Retrial

Though the word “retrial” is used under Section 386(b)(i) Cr.P.C., the powers conferred by this clause is to be exercised only in exceptional cases, where the appellate court is satisfied that the omission or irregularity has occasioned in failure of justice. The circumstances that should exist for warranting a retrial must be such that where the trial was undertaken by the Court having no jurisdiction, or trial was vitiated by serious illegality or irregularity on account of the misconception of nature of proceedings. An order for retrial may be passed in cases where the original trial has not been satisfactory for some particular reasons such as wrong admission or wrong rejection of evidences or the Court refused to hear certain witnesses who were supposed to be heard.

`De novo’ trial means a “new trial” ordered by an appellate court in exceptional cases when the original trial failed to make a determination in a manner dictated by law. The trial is conducted afresh by the court as if there had not been a trial in first instance. Undoubtedly, the appellate court has power to direct the lower court to hold `de novo’ trial. But the question is when such power should be exercised. As stated in Pandit Ukha Kolhe v. State of Maharashtra (1964) SCR 926, the Court held that:

“An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate Court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of re-trial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons.”

Total or Whole means

In Mangala Prasad Jaiswal Vs. District Magistrate and Others[AIR 1971 All 77 : (1970) 40 AWR 649] , wherein it has been held as follows:-

  1. The meaning of the words ‘total number of members’ is quite plain. It can hardly be disputed that the words ‘total’ and ‘whole’ are synonymous. The dictionary meaning of the word ‘whole’ is ‘total’ and vice versa.

Running an aviation business and operates a non-scheduled air transport service, an air taxi service etc

The Ministry of Civil Aviation issues permits etc

through Director General of Civil Aviation (DGCA)

Regulations :

The Aircraft Act, 1934, and the Aircraft Rules, 1937 read with the Civil Aviation Regulations are as under:

i) Agricultural Aircraft Operators Permit No.1/1993.

ii) Non-scheduled Air Transport Permit No.1/1993.

iii) Air taxi Permit No. 2/1995.

Rule 39A of the Air-Craft Rules 1937 said that the Central Government ‘may’ debar a person permanently or temporarily from holding any licence or rating mentioned in Rule 38 if in its opinion it is necessary to do so in the public interest meaning thereby even if an individual pilot may have been actually found to be violating CAR by not giving six months notice then in such contingency, the Central Government at its discretion may debar the pilot permanently or temporarily from holding the licence.

Corrigendum on House Rent Allowances to the State Government Employees – West Bengal

the State of West Bengal

GOVERNMENT OF WEST BENGAL
FINANCE (AUDIT) DEPARTMENT
NABANNA, MANDIRTALA, HOWRAH-711102

No. 8012-F(P2)/FA/0/2M/206/17(N;B.).

Dated, Howrah, the 2th December, 2018.

CORRIGENDUM

In this Department’s Memorandum No.5839-F(P), dated 09.07.2012, for the words ‘Now, with a view to removing the confusion persisting in the matter the undersigned is directed by order of the Governor to say that Governor is pleased to clarify that as the spirit of the existing provision of the rules goes, in the matter of granting HRA to a State Government employee whose spouse is working in a private organization, where HRA is allowed as a separate element, the HRA of the spouse shall be taken into account as done in the case where spouse is the employee of any Government or semi-Government organization’ please read ‘Now, with a view to clarifying the doubt persisting in the matter, the undersigned is directed by order of the Governor to say that Governor is pleased to clarify that as the spirit of the existing provision of the rules goes in the matter of granting HRA to an employee of State Government /a sponsored / aided Educational Institution / Board / Corporation / Statutory Body / Autonomous Body and / other agencies or other instrumentalities of the State which is / are wholly or substantially owned and / or controlled by the Government, whose spouse is working in a private organization, where HRA is allowed as a separate element, the HRA of the spouse shall
be taken into account as done in the case where spouse is the employee of any Government or semi-Government organization’.

By order of the Governor,
Sd/- H. K. Dwivedi.
Additional Chief Secretary to the
Government of West Bengal.
No. 8012/1 (70)-F(P2)/FA/0/2M/206/17(N.B.).

Dated, Howrah, the 27th December, 2018.


Copy forwarded for information and necessary action to :-

1) The Principal Accountant General (A & E), West Bengal,
Treasury Buildings, Kolkata-700 001.
2) The Director, Treasuries and Accounts, West Bengal,
New India Assurance Buildings (2 nd and 3 rd Floor), 8, Lyons Range, Kolkata-700 001.
3) The Additional Chief Secretary / Principal Secretary / Secretary,
_________________________________________ Department.
It is requested to circulate this Corrigendum to the Offices / Organisation(s) under the control of his / her Department.
4) The Network Administrator, Finance Department.
He is requested to upload this Corrigendum in the Web-Site of Finance Department.

Sd-

Special Secretary
to the Govern ent of West Bengal.

Dealing with Civil Appeal

SUPREME COURT OF INDIA JUDGMENTS

FACTS :

Respondent No.1 had filed a suit before the Munsiff Court in the year 1975 being O.S. No.1004 of 1975 against the predecessor of the Appellants in respect of the suit property. That suit, however, was dismissed on 11.11.1977 against which Respondent No.1 preferred an appeal before the District Court but was unsuccessful due to dismissal of the appeal on 29.02.1980. In the intervening period, the predecessor of the Appellants filed a suit for injunction against Respondent No.1 in respect of the suit property, being O.S. No.1069 of 1976. This suit, however, was dismissed on 25.03.1978 by the Munsiff Court at Trivandrum. The predecessor of the Appellants filed an appeal against the said decision before the District Court which, however, was dismissed on 20.03.1981. Thus, both sides were unsuccessful in getting relief of injunction against the other party in their respective suits.

