N. Majithia Vrs.

State of Maharashtra and others reported in (2000) 7

SCC 640 . Hon'ble Supreme Court after considering various

judgments in Navinchandra N. Majithia's case held, that it is

well settled that "cause of action" means that bundle of facts

which the petitioner must prove, if traversed to entitle him to a

judgment in his favour. Therefore, the writ petitioner will have

to prove the settlement between the parties for getting the

relief for quashing of criminal proceedings and those events

occurred only in the territorial jurisdiction of this High Court.

Even in the case of Navinchandra N. Majithia (Supra) also, it

has been held by Hon'ble Supreme Court that F.I.R. was

registered in a particular State is not the sole criterion to

decide that no cause of action has arisen even partly within the

territorial limits of jurisdiction of another State. Nor can it be

said that any person can create a fake cause of action or even

concoct one by simply jutting in to the territorial limits of

another State or by making a sojourn or even a permanent

residence therein. The place of residence of the person moving
a High Court is not the criterion to determine the contours of

the cause of action in that particular writ petition. So, the cause

of action is required to be found out from the bundle of facts

and from the bundle of facts, it is essentially required to be

proved for getting relief.

10. Learned counsel for the petitioner further submitted that

in the most recent judgment of Hon'ble Supreme Court

delivered in the case of Jitendra Raghuvanshi and others

vrs. Babita Raghuvanshi and another reported in (2013) 4

SCC 58, Hon'ble Supreme Court in matrimonial disputes held,

that it is the duty of the Courts to encourage genuine

settlements of matrimonial disputes, particularly, when the

same are on considerable increase. Hon'ble Supreme Court also

held that for the purpose of securing ends of justice, Section

320 of Cr. P.C. would not be a bar to the exercise of power of

quashing of FIR,, complaint or the subsequent criminal

proceedings.

11.
Article 226 (2)
of Constitution of India provides that even

authority situated outside the territorial jurisdiction of High

court but cause of action or part of the cause of action accrued

within jurisdiction of High Court, then such High Court can

exercise jurisdiction over the authority situated outside the

territorial jurisdiction of that Court or any other State. In the

case of B.S. Joshi and others Vrs. State of Haryana and

another reported in (2003) 4 SCC 675 Hon'ble Supreme

Court held, that the High Court can exercise its inherent power
and quash the criminal proceedings or FIR or complaint in

appropriate cases in order to meet the ends of justice and and

Section 320 of the Code does not limit or affect the powers of

the High Court under Section 482 of the Code.

12. Learned counsel for the respondent-wife supported the

contentions of the learned counsel for the partitioner and

submitted that dispute has been settled between the parties and

that too long back on 16.7.2012 and both the parties submitted

written application before conciliator, JHALSA, Ranchi for

settling the matter and they have agreed to the terms and

conditions recorded by the conciliator in its minutes/report,

dated 17.07.2012. The respondent-wife already received the

payment of Rs. one lac and because of pendency of criminal

case, she is not getting the rest permanent alimony of Rs.4 lacs

even when the payment is ready with the learned counsel for

the petitioner no.1 for payment to the respondent-wife.

13. We have considered the submission of learned counsel for

the parties and perused the facts of those considered judgments

relied upon by learned counsel for the petitioner.
Article 226(2)

of Constitution of India is as under:

"226.(2) The power conferred by clause (1) to

issue directions, orders or writs to any

Government, authority or person may also be

exercised by any High Court exercising

jurisdiction in relation to the territories

within which the cause of action, wholly or in

part, arises for the exercise of such power,
notwithstanding that the seat of such Government

or authority or the residence of such person is

not within those territories."

14.
Article 226
has been considered by Hon'ble Supreme

Court in the case of Navinchandra N. Majithia (supra) as it

was before insertion of Clause (2) of
Article 226
of Constitution

of India and after insertion of Clause (2) under
Article 226.
It

appears from the said judgment that because of judgment of

Constitution Bench of Hon'ble Supreme Court in the case of

Election Commission Vrs. Saka Venkata Subba Rao

reported in AIR 1953 SC 210, it became necessary to bring

15th amendment to the Constitution by which Clause (1-A) was

added to
Article 226
of Constitution of India and that Clause

subsequently numbered as sub-clause (2) of Constitution of

India by its 42nd amendment.
Hon'ble Supreme Court held, that

object of inserting Clause 2 in
Article 226
was to supersede the

decision of the Supreme Court in the case of
Election

Commission V. Saka Venkata Subba Rao
reported in AIR

1953 SC 210 .
In Navinchandra N. Majithia's case Hon'ble

Supreme Court held, that in view of Clause (2) of
Article 226
,

the power conferred on the High Courts in relation to the

territories within which "the cause of action, wholly or in part,

arises" and it is no matter that the seat of the authority

concerned is outside the territorial limits of the jurisdiction of

that High Court. Hon'ble Supreme Court held that the
amendment is, thus, aimed at widening the width of the area

for reaching the writs issued by different High Courts.

