498A quashed on grounds of territorial jurisdiction : Rajasthan High Court 2017

 

The Court at 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 thereof, the
proceedings before the Additional Chief Judicial
Magistrate, Sri Ganganagar are quashed. The
complaint be returned to the complainant and if
she so wishes she may file the same in the
appropriate court to be dealt with in accordance
with law

 

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Cr. Misc. (Pet.) No.3259 / 2015
Parteek Bansal son of Shri Rajkumar Bansal, aged about 30 years,
resident of 49 New Anaj Mandi, Hisar, Haryana
—-Petitioner
Versus
1. State of Rajasthan through Principal Secretary to
Government of Rajasthan, Department of Home Affairs and
Justice, Civil Secretariat, Jaipur.
2. Shri Vinod Kumar Mittal son of Late Shri Bhanmalji Mittal,
aged about 67 years, resident of Mittal Aluminum, Pilani
Road, Chirawa, District Jhunjhunu, Rajasthan, Presently
residing at 3/4 Fatehpur Circle, Udaipur, Rajasthan
3. Divya Mittal (Deputy Supritendent of Police) daughter of Shri
Vinod Kumar Mittal, aged about 35 years, resident of Mittal
Aluminum, Pilani Road, Chirawa, District Jhunjhunu,
Rajasthan, Presently residing at 3/4 Fatehpur Circle,
Udaipur, Rajasthan
—-Respondent
_____________________________________________________
For Petitioner(s) : Mr O.P.Mehta
Mr Gajendra Singh Rathore
For Respondent No.1 : Mr S.K.Vyas – AAG assisted by
Mr Vikram Singh Rajpurohit – PP
For Respondent Nos 2 & 3 : Mr Vineet Jain
_____________________________________________________
HON’BLE MR. JUSTICE VIJAY BISHNOI
Order
06/03/2017
This criminal misc. petition under section 482 CrPC has
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been filed by the petitioner with a prayer for quashing the FIR
No.156/2015 lodged on 01.11.2015 at Women Police Station,
Udaipur for the offences punishable under sections 498A, 406,
384, 420 and 120-B IPC.
The main ground raised in this petition for quashing the
impugned FIR is that before registration of the impugned FIR, an
FIR was already registered against the petitioner at Women Police
Station, Hisar, Haryana on the same complaint filed by respondent
No.2, who happened to be the father of respondent No.3.
It is averred in the petition that the earlier complaint
filed by respondent No.2 before the Superintendent of Police,
District Hisar is verbatim of the complaint filed before the Women
Police Station, Udaipur resulted in the lodgement of the impugned
FIR. It is also averred that in the FIR No.19/2015 of Women Police
Station, Hisar, Haryana, the police has already concluded the
investigation and filed charge-sheet against the petitioner in the
Court of Judicial Magistrate, First Class, Hisar, Haryana and the
said court after taking cognizance against the petitioner for the
offence punishable under section 498A IPC has framed charge for
the aforesaid offence and some prosecution witnesses have also
been examined. It is further averred in the petition that it is
settled principle of law that there cannot be two FIRs in relation to
the same incident and when the FIR was already registered
against accused-person for the same incident at Police Station,
Hisar, Haryana, the second FIR is not maintainable and is liable to
be quashed.
It is alleged in this petition that the respondent No.3 is
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a Deputy Superintendent of Police in Rajasthan and is posted at
Udaipur and by misusing her position as a Senior Officer in the
Police Department got the impugned FIR registered against the
petitioner only with intention to harass him and his family
members. It is further alleged that respondent No.2 has filed the
complaint against the petitioner alleging crime with his daughter –
respondent No.3 though she is major as well as the Senior Officer
in the Police Department and she could have lodged the FIR but
the respondent No.2 has lodged the impugned FIR to victimize the
petitioner and his family members.
It is also alleged that respondent No.2 while lodging the
complaint before the Inspector General of Police, Udaipur has
concealed the fact that on the same complaint of him, the police
at Hisar has already lodged an FIR against the petitioner and
investigation in that FIR is under progress.
Learned counsel for the petitioner has argued that it is
settled principle of law that for the same incident, two FIRs cannot
be lodged and the subsequent FIR is liable to be quashed. He has
placed reliance on decision of Hon’ble Supreme Court rendered in
T.T. Antony vs. State of Kerala & Ors., 2001 AIR SCW 2571
and Babu Bhai vs. State of Gujarat & Ors., (2010) 12 SCC
254. Learned counsel for the petitioner has argued that the
Hon’ble Supreme Court in the above referred cases has clearly
held that if both the FIRs relate to the same incident or in respect
of the same occurrence, the second FIR is liable to be quashed.