Respondent No.1 however, filed a fresh suit (from which the present appeal arises) being O.S. No.547 of 1981 before the Munsiff Court at Trivandrum for relief of mandatory injunction and prohibition against the Appellants. In this suit, it has been asserted by the Respondent No.1 that his father bequeathed 59 cents of the property described in Schedule B to the plaint to him and his brother by way of a registered Will. Thus, asserting title over the 59 cents in Survey No.2063, Respondent No.1 sought a mandatory injunction against the Appellants and also a direction that the Appellants shall remove the portion of the building on the western side of the suit property, being an encroachment made by the Appellants. Respondent No.1 further prayed for reliefs of injunction and declaration that he was entitled to put up a boundary wall to separate the two Survey Nos. namely 2061 and 2063, owned and occupied by the respective parties. Respondent No.1 also sought a prohibitory injunction against the Appellants from entering upon the suit property which was in possession of the Respondent No.1.

The Appellants resisted the said suit by filing their written statement. According to the Appellants, Respondent No.1 was not representing his brother Achuthan Nair and the suit for mandatory injunction on the basis of title was bad for non joinder of necessary parties. The Appellants asserted that they were in occupation/possession of Survey No.2061 which had a clear boundary separating the property allegedly owned and occupied by Respondent No.1. Further, the matter in issue in the present suit was already considered in the previous suits filed by the parties and could not be re-agitated once again between the parties. The parties produced evidence in support of their respective claims.

CASE FLOW : 

After considering the rival contentions and the evidence on record, the Trial Court, by the judgment and decree dated 09.02.1990, was pleased to decree the suit in the following words:

“In the result a mandatory injunction is issued directing the defendants to demolish the portion of their building that abuts on the plaint B Schedule property as seen in Exhibit C1 (a) plan. The defendants are also directed to remove the newly erected bathroom and latrine to fill up the pit as shown in Exhibit C1 (a) plan. In case the defendants will not abbey the injunction within a period of three months from today, the plaintiff shall be entitled to have the same demolished and removed through court in execution at the expense of the defendants. The defendants are permanently restrained from trespassing into the plaint B Schedule property, from demolishing its boundary and from making any construction therein after complying the mandatory injunction. Plaintiff is allowed to put up permanent boundary wall on the eastern boundary of plaint B Schedule property through the C.D. line in Exhibit C1 (b) plan. Exhibits C1 (a) and C1 (b) plan will form part of the decree. No costs.”

Against this decision, the Appellants preferred an appeal before the District Judge, Thiruvananthapuram, being Appeal Suit No. 201 of 1990. The first Appellate Court, on the basis of rival submissions, framed the following points for consideration:

“(i) Whether the plaintiff is entitled for fixation and putting up of boundary.

(i) Whether the plaintiff is entitled for a mandatory injunction directing the defendants from demolishing the part of the building which situates in Survey No.2063.

(ii) Whether the plaintiff is entitled to the prohibitory injunction prayed for.

(iii) Whether there is sufficient reason to interfere with the decree of the lower court.

(iv) Reliefs and costs.”

The first Appellate Court allowed the appeal and was pleased to set aside the judgment and decree passed by the Trial Court. The first Appellate Court took the view that on the basis of the Will relied upon by the Respondent No.1- plaintiff, it could be seen that 10 cents out of 59 cents of the property was bequeathed to Achuthan Nair and the Respondent No.1 – plaintiff was allotted the balance 49 cents. The first Appellate Court noted that the said Achuthan Nair was not made party in the suit. The Appellate Court held that the Will was not probated by the Respondent No.1 – plaintiff. On that analysis, it proceeded to hold that the Respondent No.1 – plaintiff was not able to substantiate his title over the whole of the suit property and thus, was not entitled to any relief of mandatory injunction or prohibitory injunction against the Appellants.

Aggrieved by the said decision, Respondent No.1 – plaintiff carried the matter in second appeal before the High Court of Kerala, being Second Appeal No.105 of 1998(D). The High Court entertained the second appeal and framed the following substantial questions of law:

“(i) When a will relied on is not denied or disputed and genuineness is not questioned is the Will still to be strictly proved under Section 68 of the Evidence Act?

(ii) Is not the 1st Appellate Court bound to evaluate the entire oral and documentary evidence in the case?

(iii) When only a portion of the building is abutting into another man’s property is not enough that mandatory injunction alone is sought for and is it necessary that recovery of possession of the site should also be claimed?

(iv) When title and possession of plaintiff is not disputed or denied over the entire property but is denied only in respect of portion on which a building is abutting, should not the Court grant a decree declaring title, possession and injunction in respect of that portion. In a case where there is no distinction demarcating the boundary between the two properties should not the relief of fixation of boundary be granted?”