15. The cause of action is a bundle of facts which the

petitioner must prove, if traversed to entitle him to a judgment

in his favour is a well settled law. At this juncture, it will

appropriate to mention here that in a case where relief is

sought against any Government or authority or any party, of

which seat is not within the territory of High Court or the

person is not residing within the territory of the High Court,

then in that situation, if cause of action wholly or in part,

accrued in jurisdiction of High Court, the said High Court may

exercise its jurisdiction irrespective of fact that seat of such

Government or authority or the residence of such person is not

within the territory of High Court. This is very wide conferment

of jurisdiction to recognize the Court's jurisdiction in whose

jurisdiction case of action or part of cause of action accrued

irrespective of place of residence. Therefore, if any person is

seeking remedy against any Government or authority having its

seat outside the territorial jurisdiction of High Court but cause

of action arose in the city over which High Court has

jurisdiction then in that situation, the writ can be maintained in

the High Court where the seat of such Government or authority

is not there. Meaning thereby, the stay and residence of

respondent is not relevant for the purpose of finding out the

jurisdiction of the High Court under
Article 226 (2)
of
Constitution of India but High Court's jurisdiction is by virtue of

accrual of cause of action, wholly or in part.

16. In this case, the petitioner is seeking relief, in fact, not

against the police station or the Court situated within the

territorial jurisdiction of State of Bihar though in a writ

jurisdiction, the criminal proceeding is sought to be quashed

which has been initiated in the said police station and pending

in the Court of Additional Chief Judicial Magistrate, Rosera in

the district of Samastipur(Bihar) within jurisdiction of State of

Bihar and if the proceedings will be quashed, that will be the

proceedings initiated by respondent-wife who is only concerned

person and can be aggrieved against that quashing. In the

present case, the cause of action is the bundle of facts and

which are between the two parties and not the fact relating or

concerning to the police station or the Court. Therefore, the

petitioner in this case is seeking to establish that there is a

compromise between the parties in a matrimonial dispute and

because of that compromise, the criminal case filed by the

respondent be quashed. The respondent-wife is not only not

challenging the jurisdiction of this Court but she had taken part

in the conciliation proceeding within the territorial jurisdiction

of this Court, and in fact beneficiary if criminal proceeding

which she initiated and she cannot withdraw is quashed. Then

in that situation, facts leading to and fact of compromise

between the parties took place only in the Jharkhand State and

have constituted cause of action for quashing the criminal
proceedings. If we take a strict technical view, for quashing of

criminal case, no event or fact leading to compromise occurred

in the State of Bihar or within the territory where the criminal

case is pending, then in that situation,
Article 226 (2)
of

Constitution of India empowers this Court to pass appropriate

order which may have its effect in the territory of State of Bihar

as the Court in question is situated in the State of Bihar. In the

case of B.S. Joshi and others (Supra) in para-14, it has been

specifically held by Hon'ble Supreme Court, which is as under :

"14. There is no doubt that the

object of introducing Chapter XX-A

containing Section 498-A in the
Indian

Penal Code
was to prevent torture to a

woman by her husband or by relatives

of her husband. Section 498-A was

added with a view to punishing a

husband and his relatives who harass

or torture the wife to coerce her or

her relatives to satisfy unlawful

demands of dowry. The hypertechnical

view would be counterproductive and

would act against interests of women

and against the object for which this

provision was added. There is every

likelihood that non-exercise of

inherent power to quash the
proceedings to meet the ends of

justice would prevent women from

settling earlier. That is not the

object of Chapter XX-A of the
Indian

Penal Code
."

