HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
561_A No. 100 OF 2016
Akshay Kachroo and anr…Petitioners
Dr. Ishita Ganjoo…Respondent
Mr. P.N.Raina, Sr. Advocate with Mr. J.A.Hamal,
Ms. Monika Kohli, Advocate
Honble Mr. Justice Janak Raj Kotwal, Judge
:J U D G M E N T :
1. Petitioners have invoked inherent jurisdiction of this Court under section 561-A of the Jammu and Kashmir Code of Criminal Procedure, 1989 (for short, the Code) to seek quashing of a complaint under Section 498-A RPC filed against them by the respondent (hereinafter to be referred as the complainant) in the Court of learned Judicial Magistrate (City Judge), Jammu and proceedings therein including the order of taking cognizance dated 06.02.2016 passed by the learned Magistrate.
2. Heard. I have perused the record.
3. Complainant, Ishita Ganjoo, is wife of petitioner No. 1, Akshay Kachroo and petitioner No.2 is her father-in-law. Marriage between the complainant and petitioner No.1 was solemnized on 12.05.2013 at Jammu. In the complaint lodged by her, it is stated that after their marriage the complainant went to her matrimonial house at Nagpur with the petitioners. She has alleged various incidents of cruelty meted out to her by the petitioners in her matrimonial house at Nagpur. It is alleged inter alia that after she gave birth to a female child on 05.09.2014 the behavior of petitioners became more worse, they consistently harassed and tortured her on this count, saying that having given birth to a female child she should bear all her expenses as they wanted a male child only. She has alleged also that her torture by the petitioners continued with each passing day. She was given beating by petitioner No.1 on 14.10.2015. On 15.10.2015, the petitioners gave beating to her and asked her to call her parents to take her back to their house or else they will throw her out from the matrimonial home. On 25.10.2015, petitioner No.1 started yelling at and beating her mercilessly and even threatened that he would kill the minor child if her parents do not bear their expenses and provide cash and gold to him. She kept crying throughout the night in her room. On 26.10.2015 she left for Jammu and since then she is suffering and in order to maintain herself and her minor daughter she has started working in a private Homeopathic Medical College at Chandigarh. It is alleged by the complainant that on 28.11.2015, petitioner No.2 and his other son came to Jammu and told her that they will take her back to matrimonial home if she leaves the minor child at Jammu and also asked her to give cash to them. Complainant, thus, sought action for commission for offence under Section 498-A read with 34 RPC against the petitioners for treating her with severe cruelty for want of more dowry items as well as cash amount from her parents.
4. Learned Magistrate on taking cognizance in the complaint recorded initial statements of the complainant and two witnesses and issued process against the petitioners for proceeding against them for commission of offence under section 498-A RPC.
5. Petitioners seek quashment of the complaint and the proceedings on the sole ground that a court at Jammu does not have jurisdiction to try the offence alleged to have been committed by the petitioners at Nagpur. It is contended that all the alleged incidents of cruelty have taken place at Nagpur, whereas no such incident is alleged to have taken place in the State of Jammu and Kashmir so a court at Jammu has no jurisdiction to try the offence and entire proceedings being without jurisdiction are illegal.
6. While reading out the complaint, learned Senior Advocate, Mr. P.N.Raina, appearing on behalf of petitioners submitted that all the alleged incidents of cruelty have been committed in the matrimonial house of the complainant at Nagpur so only a court within whose territorial jurisdiction offence has been committed has jurisdiction to try the same, whereas hearing of complaint by a Magistrate at Jammu is without jurisdiction and a sheer abuse of process of court. Learned Senior Advocate contended that whatever is alleged to have happened at Jammu on 28.11.2015 cannot be treated as an offence of cruelty or continuation of cruelty as it was evidently a reconciliatory effort by father-in-law and the brother-in-law of the complainant. The complaint as well as the proceedings therein, therefore, are liable to be quashed by this Court in exercise of jurisdiction under section 561-A the Code. Mr. Raina relied upon Amarendu Jyoti and ors. v. State of Chhattisgarh and ors. (2014) 12 SCC 362, Bhura Ram and ors. v. State of Rajasthan and anr. (2008) 11 SCC 103 and Y. Abraham Ajith and ors. v. Inspector of Police, Chennai and anr. (2004) 8 SCC 100.