Per contra, learned Public Prosecutor and the counsel
appearing for the respondent Nos.2 and 3 vehemently opposed
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the prayer of the counsel for the petitioner for quashing the
impugned FIR and contended that though the complaints filed by
the respondent No.2, which resulted in registration of two FIRs
No.19/2015 of Women Police Station, Hisar and impugned FIR
No.156/2015 of Women Police Station, Udaipur are same, but all
the incidents of harassment for dowry, breach of trust, extortion,
cheating and criminal conspiracy have taken place at Udaipur and,
therefore, only the impugned FIR is maintainable and the FIR
registered at the Women Police Station, Hisar is of no
consequence as neither the Women Police Station, Hisar nor the
Judicial Magistrate at Hisar has jurisdiction to inquire or conduct
the trial of the said FIR as per section 177 of the Code of Criminal
Procedure.
Learned counsel for the respondent Nos. 2 and 3 has
submitted that it is incorrect to say that the complaint in respect
of the impugned FIR has been lodged after registration of the FIR
No.19/2015 of Women Police Station, Hisar. It is argued that
respondent No.2 filed a complaint before the Superintendent of
Police, Hisar on 10.10.2015, however, when the Police at Hisar did
not act upon the said complaint and later on when he realized that
the Police at Hisar has no jurisdiction to inquire into the
allegations levelled in the complaint as all the incidents had
happened at Udaipur, he filed a complaint before the Inspector
General of Police, Udaipur on 15.10.2015 i.e. prior to the
registration of FIR No.19/2015 at Hisar. It is further argued that in
the complaint submitted to the Inspector General of Police, the
respondent No.2 has clearly mentioned that he has already filed a
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complaint at Hisar, however, the police at Hisar has not taken any
action on the said complaint and since all the incidents complained
of in the complaint took place at Udaipur, this complaint has been
filed at Udaipur.
Learned counsel for the respondent Nos. 2 and 3 has
further argued that from the above facts, it is clear that when the
police at Hisar has no jurisdiction to inquire into the allegations
levelled in the complaint submitted before the Superintendent of
Police, Hisar, no illegality can be found in the action of the
respondent No.2 to lodge the complaint at Udaipur, where all the
incidents had taken place. Learned counsel for the respondent
Nos.2 and 3 has further argued that the filing of the charge-sheet
against the petitioner by the Hisar Police and a trial being
commenced against him at Hisar are of no consequence as
neither the Women Police Station, Hisar nor the Judicial Magistrate
at Hisar has jurisdiction to inquire or conduct the trial of FIR
No.19/2015, therefore, the impugned FIR cannot be quashed.
Learned counsel for the respondent Nos.2 and 3 has
also placed reliance on the reply filed by the petitioner before the
Family Court, Udaipur in an application filed by respondent No.2
under section 9 of the Hindu Marriage Act for restitution of
conjugal rights, in support of their claim that no incident of
demand of dowry, harassment etc. have happened at Hisar
because in the reply, the petitioner has specifically claimed that
the respondent No.3 never resided together at Hisar, Haryana.
In rejoinder, learned counsel for the petitioner has
argued that even if it is assumed that the court at Hisar, where the
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trial against the petitioner is pending, has no jurisdiction, then
also by virtue of section 462 CrPC, the proceedings in that court
cannot be said to be of no consequence. It is contended that the
court at Hisar in not lacking inherent jurisdiction to try an offence
and lack of territorial jurisdiction cannot be said to be fatal. In
support of the said contention, learned counsel for the petitioner
has placed reliance on decision of Hon’ble Supreme Court
rendered in Nasiruddin Khan vs. State of Bihar, AIR 1973 SC
186, decision of Kerala High Court rendered in K.Ramanujan
Nair vs. S.Sarojini Amma & Anr., 1971 CRI.L.J., 565 and the
decision of Calcutta High Court rendered in Bimal Chandra
Banerjee vs. Tez Chandra Banerjee, AIR 1918 Calcutta 305.
Heard learned counsel for the rival parties and perused
the material available on record.