17. In view of Judgment of Hon'ble Supreme Court, it is clear

that no hypertechnical view can be entertained which would be

counterproductive and would act against interests of women

and against the object for which provision of Section 498- A has

been added in
Indian Penal Code
. Hon'ble Supreme Court in

the recent judgment of Jitendra Raghuvanshi and others

(Supra) has considered the earlier several judgment and in

para- 15 and 16 held as under:

15. In our view, it is the duty of the
courts to encourage genuine settlements
of matrimonial disputes, particularly,
when the same are on considerable
increase. Even if the offences are non-

compoundable, if they relate to
matrimonial disputes and the Court is
satisfied that the parties have settled
the same amicably and without any
pressure, we hold that for the purpose of
securing ends of justice, Section 320 of
the Code would not be a bar to the
exercise of power of quashing of FIR,
complaint or the subsequent criminal
proceedings.

16. There has been an outburst of
matrimonial disputes in recent times. The
institution of marriage occupies an
important place and it has an important
role to play in the society. Therefore,
every effort should be made in the
interest of the individuals in order to
enable them to settle down in life and
live peacefully. If the parties ponder
over their defaults and terminate their
disputes amicably by mutual agreement
instead of fighting it out in a court of
law, in order to do complete justice in
the matrimonial matters, the courts
should be less hesitant in exercising
their extraordinary jurisdiction. It is
trite to state that the power under
Section 482 should be exercised sparingly
and with circumspection only when the
Court is convinced, on the basis of
material on record, that allowing the
proceedings to continue would be an abuse
of process of court or that the ends of
justice require that the proceedings
ought to be quashed. We also make it
clear that exercise of such power would
depend upon the facts and circumstances
of each case and it has to be exercised
in appropriate cases in order to do real
and substantial justice for the
administration of which alone the courts
exist. It is the duty of the courts to
encourage genuine settlements of
matrimonial disputes and Section 482 of
the Code enables the High Court and

Article 142
of the Constitution enables
this Court to pass such orders.
18. In view of para-16 of judgment of the case of Jitendra

Raguuvanshi and others(Supra) the courts duty while

exercising jurisdiction under
Article 226
in the matter of

quashing of criminal case is that before passing such order the

Court should satisfy itself fully from entire facts and

circumstances and materials on record that allowing the

proceeding to continue would be an abuse of process of Court

or that the end of justice require that the proceedings ought to

be quashed.

19. Therefore, in view of the above discussions, we are of the

considered opinion that in this case, cause of action for

quashing of criminal proceedings arose in the State of

Jharkhand giving rise to cause of action for filing the petition

under
Article 226
to the petitioner and the said quashing is in

the interest of both the parties and would definite it is in the

interest of justice that the dispute including the quashing of

criminal case will entitle respondent-wife and the petitioner to

take the benefit of settlement including by getting alimony as

agreed by the parties.

20. At this juncture, we may further mention here that the

parties settled the dispute on 16.7.2012 and the settlement was

acted upon and the respondent-wife took the benefit of the

settlement by receiving Rs. one lac against the permanent

alimony dues. Then, the respondent-wife moved an application

before the Court of Additional Chief Judicial Magistrate, Rosera

in the district of Samastipur(Bihar) on 27.11.2012. Today also,
the respondent-wife is willing to settle the matter totally and,

therefore, this Court is satisfied that it is bonafide settlement

between the parties and sufficient time was available to the

respondent-wife to change her mind, if there was no willingness

to settle the matter. Therefore, in that situation, we are of the

considered opinion that the proceedings initiated after lodging

of F.I.R. pertaining to Hathauri P.S. Case No. 27/2007, dated

2.7.2007 for the alleged offence punishable under
Sections

498-A
,
,
,
of the Indian Penal Code read with
Sections
and
of Dowry Prohibition Act, which is now pending in the

Court of Additional Chief Judicial Magistrate, Rosera in the

district of Samastipur (Bihar) is liable to be quashed. Hence,

this writ petition is allowed overruling the objection of

territorial jurisdiction and the proceedings initiated after

lodging of F.I.R. pertaining to Hathauri P.S. Case No. 27/2007,

dated 2.7.2007 for the alleged offence punishable under

Sections 498-A
,
,
,
of the Indian Penal Code read with

Sections 3
and
of Dowry Prohibition Act stands quashed.

21. A copy of this order shall be submitted by both the parties

separately to the Court of Additional Chief Judicial Magistrate,

Rosera in the district of Samastipur (Bihar) so that

consequential order may be passed in that proceedings.

(Prakash Tatia,C.J.)

(Jaya Roy, J.)

Sudhir