7. Per contra, Ms. Monika Kohli, learned counsel appearing on behalf of the complainant, while not disputing legal position as regards jurisdiction of a court to try an offence, submitted that offence of cruelty punishable under section 498-A the Code is a continuing offence, which is generally committed more than once at more than one places and is a continuing offence also for the reason that the effect of cruelty meted out to a woman continues in her mind even after the act has been committed. Learned counsel argued that the incidents of cruelty were meted out to the complainant, mainly, in her matrimonial house at Nagpur, effect thereof had been haunting her even after she left her matrimonial house and one such incident took place in her parental house at Jammu on 28.11.2015 so a court at Jammu has the jurisdiction to try the petitioners for commission of the continuing offence of cruelty at Nagpur as well as Jammu. Learned counsel thus submitted that case is covered under paras 2 and 3 of section 182 of the Code. Learned counsel placed reliance on State of Himachal Pradesh v. Tara Dutt, 1999 Supp (4) SCR 514, Sujata Mukerjee v. Parshant Kumar Mukerjee, (1997) 5 SCC 30 and Judgment dated 06.05.2014 of Delhi High Court in Dr. V.B.Bhatia and ors. v. State of Haryana, WP(Crl.) 1771/2012.
8. Sections 177 to 188 of the Code deal with the place of inquiry or trial of an offence. Sections 177 and 182 are relevant for determination of the question here arising. These two sections read:
177. Ordinary place of inquiry and trial. Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed. 182. Place of inquiry or trial where scene of offence is uncertain or not in one district only; or where offence is continuing, or consists of several acts.-when it is uncertain in which of several local areas an offence was committed, or Where an offence is committed partly in one local area and partly in another; or Where an offence is a continuing one; and continues to be committed in more local areas than one; or Where it consists of several acts done in different local areas; It may be inquired into or tried by a Court having jurisdiction over any of such local areas.
9. Section 177 of the Code lays down the general and a simple rule that an offence shall be inquired into and tried by a Court within whose local limits of jurisdiction it has been committed. To say otherwise, Court having territorial jurisdiction over the place of occurrence has the jurisdiction to inquire into or try the offence. It would, therefore, mean that ordinarily only a Court at one place has the jurisdiction to inquire into or try an offence. This rule, however, is subject to several exceptions contained in sections 179, 180, 181 and 182, which make it possible for courts at more than one places to inquire into or try an offence or trial of an offence by a court other than that in whose jurisdiction offence has been committed. Section 178, however, vests power in the Government to direct any case or class of cases committed for trial in any district may be tried in any Sessions Division, notwithstanding the general rule provided under section 177.
10. Section 182 of the Code provides for a set of such exceptions to the general rule and makes possible for inquiry into or trial of an offence at more than one places. These exceptions are:
When it is uncertain in which of several local areas and offence was committed or When an offence is committed partly in one local area and partly in another or Where an offence is continuing one and continues to be committed in more local areas than one or Where it consists of several acts done in different local areas. In all such cases inquiry or trial can be conducted by a court having jurisdiction over any of such local areas.
11. Section 182 of the Code corresponds section 178 of the Code of Criminal Procedure, 1973 (for short, the Central Code) where, however, the four paragraphs contained in Section 182 of the State Code are cataloged as Clause (a) to Clause (d). Question raised for consideration in this petition is, whether the offence of cruelty allegedly committed by the petitioners is covered under paragraph 2 and/or paragraph 3 of section 182 clauses (b) & (c) of the Central Code and a court at Jammu has the jurisdiction to try the offence.
12. Petitioners in this case are alleged to have committed an offence defined and punishable under section 498-A RPC. Section 498-A reads:
498-Husband or relative of husband of a woman subjecting her to cruelty: Whoever, being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a terms which may extent to three years and shall also be liable to fine. Explanation:- For the purposes of this section cruelty means:-
(a) any willful conduct which is of such nature as is likely to drive the woman to commit suicide or to cause grave injury to danger to life, limb or health whether mental or physical of the woman; or
(b) harassment of a woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
13. In Shujata Mukerjee, (1997) 5 SCC 30 (supra), cited on behalf of the complainant, Supreme Court has observed in para 7 of the reporting:
.we have taken into consideration the complaint filed by the appellant and it appears to us that the complaint reveals a continuing offence of maltreatment and humiliation meted out to the appellant in the hands of all the accused respondents and in such continuing offence, on some occasions all the respondents had taken part and on other occasion, one of the respondents had taken part. Therefore, clause (c) of Section 178 of the Code of Criminal Procedure is clearly attracted. We, therefore, set aside the impugned order of the High Court and direct the learned Chief Judicial Magistrate, Raipur to proceed with the criminal case. Since the matter is pending for long, steps should be taken to expedite the hearing. The appeals are accordingly, allowed. (underlining by me)
14. In Tara Dutt, 1999 Supp (4) SCR 514 (supra), cited on behalf of the complainant, question that was involved related to the period of limitation for taking cognizance of an offence by the court and reference is made to an earlier judgment of the Supreme Court in Anita Vyas (1999) 4 SCC 690, in which question raised for consideration was whether offence under Section 498-A I.P.C is continuing offence and the answer was that the essence of offence in section 498-A, being cruelty, the same is a continuing offence and on each occasion on which respondent was subject to cruelty, she would have a new starting point of limitation.