The facts, not in dispute, are that the respondent No.2
filed a complaint to the Superintendent of Police, District Hisar,
Haryana on 10.10.2015 alleging therein that his daughter got in
touch of the petitioner through internet and they decided to marry
to each other. After making inquiry, he gave his consent for
marriage of the petitioner with his daughter. In September, 2014,
petitioner went to Udaipur to meet his daughter and informed his
family with regard to his assent to marry her. After returning from
Udaipur, petitioner and his family members including mother,
brother, sister and brother-in-law were in contact with his
daughter. Later on petitioner called his daughter to Gurgaon on
the pretext to meet his mother, however, the mother of the
petitioner did not come to Gurgaon and there his daughter and the
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petitioner got married in a temple secretly. Thereafter petitioner
met his daughter in Ajmer, where his brother-in-law called him
and asked him to marry his daughter only when she agrees to
give dowry. It is further alleged that the petitioner told that he
would shift to Delhi and thereafter his daughter and the petitioner
went to Bharatpur and Mathura, where the mother of the
petitioner was supposed to come but again she did not come
there. It is further alleged that the relatives of the petitioner were
in contact with his daughter through phone and asked her to give
dowry including Innova Car, Rs.50 lacs cash and to organize a
grand function at Hisar. It is further alleged that when the
complainant called the mother and brother of the petitioner, they
abused him and demanded dowry for wedding to which he agreed
under pressure. In between petitioner was regularly meeting his
daughter in Udaipur and finally arrived at Udaipur on 08.01.2015
for joining a new job, which was also secured by his daughter.
Thereafter, he stayed at Udaipur in a rented house and regularly
demanded from his daughter Rs.50 lacs and a car and pressurized
that a grand function be organized at Hisar.
It is further alleged that the petitioner used to make excuses
for registration of marriage and ultimately on 16.02.2015, he left
Udaipur for Barmer without informing his daughter and never
returned to Udaipur. Then he and his daughter went to Hisar,
where they did not find anybody and they filed a complaint at
Police Station, Hisar. On 18.02.2015, the petitioner and his family
members gave an affidavit and agreed that soon the engagement
of the petitioner and his daughter will be performed. Thereafter in
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March, 2015 petitioner again started living at Udaipur in a rented
house, which was managed by him only. Later on the wedding
date of his daughter and the petitioner was fixed as 21.03.2015,
however, on that day none came from the petitioner’s side and the
marriage of the petitioner and his daughter was performed at
Government accommodation, Fatehpura, Udaipur. Thereafter the
mother of the petitioner Krishna Devi said that as Rs.50 lacs and a
car have not been given and a grand function has not been
organized, therefore, she would not treat his daughter as her
daughter-in-law. In the same night, the petitioner also asked his
daughter that his mother would be happy if her demands are
fulfilled. It is further alleged that the mother of the petitioner also
got put off the gold ornaments of his daughter and asked her that
if they would not meet their demands, she would not allow her
son to live with his daughter. It is further alleged that constantly
the accused-persons harassed his daughter and refused to pay
rent of the house. It is further contended in the complaint that
marriage of the petitioner and his daughter was registered on
29.05.2015 and in August, 2015, petitioner left Udaipur for
Kaithal, Haryana and stopped receiving the calls from his
daughter. His daughter went to Kaithal on 22.02.2015, where the
petitioner informed that he would divorce her and would not
return to Udaipur. The petitioner also threatened his daughter
that he would make it impossible for her to serve in the Police
Department. The several other allegations were also levelled in
the complaint.
On receiving the complaint from respondent No.2 on
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10.10.2015, the Women Police Station, Hisar registered the FIR
No.19/2015 on 17.10.2015. Prior to that on 15.10.2015, the
respondent No.2 filed written complaint before the Inspector
General of Police, Udaipur which is verbatim to the earlier
complaint filed by him before the Superintendent of Police, Hisar.
However, on the complaint filed by respondent No.2 before the
Inspector General of Police, the impugned FIR has been registered
on 01.11.2015. It is also not in dispute that Police Station, Hisar
has continued with the investigation in the FIR No.19/2015 and
filed a charge-sheet against the petitioner for the offence
punishable under section 498A on 16.12.2015. It is also not in
dispute that after framing of charge against the petitioner, trial
against him is pending in the Court of Judicial Magistrate, Hisar.
Now the question before this Court is whether the
police at Udaipur has committed any illegality in registering the
impugned FIR on the complaint filed by the respondent No.2.