The relevant portion of the SECOND APPEAL before the High Court reads thus:

“24. In the result, this R.S.A. is disposed of as follows:-

25. Since the prayer for declaration of title was rejected the plaintiff is not entitled to get the mandatory injunction as sought for and to that extent the Second Appeal fails. But in order to see that justice is done to the parties the plaintiff/appellant is permitted to put up a compound wall along the line `MY `YQ’ and `QC’ mentioned above. The plot `DMYQD’ shall be excluded and that plot shall be used and possessed by the defendant.

The assistance of a Surveyor to assist the Amin shall be ordered for executing the decree. If necessary, an Advocate Commissioner can also be appointed by the execution Court to assist the Amin to execute the decree.”

The aggrieved appellant filed Civil Appeal No.5366 of 2017 (Arising out of SLP (Civil) No.3873 of 2014) before the Supreme Court of India

Supreme court dismissed the Appeal by saying :

Accordingly, we find no reason to interfere in the fact situation of this case. The appeal is, therefore, dismissed with no order as to costs.


SOURCE

IN RE: HON’BLE MR. JUSTICE C.S. KARNAN

SUPREME COURT OF INDIA JUDGMENTS

Ever since the initiation of these proceedings, he has been expressing further disrespect to this Court, he has also been making press statements with abject impunity. However, after the last order, he is stated to have issued orders  against the judges of Supreme Court, the Court direct the Director Health Services, Government of West Bengal, to constitute a Board of Doctors from Pavlov Government Hospital, Kolkata, to examine Shri Justice, and submit a report to this Court whether or not Shri Justice is in a fit condition to defend himself.

SUPREME COURT OF INDIA

FULL BENCH

( Before : Jagdish Singh Khehar, CJI., Dipak Misra, J. Chelameswar, Ranjan Gogoi, Madan B. Lokur, Pinaki Chandra Ghose and Kurian Joseph, JJ. )

IN RE: HON’BLE MR. JUSTICE C.S. KARNAN

Suo Motu Contempt Petition (C) No.1 of 2017

Decided on : 01-05-2017

Contempt of Courts Act, 1971 – Section 12, Section 16

Counsel for Appearing Parties

Mukul Rohtagi, Attorney General for India, Ms. Madhavi Divan, Ms. Ranjeeta Rohatgi, Advocates, for the UOI; K.K. Venugopal, Sr. Adv., Nikhil Nayyar, Ankur Talwar, N. Sai Vinod, Ms. Smriti Shah, Divyanshu Rai, Advocates, for the Petitioners SLP(C)14842 of 2015.; M. Yogesh Kanna, Ms. Nithya, Ms. Maha Lakshmi, Partha Sarthi, Advocates, for the Respondents; Ms. Uttara Babbar, Ms. Akanksha Choudhary, Advocates, for the Applicants In IA 8; Elephant G. Rajendran, In-person, for the Intervenor

ORDER

Suo Motu Contempt Petition (C) No.1/2017 :

While issuing notice to Shri Justice C.S. Karnan on 8.2.2017, this Court had directed, that Justice Karnan would forthwith refrain from handling any judicial or administrative work, as may have been assigned to him, in furtherance of the office held by him. He was also directed to immediately return all judicial and administrative files in his possession to the Registrar General of the High Court.

2. Ever since the initiation of these proceedings, he has been expressing further disrespect to this Court, he has also been making press statements with abject impunity. However, after the last order dated 31.3.2017, he is stated to have issued orders (purported to be judicial) against the members of this Bench, as also, another Hon’ble Judge of this Court. Those orders have been received in the Registry of this Court, and are part of the present compilation. In order to ensure, that no Court, Tribunal, Commission or Authority takes cognizance of the orders passed by Shri Justice C.S. Karnan, we hereby refrain all Courts, Tribunals, Commissions or Authorities, from taking cognizance of any orders passed by Shri Justice C.S. Karnan, after the initiation of the proceeding by us on 8.2.2017.

3. The tenor of the press briefings, as also, the purported judicial orders passed by Shri Justice C.S. Karnan, prima facie suggest, that he may not be in a fit medical condition, to defend himself, in the present proceedings. We therefore consider it appropriate, to require him to be medically examined, before proceeding further. We, accordingly, direct the Director Health Services, Government of West Bengal, to constitute a Board of Doctors from Pavlov Government Hospital, Kolkata, to examine Shri Justice C.S. Karnan, and submit a report to this Court whether or not Shri Justice C.S. Karnan is in a fit condition to defend himself. The above Board shall conduct the examination on 4.5.2017. The Director General of Police, West Bengal, shall constitute a team of police personnel, to assist the Medical Board, in carrying out the directions, recorded hereinabove.

4. The Medical Board shall submit its report to this Court, on or before 8.5.2017.

5. Shri Justice C.S. Karnan may, if he is so advised, furnish his response to the notice issued to him on 8.2.2017, in the meantime. In case he does not choose to file a response on or before 8.5.2017, it shall be presumed, that he has nothing to say in the matter.

6. Post on 9.5.2017, at 10.30 A.M., for further orders.

7. Shri R.S. Suri, Senior Advocate, and Shri Ajit Kumar Sinha, Senior Advocate, President and Vice President respectively, of the Supreme Court Bar Association, have made an oral request, that they may be allowed to intervene and assist this Court in the matter, given the importance of the issue. Prayer is allowed. The Supreme Court Bar Association, is permitted to intervene in the matter, and assist this Court, on the merits of the controversy.