15. In Y. Abraham Ajith, (2004) 8 SCC, 100 cited on behalf of petitioners, Supreme Court in paragraphs 10 and 11 has held:
“10. As observed by this Court in State of Bihar v. Deokaran Nenshi and Anr. (AIR 1973 SC 908), continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all, that it is one of those offences which arises out of the failure to obey or comply with a rule or its requirement and which involves a penalty, liability continues till compliance, that on every occasion such disobedience or non-compliance occurs or recurs, there is the offence committed.
11 A similar plea relating to continuance of the offence was examined by this Court in Sujata Mukherjee (Smt.) v. Prashant Kumar Mukherjee (1997 (5) SCC 30). There the allegations related to commission of alleged offences punishable under Section 498A, 506 and 323 IPC. On the factual background, it was noted that though the dowry demands were made earlier the husband of the complainant went to the place where complainant was residing and had assaulted her. This Court held in that factual background that clause (c) of Section 178 was attracted. But in the present case the factual position is different and the complainant herself left the house of the husband on 15.4.1997 on account of alleged dowry demands by the husband and his relations. There is thereafter not even a whisper of allegations about any demand of dowry or commission of any act constituting an offence much less at Chennai. That being so, the logic of Section 178 (c) of the Code relating to continuance of the offences cannot be applied.”
16. In Bhura Ram, (2008) 11 SCC 103, cited on behalf of petitioners. Supreme Court, having regard to the fact situation of that case, has held in para 6 of the reporting:
6. The facts stated in the complaint disclosed that the complainant left the place where she was residing with her husband and in-laws and came to the city Sri-Ganganagar, State of Rajasthan and that all the alleged acts as per the complaint had taken place in the State of Punjab. The Court of Rajasthan does not have the jurisdiction to deal with the matter. On the basis of the factual scenario disclosed by the complainant in the complaint, the inevitable conclusion is that no part of cause of action arose in Rajasthan and, therefore, the Magistrate concerned has no jurisdiction to deal with the matter. As a consequence, the proceeding before the Additional Chief Judicial Magistrate, Sri-Ganganagar are quashed.
17. In Amarendu Jyoti, (2014) 12 SCC 362 (supra), cited on behalf of petitioners, the couple after their marriage had resided at Delhi where all the incidents of cruelty were alleged to have taken place and later the wife had gone to stay with her parents at Ambikapur in State of Chhattisgarh where she had lodged FIR under section 498-A I.P.C. against the husband. The High Court of Chhattisgarh in a petition under section 498-A held that having regard to the provisions of Section 178 and 179 of the Code that after respondent No.2 had left the appellants society at Delhi and gone to Ambikapur to reside with her father, the act of cruelty continued and therefore, the offence of cruelty was a continuing offence”. The High Court relied on the fact that the wife was made to abandon her husbands company because of the cruel treatment and compelled to stay at Ambikapur, further, that the wife was subjected to cruelty by telephone calls over which she was threatened and demand of dowry was made. Honble Supreme Court noticed from the FIR lodged by the wife that all the incidents of cruelty alleged by the wife have occurred at Delhi and held in paragraph 11 of the reporting:
11. We find that the offence of cruelty cannot be said to be a continuing one as contemplated by Sections 178 and 179 of the Code. We do not agree with the High Court that in this case the mental cruelty inflicted upon Respondent 2 continued unabated on account of no effort having been made by the appellants to take her back to her matrimonial home, and the threats given by the appellants over the telephone. It might be noted incidentally that the High Court does not make reference to any particular piece of evidence regarding the threats said to have been given by the appellants over the telephone. Thus, going by the complaint, we are of the view that it cannot be held that the Court at Ambikapur has jurisdiction to try the offence since the appropriate Court at Delhi would have jurisdiction to try the said offence. Accordingly, the appeal is allowed.