Section 154 of the Code of Criminal Procedure reads as
under:
“154. Information in cognizable cases.__(1)
Every information relating to the commission of a
cognizable offence, if given orally to an officer in
charge of a police station, shall be reduced to
writing by him or under his direction, and be read
Over to the informant; and every such
information, whether given in writing or reduced
to writing as aforesaid, shall be signed by the
person giving it, and the substance thereof shall
be entered in a book to be kept by such officer in
such form as the State Government may
prescribe in this behalf:
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Provided that if the information is given by the
woman against whom an offence under Section
326-A, Section 326-B, Section 354, Section 354-
A, Section 354-B, Section 354-C, Section 354-D,
Section 376, Section 376-A, Section 376-B,
Section 376-C, Section 376-D, Section 376-E or
Section 509 of the Indian Penal Code (45 of
1860) is alleged to have been committed or
attempted, then such information shall be
recorded, by a woman police officer or any
woman officer:
Provided further that –
(a) in the event that the person against whom
an offence under Section 354, Section 354-A,
Section 354-B, Section 354-C, Section 354-D,
Section 376, Section 376-A, Section 376-B,
Section 376-C, Section 376-D, Section 376-E or
Section 509 of Indian Penal Code (45 of 1860) is
alleged to have been committed or attempted, is
temporarily or permanently mentally or physically
disabled, then such information shall be recorded
by a police officer, at the residence of the person
seeking to report such offence or at a convenient
place of such person’s choice, in the presence of
an interpreter or a special educator, as the case
may be;
(b) the recording of such information shall be
videographed;
(c) the police officer shall get the statement of
the person recorded by a Judicial Magistrate
under clause (a) of sub-section (5-A) of section
164 as soon as possible.
(2) A copy of the information as recorded under
sub- section (1) shall be given forthwith, free of
cost, to the informant.
(3) Any person aggrieved by a refusal on the part
of an officer in charge of a police station to record
the information referred to in sub section (1) may
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send the substance of such information, in writing
and by post, to the Superintendent of Police
concerned who, if satisfied that such information
discloses the commission of a cognizable offence,
shall either investigate the case himself or direct
an investigation to be made by any police officer
subordinate to him, in the manner provided by
this Code, and such officer shall have all the
powers of an officer in charge of the police station
in relation to that offence.”
From perusal of the provisions of section 154 CrPC, it is
clear that there is no scope for police officer to refuse registration
of any information as an FIR which discloses cognizable offence.
A Constitution Bench of Hon’ble Supreme Court
rendered in Lalita Kumari vs. Government of U.P. & Ors., AIR
2014 SC 187 while considering the issue whether a police officer
is bound to register a First Information Report (FIR) upon
receiving any information relating to commission of cognizable
offence under section 154 of the Code of Criminal Procedure, 1973
or the police officer has power to conduct a preliminary inquiry in
order to test the veracity of such information before registering
the same has answered as under:
“111) In view of the aforesaid discussion, we
hold:
i) Registration of FIR is mandatory under Section
154 of the Code, if the information discloses
commission of a cognizable offence and no
preliminary inquiry is permissible in such a
situation.
ii) If the information received does not disclose a
cognizable offence but indicates the necessity for
an inquiry, a preliminary inquiry may be
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conducted only to ascertain whether cognizable
offence is disclosed or not.
iii) If the inquiry discloses the commission of a
cognizable offence, the FIR must be registered. In
cases where preliminary inquiry ends in closing
the complaint, a copy of the entry of such closure
must be supplied to the first informant forthwith
and not later than one week. It must disclose
reasons in brief for closing the complaint and not
proceeding further.
iv) The police officer cannot avoid his duty of
registering offence if cognizable offence is
disclosed. Action must be taken against erring
officers who do not register the FIR if information
received by him discloses a cognizable offence.
v) The scope of preliminary inquiry is not to verify
the veracity or otherwise of the information
received but only to ascertain whether the
information reveals any cognizable offence.
vi) As to what type and in which cases
preliminary inquiry is to be conducted will depend
on the facts and circumstances of each case. The
category of cases in which preliminary inquiry
may be made are as under:
a) Matrimonial disputes/ family disputes
b) Commercial offences
c) Medical negligence cases
d) Corruption cases
e) Cases where there is abnormal delay/laches in
initiating criminal prosecution, for example, over
3 months delay in reporting the matter without
satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not
exhaustive of all conditions which may warrant
preliminary inquiry.
vii) While ensuring and protecting the rights of
the accused and the complainant, a preliminary
inquiry should be made time bound and in any
case it should not exceed 7 days. The fact of such
delay and the causes of it must be reflected in the
General Diary entry.