Special Leave Petition (Civil)No.14842/20155 :

1. Post on 9.5.2017, at 10.30 A.M., along with Suo Motu Contempt Petition (Civil) No.1 of 2017.

The magistrate at wife’s parents’ place has jurisdiction to entertain complaint connected with Cruelty and DV Act

SUPREME COURT OF INDIA JUDGMENTS

SUPREME COURT OF INDIA

DIVISION BENCH

( Before : G.T. Nanavati, J; G. N. Ray, J )

SMT. SUJATA MUKHERJEE — Appellant

Vs.

PRASHANT KUMAR MUKHERJEE — Respondent

Criminal Appeal No. 46 with 47 of 1991

Decided on : 30-04-1997

Criminal Procedure Code, 1973 (CrPC) – Section 178
Penal Code, 1860 (IPC) – Section 323, Section 498A
Criminal Procedure Code, 1973 (CrPC) – Section 178(b)(c)

Counsel for Appearing Parties

S. K. Gambhir, Anoop Chaudhary, Sakesh Kumar, Uma Nath Singh, for the Appellant; K.M.K. Nair and S.K. Mehta, for the Respondent

JUDGMENT

G.N. Ray and G.T. Nanavati, JJ.—These two appeals are directed against the order dated 31.8.89 passed by the Madhya Pradesh High Court disposing of Criminal Revision No. 481 of 1989 and Criminal Revision No. 463/89. Criminal Revision No. 481/89 was preferred by all the five respondents against refusal by the learned Chief judicial Magistrate, Raipur to transfer the case from Raipur to Raigarh. Criminal Revision No. 463/89 was preferred by four of the respondents challenging the assumption of jurisdiction of the Chief Judicial Magistrate, Raipur in the complaint made by the appellant for offences u/s 498A and 506B and 323 of the Indian Penal Code. The respondents are the husband, parents-in-law and two sisters-in-law of the appellant Sujata Mukherjee. The gist of the allegation of the appellant, Sujata Mukherjee is that on account of dowry demands, she had been maltreated and humiliated not only in the house of the in-laws at Raigarh but as a consequence of such events, the husband of the appellant had also come to the house of her parents at Raipur and had also assaulted her.

2. The respondents contended before the learned Chief Judicial Magistrate Raipur that the criminal case was not maintainable before the said learned Chief Judicial Magistrate because the cause of action took place only at Raigarh which was outside the territorial jurisdiction of the learned Magistrate at Raipur. A prayer was also made to quash the summons issued by the learned Chief Judicial Magistrate by entertaining the said complaint of Smt. Mukherjee. As the Chief Judicial Magistrate was hot inclined either to quash the summons or to transfer the criminal case to the competent Court at Raigarh, the aforesaid criminal revision petitions were filed; one by all the five respondents and another by four of the respondents excluding the husband presumably because there was specific allegation against the husband that the husband had also gone to Raipur and had assaulted the appellant and as such husband could not plead want of territorial jurisdiction. Both the said criminal revisions case have been disposed of by a common order dated 31.8.89 by the High Court. The High Court having held that excepting against the husband, the complaint against other respondents related to the incidents taking place at Raigarh. Hence, the criminal case on the basis of complaint made by the appellant was not maintainable against the said other respondents at Raipur but such case was maintainable so far as the husband of the appellant, namely Sri S.S. Mukherjee is concerned.

3. At the hearing of these appeals, Mr. Gambhir, the learned Counsel appearing for the appellant has submitted that it will be evident from the complaint that the appellant has alleged that she had been subjected to cruel treatment persistently at Raigarh and also at Raipur and incident taking place at Raipur is not an isolated event, but consequential to the series of incidents taking place at Raigarh. Therefore, the High Court was wrong in appreciating the scope of the complaint and proceeded on the footing that several isolated events had been place at Raigarh and one isolated incident had taken place at Raipur. Hence, the criminal case filed in the Court of the Chief Judicial Magistrate, Raipur was only maintainable against the respondent-husband against whom some overt act at Raipur was alleged. But such case was not maintainable against the other respondents.

4. In this connection, Mr. Gambhir has drawn our attention to Section 178 of the CrPC in particular Clauses (b) and (c) of Section 178. Clause (b) envisages that “where an offence is committed partly in one local area and partly in another” such offence can be tried by a Court having jurisdiction over any such local areas. Clause (c) contemplates that “where an offence is a continuing one, and continues to be committed in more local areas” then such offence can be tried by a Court having jurisdiction over any of such local areas.

5. Mr. Gambhir has submitted that complaint made by the appellant Sujata Mukherjee discloses offence committed partly in one local area and partly in another local area. The complaint also discloses that the offence was continuing one having been committed in more local areas and one of the local areas being Raipur, the learned Magistrate at Raipur had jurisdiction to proceed with the criminal case instituted in such Court.

6. Mr. Anoop Choudhary, learned senior counsel appearing for the State has submitted that Clause (b) of Section 178 is not attracted but if this Court is inclined to accept the submission of Mr. Gambhir that the offence was continuing one and the episode at Raipur was only a sequence of the continuing offence of harassment and ill treatment meted out to the complainant, Clause (c) of the Section 178 may be attracted. Mr. Choudhary has submitted that from the complaint it cannot be reasonably held that all the accused had committed the offence partly in one area and partly in another local area. Therefore, it will not be appropriate to apply Clause (b) of Section 178 of the CrPC. In our view, there is force in such submission of Mr. Choudhary.