18. The legal position emerging from the aforementioned authorities cited at Bar can be stated, thus. An offence as a general principle can be committed once and only the Court within whose jurisdiction the offence has been committed will have jurisdiction to try the offence so committed. A continuing offence, however, can be tried both at the place where it is initially committed as well as the place or places where it continues to be committed. A continuing offence as defined by Supreme Court in State of Bihar v. Deokaran Nenshi, (1972) 2 SCC 890, referred to with approval in Y.Abraham Ajith (supra), generally is one of those offences which arise out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion such disobedience or non-compliance, occurs and recurs, there is offence committed. Supreme Court in this case has in paragraph 10 of the reporting drawn the distinction between an offence, which is continuing and an offence which is non -ontinuing in following terms:
The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all.
19. An offence of cruelty defined and punishable under section 498-A RPC from its very nature cannot be a continuing offence as contemplated under paragraph 3 of section 182 of the Code in the sense that it continues to be committed even after its initial commission wherever the woman to whom it is committed may be and thereby gives jurisdiction to a court to try the offence even at a place where such woman opts or is compelled to reside after leaving the matrimonial house. The position, however, would be different in a case where some incidents of cruelty take place even at that place too. This legal position is well settled now in the recent judgment in Amarendu Jyoti and ors. (supra), where Their Lordships have categorically held that offence of cruelty cannot be said to be a continuing one as contemplated by sections 178 and 179 of the Central Code of Criminal Procedure (sections 182 & 179 of the Code).
20. Legal position being clear too, I respectfully find myself in disagreement with the judgment rendered by Honble Delhi High Court in Dr. V. B. Bhatia and ors. cited on behalf of the complainant, to the extent the learned Judge seems to have referred to with approval a judgment of Honble Patna High Court in Arun Khanna v. State of Bihar and anr., 1994 (1) PLJR 513,1994(2) BLJR 961 in which it has been held that if the woman continues to suffer the mental agony or torture as a result of acts done to her by the husband or her relatives forcing her to leave the matrimonial home, it must be said that cruelty is continuing.
21. An offence under section 498-A RPC, however, may be a continuing offence in the literal sense when it comprises of more than one incidents of cruelty by a person committed over a period of time at more than one places. If in a given case incidents of cruelty take place one after the other at more than one places, in that case paragraph 2 of section 182 of the Code can apply as offence can be said to have been committed partly at one place and partly at another and courts at both the places will have the jurisdiction to try the offence. No court will have jurisdiction to try an offence under section 498-A RPC if the offence wholly or partly has not taken place within its territorial jurisdiction.
22. Now coming to the case on hand, a bare reading of, what can be said, well crafted complaint would show that in its paragraphs (3) to (16) it gives a detailed account of various alleged incidents of cruelty having taken place in the matrimonial house at Nagpur. It is only in paragraph 16 that an incident is alleged to have taken place at Jammu. Para 16 in its relevant portion is reproduced:
16. That on 28.11.2015 the accused No.2 and his son (brother-in-law of complainant) came Jammu and asked the complainant that they will take her back to the matrimonial home if they leave minor child at Jammu and also the complainant was asked to give cash to accused persons.
23. It is noticed as it was pointed out by the learned Senior Advocate appearing on behalf of petitioners that complainant in her initial statement recorded by the learned Magistrate, while stating that on 28.11.2015, the petitioners had told her that she can live with her husband at Nagpur provided she leaves her daughter back with her parents, has not supported the allegation that on that day petitioners had asked her to give cash to them. Learned counsel further sought to point out that the two witnesses, whose initial statements were recorded by the learned Magistrate, in their depositions have far exaggerated the incident said to have taken place on 28.11.2015.
24. Omission or exaggeration in the initial statements notwithstanding, what is alleged to have occurred at Jammu on 28.11.2015 by no stretch of interpretation or imagination can be taken as an act of cruelty as contemplated under section 498-A RPC. The term cruelty for the purpose of section 498-A has been given its meaning in the section itself. It means, firstly, any willful conduct of husband of a woman or any relative of the husband which is of such a nature as is likely to derive the woman to commit suicide or to cause grave injury or danger to life, limb or health or, secondly, harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
25. No act of cruelty can be said to have been committed by the petitioners to the complainant at Jammu so taking cognizance of the offence and commencing proceedings for trial of the petitioners by a court at Jammu is sheer abuse of process of court and makes out a case for showing indulgence by this Court in order to prevent the abuse of the process of the court and to secure the ends of justice.
26. Viewed thus, this petition has merit and is allowed. The complaint filed by the complainant, order dated 06.02.2016 and the entire proceedings by the Court of learned Judicial Magistrate (City Judge, Jammu) are quashed.
27. Disposed of.
(Janak Raj Kotwal) Judge Jammu:
20.02.2017 Pawan Chopra