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viii) Since the General Diary/Station Diary/Daily
Diary is the record of all information received in a
police station, we direct that all information
relating to cognizable offences, whether resulting
in registration of FIR or leading to an inquiry,
must be mandatorily and meticulously reflected in
the said Diary and the decision to conduct a
preliminary inquiry must also be reflected, as
mentioned above.”
So upon receiving an information of commission of
cognizable offence, no option is left with the police officer except
to register an FIR. However, in certain eventualities, a police
officer can make preliminary inquiry, examples of which are
provided in the above referred judgment.
In the present case, admittedly before registration of
the FIR at Police Station, Hisar, complaint was filed by the
respondent No.2 before the Inspector General of Police, Udaipur
and bare perusal of the complaint discloses commission of a
cognizable offence. As per the law laid down by Hon’ble Supreme
Court in Lalita Kumari vs. Government of U.P. & Ors. (supra),
after receiving complaint regarding the commission of cognizable
offences by the respondent No.2, the police officer is bound to
register the impugned FIR. In this petition or during the course of
arguments, it is neither averred nor argued that the police at
Udaipur, at the time of registration of impugned FIR, was aware of
the fact that on the same complaint of respondent No.2, the police
station at Hisar has already registered an FIR and investigation
into the same is under progress. In such circumstances, no fault
can be found in the action of the police in registration of the
impugned FIR.
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It is also to be noted that from the wholesome reading
of the impugned FIR, it appears that none of the incidents of
cruelty, criminal intimidation, demand of dowry and breach of
trust, complained of in the complaint filed by the respondent No.2
with his daughter had happened at Hisar. The petitioner in his
reply to the application under section 9 of the Hindu Marriage for
restitution of conjugal rights filed by respondent No.2, has
categorically stated that she never resided at Hisar at any point of
time.
As per section 177 of the Code of Criminal Procedure,
every offence ordinarily be inquired into and tried by a Court
within whose local jurisdiction it was committed.
Hon’ble Supreme Court in Y.Abraham Ajith & Ors.
vs. Inspector of Police, Chennai & Anr., AIR 2004 SC 4286
has held as under:
“7. Section 177 of the Code deals with the
ordinary place of inquiry and trial, and reads as
follows;
Section 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.”
8. Sections 177 to 186 deal with venue and
place of trial. Section 177 reiterates the wellestablished
common law rule referred to in
Halsbury’s Laws of England (Vol. IX para 83) that
the proper and ordinary venue for the trial of a
crime is the area of jurisdiction in which, on the
evidence, the facts occur and which alleged to
constitute the crime. There are several
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exceptions to this general rule and some of them
are, so far as the present case is concerned,
indicated in Section 178 of the Code which read
as follows:
Section 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 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.”
9. “All crime is local, the jurisdiction over the
crime belongs to the country where the crime is
committed”, as observed by Blackstone, a
significant word used in Section 177 of the Code
is ”ordinarily”. Use of the word indicates that the
provision is a general one and must be read
subject to the special provisions contained in the
Code. As observed by the Court in
Purushottamdas Dalmia v. State of West Bengal
(AIR 1961 SC 1589), L.N. Mukherjee v. State of
Madras (AIR 1961 SC 1601), Banwarilal
Jhunjhunwalla and Ors. v. Union of India and
Anr., (AIR 1963 SC 1620): and Mohan Baitha and
Ors. v. State of Bihar and Anr.(2001 (4) SCC
350), exception implied by the word “ordinarily”
need not be limited to those specially provided
for by the law and exceptions may be provided
by the law on consideration or may be implied
from the provisions of law permitting joint trial of
offences by the same Court. No such exception is
applicable to the case at hand.
10. As observed by this Court in State of Bihar v.
Deokaran Nenshi and Anr., (AIR 1973 SC 908)
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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 Sections 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.
12. The crucial question is whether any part of
the cause of action arose within the jurisdiction
of the concerned Court. 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.
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13. While in civil cases, normally the expression
“cause of action” is used, in criminal cases as
stated in Section 177 of the Code, reference is to
the local jurisdiction where the offence is
committed. These variations in etymological
expression do not really make the position
different. The expression “cause of action” is
therefore not a stranger to criminal cases.
14. It is settled law that cause of action consists
of bundle of facts, which give cause to enforce
the legal inquiry for redress in a court of law. In
other words, it is a bundle of facts, which taken
with the law applicable to them, gives the
allegedly affected party a right to claim relief
against the opponent. It must include some act
done by the latter since in the absence of such
an act no cause of action would possibly accrue
or would arise.