7. Despite service being effected on the private respondents, no one has appeared for any of the accused respondents. We have taken into consideration the complaint filed by the appellant and it appears to us that the complaint reveals a continuing offence of mal treatment 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 CrPC 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.


(1997) 35 ACrC 108 : (1997) 2 AICLR 679 : (1997) AIR(SCW) 2401 : (1997) AIR(SC) 2465 : (1997) 2 AllCJ 1134 : (1997) 2 AndhLD(Criminal) 198 : (1997) 2 ApexCourtJournal 8 : (1997) CriLJ 2985 : (1997) CriLR 445 : (1997) 2 ECrC 112 : (1997) 2 JabLJ 59 : (1997) 5 JT 478 : (1997) MLJ(Criminal) 692 : (1997) 3 RCR(Criminal) 198 : (1997) 3 RLW 440 : (1997) 4 SCALE 112 : (1997) 5 SCC 30 : (1997) SCC(Cri) 673 : (1997) 3 SCR 1127 : (1997) 4 Supreme 448

Sunita Kumari Kashyap Vs. State Of Bihar And Another

SUPREME COURT OF INDIA JUDGMENTS

If anything happened as a consequence of offence, same may be inquired into or tried by Court within whose local jurisdiction such thing has been done or such consequence has ensued 

SUPREME COURT OF INDIA

DIVISION BENCH

( Before : P. Sathasivam, J; B. S. Chauhan, J )

SUNITA KUMARI KASHYAP — Appellant

Vs.

STATE OF BIHAR AND ANOTHER — Respondent

Criminal Appeal No. 917 of 2011 (Arising out of S.L.P. (Criminal) No. 8078 of 2010) and Criminal Appeal No. 918 of 2011 (Arising out of S.L.P. (Criminal) No. 8079 of 2010)

Decided on : 11-04-2011

Criminal Procedure Code, 1973 (CrPC) – Section 177, Section 178, Section 179
Dowry Prohibition Act, 1961 – Section 3, Section 4
Penal Code, 1860 (IPC) – Section 34, Section 406, Section 498A
Penal Code, 1860 (IPC) – Sections 498A and 406

Cases Referred

Bhura Ram and Others Vs. State of Rajasthan and Another, AIR 2008 SC 2666 : (2008) CLT 934 : (2008) CriLJ 3494 : (2008) 4 JT 611 : (2008) 150 PLR 531 : (2008) 4 SCALE 666 : (2008) 11 SCC 103 : (2008) AIRSCW 4449
Y. Abraham Ajith and Others Vs. Inspector of Police, Chennai and Another, AIR 2004 SC 4286 : (2004) CriLJ 4180 : (2004) 2 DMC 371 : (2004) 6 JT 497 : (2004) 7 SCALE 374 : (2004) 7 SCALE 26 : (2004) 8 SCC 100 : (2004) 3 SCR 604 Supp : (2004) 2 UJ 1435 : (2004) AIRSCW 4788 : (2004) 6 Supreme 207
Smt. Sujata Mukherjee Vs. Prashant Kumar Mukherjee, AIR 1997 SC 2465 : (1997) CriLJ 2985 : (1997) 5 JT 478 : (1997) 4 SCALE 112 : (1997) 5 SCC 30 : (1997) 3 SCR 1127 : (1997) AIRSCW 2401 : (1997) 4 Supreme 448
State of M.P. Vs. Suresh Kaushal and Another, (2001) 2 DMC 102 : (2001) 4 SCALE 233 : (2003) 11 SCC 126

Counsel for Appearing Parties

Vivek Singh, Udita Singh, Chandra Prakash and Lakshmi Raman Singh, for the Appellant; S.B. Sanyal Subhro Sanyal, Gopal Singh and Ramita Guha, for the Respondent

JUDGMENT

P. Sathasivam, J.—Leave granted.

2. The only issue for consideration in both the appeals is whether criminal proceedings initiated by the Appellant herein at Gaya against her husband and his relatives are maintainable or not for lack of jurisdiction?

3. Brief facts:

(a) The Appellant herein got married to Sanjay Kumar Saini – Respondent No. 2 herein, on 16.04.2000 as per the Hindu rites and ceremonies at Gaya. According to the Appellant, at the time of marriage, her father gifted all the household utensils, Almirah, Double Bed, Dining Table, Fridge, Television and an amount of Rs. 2,50,000/- in cash. In addition to the same, her father spent so much money to solemnize the marriage and for gifts to other family members of her husband. In spite of the same, immediately after the marriage, she was blamed for bringing less dowry by her in-laws and they started harassing and torturing her. Her husband also used to support his family members to torture her. It is her further grievance that her husband demanded an additional amount of Rs. 4 lakhs from her parents for renovation of their house at Ranchi. When she was pregnant, she was forcibly taken out of her matrimonial home at Ranchi and brought to her parental home at Gaya. After giving birth to a girl child the circumstances became even worse and everyone started blaming her that she had brought an additional burden on them. After some time, her husband came out with a new demand that unless her father gives his house at Gaya to him she will not be taken back to her matrimonial home at Ranchi. Having continuous torture and unbearable nature of treatment by her husband and in-laws for years and years, having no other option, the Appellant lodged a First Information Report (in short “FIR”) being No. 66 of 2007 under Sections 498A and 406 read with Section 34 of Indian Penal Code (in short “IPC) and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (in short “D.P. Act”) at Magadh Medical College Police Station, Gaya.