15. The expression “cause of action” has
acquired a judicially settled meaning. In the
restricted sense cause of action means the
circumstances forming the infraction of the right
or the immediate occasion for the action. In the
wider sense, it means the necessary conditions
for the maintenance of the proceeding including
not only the alleged infraction, but also the
infraction coupled with the right itself.
Compendiously the expression means every fact,
which it would be necessary for the complainant
to prove, if traversed, in order to support his
right or grievance to the judgment of the Court.
Every fact, which is necessary to be proved, as
distinguished from every piece of evidence,
which is necessary to prove such fact, comprises
in “cause of action”.
16. The expression “cause of action” has
sometimes been employed to convey the
restricted idea of facts or circumstances which
constitute either the infringement or the basis of
a right and no more. In a wider and more
comprehensive sense, it has been used to denote
the whole bundle of material facts.
17. The expression “cause of action” is generally
understood to mean a situation or state of facts
that entitles a party to maintain an action in a
court or a tribunal; a group of operative facts
giving rise to one or more bases for sitting; a
factual situation that entitles one person to
obtain a remedy in court from another person.
(Black’s Law Dictionary a “cause of action” is
stated to be the entire set of facts that gives rise
to an enforceable claim; the phrase comprises
every fact, which, if traversed, the plaintiff must
prove in order to obtain judgment. In “Words
and Phrases” (4th Edn.) the meaning attributed
to the phrase “cause of action” in common legal
parlance is existence of those facts, which give a
party a right to judicial interference on his
behalf.
18. In Halsbury Laws of England (Fourth Edition)
it has been stated as follows:
“Cause of action” has been defined as meaning,
simply a factual situation the existence of which
entitles one person to obtain from the Court a
remedy against another person. The phrase has
been held from earliest time to include every fact
which is material to be proved to entitle the
plaintiff to succeed, and every fact which a
defendant would have a right to traverse. “Cause
of action” has also been taken to mean that
particular act on the part of the defendant which
gives the plaintiff his cause of complaint, or the
subject matter of grievance founding the action,
not merely the technical cause of action”.
19. When the aforesaid legal principles are
applied, to the factual scenario disclosed by the
complainant in the complaint petition, the
inevitable conclusion is that no part of cause of
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action arose in Chennai and, therefore, the
concerned magistrate had no jurisdiction to deal
with the matter. The proceedings are quashed.
The complaint be returned to respondent No. 2
who, if she so chooses, may file the same in the
appropriate Court to be dealt with in accordance
with law. The appeal is accordingly allowed.
Appeal Allowed.”
[Emphasis supplied]
Relying on the decision of Y.Abraham Ajith & Ors.
vs. Inspector of Police, Chennai & Anr. (supra), the Hon’ble
Supreme Court in Bhura Ram & Ors. vs. State of Rajasthan &
Anr., AIR 2008 SC 2666, has held as under:
“2. The complainant Rajeshwari lodged a
complaint on 4.9.2001 before the learned
Additional Chief Judicial Magistrate, Sri
Ganganagar against the appellants. The
complaint under Section 156(3) of the Code of
Criminal Procedure was sent to the Police
Station, Sadar Sri Ganganagar for investigation
on which FIR No. 246 of 2001 was registered
against the appellants for offences under
Sections 498A, 406 and 147 of the Indian Penal
Code (IPC). Challan was filed against the
appellants in the Court of learned Additional
Chief Judicial Magistrate, Sri Ganga Nagar. The
charges were framed against the appellants for
offences under Sections 498A and 406 IPC. The
appellants made a prayer before the Court that
the Court of Additional Chief Judicial Magistrate
had no jurisdiction to try the offences as the
cause of action accrued within the jurisdiction of
the other court. The application was rejected.
The Revision Petition before the learned
Sessions Judge, Sri Ganganagar was also
rejected. The High Court dismissed the S.B.
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Criminal Miscellaneous Petition preferred by the
appellants holding that although the marriage
was solemnized at Village Ramsara, Tehsil
Abohar, District Ferozpur, and right from the
marriage, the complainant and her husband
Ravindra Kumar were living in Punjab with her
in-laws and her husband had died, and that she
is now residing in Sri Ganganagar District in
Rajasthan along with her maternal relations, but
still offence under Section 498A IPC, being a
continuing one, the complaint cannot be
dismissed on the ground that it was time
barred; and that the offence of cruelty being a
continuing offence is still continuing with the
local area of Rajasthan, where at present the
complainant is living and, therefore, the
Additional Chief Judicial Magistrate, Sri
Ganganagar had jurisdiction to try the case. The
Court has found that all the allegations
regarding the offences charged with have been
committed at the previous residence of the
complainant.