b) The Chief Judicial Magistrate, after perusal of the charge sheet, found a prima facie case against the accused persons, accordingly, took cognizance of offences punishable under Sections 498A and 406 read with Section 34 IPC and Sections 3 and 4 of the D.P. Act against all of them and transferred the case to the Court of sub-Divisional Judicial Magistrate, Gaya for trial. Though an objection was raised stating that the Court at Gaya has no jurisdiction, the learned Magistrate, after considering all the relevant materials including the allegations in the complaint, rejected the said objection.

c) Aggrieved by the said order, the accused persons preferred Criminal Miscellaneous No. 42478 of 2009 before the High Court of Judicature at Patna. By order dated 19.03.2010, the High Court found that the proceedings at Gaya are not maintainable for lack of jurisdiction and quashed the entire proceedings in Magadh Medical College Police Station Case No. 66 of 2007 with liberty to the Appellant herein to file the same in appropriate Court. Following the said order, the High Court on 29.04.2010 allowed Criminal Miscellaneous No. 45153 of 2009 filed by Sanjay Kumar Saini – the husband (Respondent No. 2 herein) and quashed the criminal proceedings lodged against him.

d) Aggrieved by the impugned orders passed by the High Court on 19.03.2010 in Criminal Misc. Case No. 42478 of 2009 and 29.04.2010 in Criminal Misc. Case No. 45153 of 2009, the Appellant-wife has filed the above appeals before this Court by way of special leave petitions.

4. Heard Mr. Vivek Singh, learned Counsel for the Appellant and Mr. S.B. Sanyal, learned senior counsel for Respondent No. 2 and Mr. Gopal Singh, learned Counsel for Respondent No. 1 – State.

5. Inasmuch as the issue is confined to territorial jurisdiction about the criminal proceedings initiated by the Appellant-wife, there is no need to go into other factual aspects. Since the SDJM has found that the Court at Gaya has jurisdiction to try the accused persons for offences punishable under Sections 498A and 406 read with Section 34 IPC and Sections 3 & 4 of the D.P. Act and the High Court reversed the said decision and found that the proceedings at Gaya are not maintainable for lack of jurisdiction, it is desirable to refer the relevant provisions and the contents of FIR.

6. Chapter XIII of the Code of Criminal Procedure, 1973 (in short “Code”) deals with jurisdiction of the criminal courts in inquiries and trials. Sections 177-179 are relevant which are as follows:

177. Ordinary place of inquiry and trial -. Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.

178. Place of inquiry or trial. (a) When it is uncertain in which of several local areas an offence was committed, or

(b) where an offence is committed partly in one local area and partly in another, or

(c) where an offence is a continuing one, and continues to be committed in more local areas than one, or

(d) 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.

179. Offence triable where act is done or consequence ensues. When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.

From the above provisions, it is clear that the normal rule is that the offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. However, 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 than one local area and takes place in different local areas as per Section 178, the Court having jurisdiction over any of such local areas is competent to inquire into and try the offence. Section 179 makes it clear that if anything happened as a consequence of the offence, the same may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.

7. Keeping the above provisions in mind, let us consider the allegations made in the complaint. On 17.10.2007, Sunita Kumari Kashyap – the Appellant herein made a complaint to the Inspector In-charge, Magadh Medical College Police Station, Gaya. In the complaint, the Appellant, after narrating her marriage with Sanjay Kumar Saini, Respondent No. 2 herein on 16.04.2000 stated that what had happened immediately after marriage at the instance of her husband and his family members’ ill-treatment, torture and finally complained that she was taken out of the matrimonial home at Ranchi and sent to her parental Home at Gaya with the threat that unless she gets her father’s house in the name of her husband, she has to stay at her parental house forever. In the said complaint, she also asserted that her husband pressurized her to get her father’s house in his name and when she denied she was beaten by her husband. It was also asserted that after keeping her entire jewellery and articles, on 24.12.2006, her husband brought her at Gaya and left her there warning that till his demands are met, she has to stay at Gaya and if she tries to come back without meeting those demands she will be killed. It was also stated that from that date till the date of complaint, her in-laws never enquired about her. Even then she called them but they never talked to her. Perusal of the entire complaint, which was registered as an FIR, clearly shows that there was ill-treatment and cruelty at the hands of her husband and his family members at the matrimonial home at Ranchi and because of their actions and threat she was forcibly taken to her parental home at Gaya where she initiated the criminal proceedings against them for offences punishable under Sections 498A and 406/34 IPC and Sections 3 and 4 of the D.P. Act. Among the offences, offence u/s 498A IPC is the main offence relating to cruelty by husband and his relatives. It is useful to extract the same which is as under:

498A. 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 term which may extend to three years and shall also be liable to fine.

Explanation: For the purpose of this section, “cruelty” means-

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the 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.