3. It is contended by the learned counsel for the
appellants that the question involved is squarely
covered by the decision of this Court in Y.
Abraham Ajith and Others vs. Inspector of
Police, Chennai and Another, (2004) 8 SCC 100,
wherein this Court has 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.
4. The facts stated in the complaint disclose that
the complainant left the place where she was
residing with her husband and in-laws and came
to the city of Sri Ganganagar, State of Rajasthan
and that all the alleged acts as per the
complaint had taken place in the State of
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Punjab. The Court at 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 thereof, the
proceedings before the Additional Chief Judicial
Magistrate, Sri Ganganagar are quashed. The
complaint be returned to the complainant and if
she so wishes she may file the same in the
appropriate court to be dealt with in accordance
with law.”
[Emphasis supplied]
Recently, the Hon’ble Supreme Court in Manoj Kumar
Sharma and Ors. vs. State of Chhatisgarh & Ors. reported in
AIR 2016 SC 3930 has held as under:
“13. Learned senior Counsel for the Appellants
vehemently contended that the P.S. Bhilai
Nagar, Durg had no territorial jurisdiction to
investigate the matter alleging commission of
offence Under Sections 304B and 498A of the
Indian Penal Code because none of the part of
the alleged offence was committed within the
territorial jurisdiction of P.S. Bhilai Nagar, Durg.
It is true that territorial jurisdiction also is
prescribed under Sub-section (1) of Section
156 to the extent that the officer can
investigate any cognizable case which a court
having jurisdiction over the local area within
the limits of such police station would have
power to enquire into or try under the
provisions of Chapter XIII. However, Subsection
(2) makes the position clear by
providing that no proceeding of a police officer
in any such case shall at any stage be called in
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question on the ground that the case was one
which such officer was not empowered to
investigate. After investigation is completed,
the result of such investigation is required to be
submitted as provided Under Sections 168, 169
and 170. Section 170 specifically provides that
if, upon an investigation, it appears to the
officer in charge of the police station that there
is sufficient evidence or reasonable ground of
suspicion to justify the forwarding of the
accused to a Magistrate, such officer shall
forward the accused under custody to a
Magistrate empowered to take cognizance of
the offence upon a police report and to try the
accused or commit for trial. Further, if the
investigating officer arrives at the conclusion
that the crime was not committed within the
territorial jurisdiction of the police station, then
FIR can be forwarded to the police station
having jurisdiction over the area in which the
crime is committed. But this would not mean
that in a case which requires investigation, the
police officer can refuse to record the FIR
and/or investigate it. Chapter XIII of the Code
provides for “jurisdiction of the criminal courts
in inquiries and trials”. It is to be stated that
under the said Chapter there are various
provisions which empower the court for inquiry
or trial of a criminal case and that there is no
absolute prohibition that the offence committed
beyond the local territorial jurisdiction cannot
be investigated, inquired or tried. This would be
clear by referring to Sections 177 to 188. For
our purpose, it would suffice to refer only to
Sections 177 and 178 which are as under:
177. Ordinary place of enquiry and
trial.-Every offence shall ordinarily be inquired
into and tried by a Court within whose local
jurisdiction it was committed.
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178. Place of enquiry 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 enquired into or
tried by a Court having jurisdiction over any of
such local areas.
A reading of the aforesaid Sections would
make it clear that Section 177 provides for
“ordinary” place of enquiry or trial. Section
178, inter alia, provides for place of enquiry or
trial when it is uncertain in which of several
local areas an offence was committed or where
the offence was committed partly in one local
area and partly in another and where it
consisted of several acts done in different local
areas, it could be enquired into or tried by a
court having jurisdiction over any of such local
areas. Hence, at the stage of investigation, it
cannot be held that the SHO does not have
territorial jurisdiction to investigate the crime.
But after the investigation is over, if the officer
arrives at the conclusion that the cause of
action for lodging the FIR has not arisen within
his territorial jurisdiction, then he will forward
the case to the Magistrate concerned
empowered to take cognizance of the offence.
14. In the instant case, the question of
territorial jurisdiction was just one of the
grounds for quashing the proceedings along
with the other grounds and, therefore, the High
Court should have examined whether the case
was fit to be quashed on other grounds or not.
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Nandini Sharma committed suicide in her
matrimonial home at Ambala. The information
with regard to the said incident was forwarded
to the Police Station Mulana, District Ambala. On
22.09.1999, post mortem on the body was
conducted and the case was closed by
submitting a final report before the SDM stating
that there was no sign of foul play in the
occurrence. Since the Appellant No. 1 was a
Flying Officer at the relevant time, a Court of
Inquiry (CoI) was also convened to investigate
into the alleged role of the Appellant No. 1
herein which was finally closed on 25.07.2000.
None of the family members of the deceased
raised any doubt on the death of Nandini or
named anyone in the Appellant’s family
especially when the father, brother and other
relatives of the deceased were present at
Ambala during the period when the investigation
was carried on. On a correct appreciation of
record, we do not find even a whisper about the
cruelty meted out to her soon before her death.
In fact, it is on record that the Appellant No. 1
visited Durg several times after the death of
Nandini and stayed with in-laws.
15. The territorial jurisdiction of a court with
regard to a criminal offence would be decided
on the basis of the place of occurrence of the
incident. In the instant case, the suicide was
committed at Ambala. The Ambala police closed
the case after fulfilling the requirements of
Section 174 of the Code holding that there was
no foul play in the incident and also there was
no requirement of lodging FIR Under Section
154 as none of the family members of the
deceased raised any suspicion over the death
even though the death was committed within
seven years of marriage. Also, there is no
evidence of it being a continuing offence. Hence,
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the offence alleged cannot be said to have been
committed wholly or partly within the local
jurisdiction of the Magistrate’s Court at Durg.
Prima facie, none of the ingredients constituting
the offence can be said to have occurred within
the local jurisdiction of that Court.
16. In the case on hand, as per the materials on
record, in Crime No. 194 of 2005, charge sheet
has been filed and the Judicial Magistrate First
Class, Durg has taken cognizance of the
proceedings. In the present fact situation, we
are of the considered opinion that the Court at
Durg has no territorial jurisdiction to try the
case and the proceedings are liable to be
quashed on the ground of lack of territorial
jurisdiction since the entire cause of action for
the alleged offence had purportedly arisen in the
city of Ambala.”
[Emphasis supplied]
As per the law laid down by the Hon’ble Supreme
Court in the above referred cases, ordinarily, an offence is
required to be inquired or tried by a court within whose local
jurisdiction it was committed. As observed earlier that in the
complaints filed by the respondent No.2 before the Police Officers
at Hisar and Udaipur, it is alleged that all the offences have been
committed by the accused persons at Udaipur only and when
none of the incidents complained of in the complaint filed by the
respondent No.2 before the Inspector General of Police had
happened at Hisar and all such incidents had happened at
Udaipur, the action of the police in registering the impugned FIR
cannot be said to be illegal.
At the same time, it is necessary for the investigating
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officer, who is investigating into the impugned FIR to take into
consideration the fact that on the same complaint, FIR has also
been registered at Hisar and charge-sheet has been filed against
the petitioner in that FIR and trial is going on against him in the
Court of Judicial Magistrate, Hisar and thereafter to submit
conclusion before the court concern with his/her opinion that
what will be the effect of the same.
There is no quarrel about the proposition of law laid
down by the Hon’ble Supreme Court in T.T. Antony vs. State of
Kerala & Ors. and Babu Bhai vs. State of Gujarat & Ors.
(supra), however, there is substantial difference in the facts of
those cases and in the facts of the present case. In those cases,
the second FIRs were lodged against some persons in same police
station in which the earlier FIR was registered for the same
incident. In that event, the Hon’ble Supreme Court has held that
second FIR for the same incident is not maintainable.
In the present case, the complaint resulting in
registration of impugned FIR at Udaipur was filed prior to the
registration of FIR No.19/2015 of Police Station, Hisar. In such
circumstances, the above referred judgments are of no help to the
petitioner.
So far as judgment of Hon’ble Supreme Court
rendered in Nasiruddin Khan vs. State of Bihar, judgment of
Kerala High Court in K.Ramanujan Nair vs. S.Sarojini Amma
& Anr. and the judgment of Calcutta High Court in Bimal
Chandra Banerjee vs. Tez Chandra Banerjee (supra) are
concerned, aggrieved persons had approached the Courts while
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raising the question of territorial jurisdiction when the trial courts
passed the judgments convicting and sentencing them. However,
in the present case, the situation is different. The trial against
the petitioner is pending and no final decision has yet been taken
by the trial court.
With the above observations, the instant criminal
misc. petition is dismissed.
(VIJAY BISHNOI),J.
m.asif/P