8. Similar allegations as found in the complaint in the case on hand with reference to the offences punishable under Sections 498A, 406/34 IPC were considered by this Court in the following decisions:

i) In Smt. Sujata Mukherjee Vs. Prashant Kumar Mukherjee, similar issue was considered by this Court and found that Clause (c) of Section 178 of the Code is attracted and the Magistrate at wife’s parents’ place has also jurisdiction to entertain the complaint. In the said decision, wife was the Appellant before this Court and the Respondents were the husband, parents-in-law and two sisters-in-law of the Appellant Sujata Mukherjee. The gist of the allegation of the Appellant, Sujata Mukherjee was that on account of dowry demands, she had been maltreated and humiliated not only in the house of her in-laws at Raigarh but as a consequence of such events, the husband of the Appellant had also come to the house of her parents at Raipur and assaulted her. On behalf of the Respondents therein, it was contended before the learned Chief Judicial Magistrate, Raipur that the criminal case was not maintainable before the said learned Chief Judicial Magistrate because the cause of action took place only at Raigarh which was outside the territorial jurisdiction of the learned Magistrate at Raipur. A prayer was also made to quash the summons issued by the learned Chief Judicial Magistrate by entertaining the said complaint of Smt Mukherjee. As the Chief Judicial Magistrate was not inclined either to quash the summons or to transfer the criminal case to the competent court at Raigarh, the criminal revision petitions were filed before the High Court, one by all the five Respondents and another by four of the Respondents excluding the husband presumably because there was specific allegation against the husband that the husband had also gone to Raipur and had assaulted the Appellant and as such the husband could not plead want of territorial jurisdiction. Both the said criminal revision cases were disposed of by a common order dated 31.08.1989 by the High Court holding that the case against the husband of the Appellant alone is maintainable and in respect of other Respondents related to the incidents taking place at Raigarh, hence, the criminal case on the basis of complaint made by the Appellant is not maintainable at Raipur. The said order of the High Court was challenged by the Appellant-Sujata Mukherjee in this Court. It was submitted that it will be evident from the complaint that the Appellant has alleged that she had been subjected to cruel treatment persistently at Raigarh and also at Raipur and incident taking place at Raipur is not an isolated event, but consequential to the series of incidents taking place at Raigarh. Therefore, it was contended that the High Court was wrong in appreciating the scope of the complaint and proceeding on the footing that several isolated events had taken place at Raigarh and one isolated incident had taken place at Raipur. This Court basing reliance on Section 178 of the Code, in particular Clauses (b) and (c), found that in view of allegations in the complaint that the offence was a continuing one having been committed in more local areas and one of the local areas being Raipur, the learned Magistrate at Raipur had jurisdiction to proceed with the criminal case instituted in such court. Ultimately, accepting the stand of the Appellant, this Court held as under:

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.

ii) In State of M.P. Vs. Suresh Kaushal and Another, again in a similar circumstance, considering the provisions of Section 179 with reference to the complaint relating to the offences u/s 498A read with Section 34 IPC, this Court held as under:

6. The above Section contemplates two courts having jurisdiction and the trial is permitted to take place in any one of those two courts. One is the court within whose local jurisdiction the act has been done and the other is the court within whose local jurisdiction the consequence has ensued. When the allegation is that the miscarriage took place at Jabalpur it cannot be contended that the court at Jabalpur could not have acquired jurisdiction as the acts alleged against the accused took place at Indore.

9. Mr. S.B. Sanyal, learned senior counsel appearing for the Respondents fairly stated that there is no dispute about the jurisdiction of the Court at Gaya insofar as against the husband, however, in respect of other relatives of the husband in the absence of any act at Gaya, the said Court has no jurisdiction and if at all, the wife has to pursue her remedy only at Ranchi. In support of his contention, he relied on a decision of this Court in Y. Abraham Ajith and Others Vs. Inspector of Police, Chennai and Another, in particular, paragraph 12 of the said decision which reads as under:

12. The crucial question is whether any part of the cause of action arose within the jurisdiction of the court concerned. In terms of Section 177 of the Code, it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused.

It is true that Section 177 of the Code refers to the local jurisdiction where the offence is committed. Though the expression “cause of action” is not a stranger to criminal cases, in view of Sections 178 and 179 of the Code and in the light of the specific averment in the complaint of the Appellant herein, we are of the view that the said decision is not applicable to the case on hand.

10. Mr. Sanyal also relied on a decision of this Court in Bhura Ram and Others Vs. State of Rajasthan and Another, wherein following the decision in Y. Abraham Ajith and Ors. (supra), this Court held that “cause of action” having arisen within the jurisdiction of the court where the offence was committed, could not be tried by the court where no part of offence was committed. For the same reasons, as mentioned in the earlier paragraph, while there is no dispute as to the proposition in view of the fact that in the case on hand, the offence was a continuing one and the episode at Gaya was only a consequence at the continuing offence of harassment and ill-treatment meted out to the complainant, Clause (c) of Section 178 is attracted. In view of the above reason, both the decisions are not applicable to the facts of this case and we are unable to accept the stand taken by Mr. Sanyal.

11. We have already adverted to the details made by the Appellant in the complaint. In view of the specific assertion by the Appellant-wife about the ill-treatment and cruelty at the hands of the husband and his relatives at Ranchi and of the fact that because of their action, she was taken to her parental home at Gaya by her husband with a threat of dire consequences for not fulfilling their demand of dowry, we hold that in view of Sections 178 and 179 of the Code, the offence in this case was a continuing one having been committed in more local areas and one of the local areas being Gaya, the learned Magistrate at Gaya has jurisdiction to proceed with the criminal case instituted therein. In other words, the offence was a continuing one and the episode at Gaya was only a consequence of continuing offence of harassment of ill-treatment meted out to the complainant, Clause (c) of Section 178 is attracted. Further, from the allegations in the complaint, it appears to us that it is a continuing offence of ill-treatment and humiliation meted out to the Appellant in the hands of all the accused persons and in such continuing offence, on some occasion all had taken part and on other occasion one of the accused, namely, husband had taken part, therefore, undoubtedly Clause (c) of Section 178 of the Code is clearly attracted.

12. In view of the above discussion and conclusion, the impugned order of the High Court holding that the proceedings at Gaya are not maintainable due to lack of jurisdiction cannot be sustained. The impugned order of the High Court dated 19.03.2010 in Criminal Misc. No. 42478 of 2009 and another order dated 29.04.2010 in Criminal Misc. Case No. 45153 of 2009 are set aside. In view of the same, the SDJM, Gaya is permitted to proceed with the criminal proceedings in trial Nos. 1551 of 2008 and 1224 of 2009 and decide the same in accordance with law. It is made clear that we have not expressed anything on the merits and claims of both parties and our above conclusion is confined to the territorial jurisdiction of the Court at Gaya.

Both the criminal appeals are allowed.


(2011) 74 ACC 980 : (2011) 106 AIC 155 : (2011) 2 AICLR 498 : (2011) AIR(SCW) 2481 : (2011) 2 AIRJharR 778 : (2011) 2 AirKarR 854 : (2011) AIR(SC) 1674 : (2011) AIR(SC)Cri 1066 : (2011) 2 AllCrlRulings 1611 : (2011) ALLMR(Cri) 1648 : (2011) 59 BLJR 1194 : (2011) 2 CalCriLR 701 : (2011) 2 CriCC 588 : (2011) CriLJ 2667 : (2011) 2 Crimes 181 : (2011) Sup CutLT(Criminal) 1608 : (2011) 2 ECrC 217 : (2011) 3 JCC 1932 : (2011) 2 JLJR 218 : (2011) 4 JT 236 : (2011) SN3 KCCR 264 : (2011) 3 MLJ(Criminal) 779 : (2011) 2 NCC 127 : (2011) 2 PLJR 191 : (2011) 3 RCR(Criminal) 512 : (2011) 3 RCR(Criminal) 26 : (2011) 3 RecentApexJudgments(RAJ) 250 : (2011) 3 RLW 2185 : (2011) 4 SCALE 572 : (2011) 11 SCC 301 : (2011) 3 SCC(Cri) 173 : (2011) 6 SCR 83 : (2011) 3 Supreme 261 : (2011) 1 UD 412 : (2011) 2 UJ(SC) 1465 : (2011) 2 WLC 187

Jurisdiction of criminal court in inquiry and trials

Chapter-XIII of 1973 deals with the jurisdiction of criminal court in inquiry and trials. Sections 177, 178 and 179 of the Code of Criminal Procedure are relevant which are as follows:–

177. Ordinary place of inquiry and trial.–Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.

178. Place of inquiry or trial.–(a) When it is uncertain in which of several local areas an offence was committed, or

(b) where an offence is committed partly in one local area and partly in another, or

(c) where an offence is a continuing one, and continues to be committed in more local areas than one, or

(d) 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.

179. Offence triable where act is done or consequence ensues.–When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.

From the above provisions, it is clear that normal rule is that the offence has ordinarily to be inquired into and tried by a Court within whose local jurisdiction it was committed. However, if it is uncertain in which of several local areas 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, as per Section 178 Cr.P.C., the court having jurisdiction over any of such local areas is competent to inquire into or try the offence.

Section 179 Cr.P.C. makes it clear that if an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.

In Sunita Kumari Kashyap Vs. State of Bihar and Another [AIR 2011 SC 1674], the Apex Court considered a similar case where complaint was filed by the victim wife at Gaya, alleging ill-treatment and cruelty at the hands of her husband and his relatives had matrimonial home in Ranchi and that she was forcibly taken to her parental home at Gaya by her husband with a threat of dire consequences in case their dowry demand was not fulfilled.

The C.J.M., Gaya took cognizance of the offence punishable inter alia under Sections 498A IPC and 3 & 4 of the Dowry Prohibition Act. The order was challenged before Patna High  Court. A Bench of  Patna High Court found that the proceedings at Gaya were not maintainable for lack of jurisdiction and, thus, quashed the entire proceedings of that case. The complainant being aggrieved by the order passed by this Court filed an appeal before the Supreme Court. The Apex Court held that the offence was a continuing one and the episode at Gaya was only a consequence of continuing offence of harassment and ill-treatment meted out to the complainant and, thus, Clause (c) of Section 178 was attracted and the order of this Court holding that the proceedings at Gaya was not maintainable due to lack of jurisdiction was set aside and the concerned Court at Gaya was permitted to proceed with the criminal proceeding in trial and decide the same in accordance with law.

Giving of finger impressions or of signatures by an accused person is not amount to furnishing evidence and he is not a witness.

State of Bombay v. Kathi Kalu Oghad & Ors., (1962) 3 SCR 10, wherein it was held:

“To be a witness’ may be equivalent to `furnishing evidence’ in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body. `Furnishing evidence’ in the latter sense could not have been within the contemplation of the Constitution-makers for the simple reason that – thought they may have intended to protect an accused person from the hazards of self-incrimination, in the light of the English Law on the subject – they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice.”

We may quote another relevant observation made by this Court in the case of Kathi Kalu Oghad, (supra).

“When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a `personal testimony’. The giving of a `personal testimony’ must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression `to be a witness.”