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Crl.Pet. 396/2011

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Crl.Pet. 396/2011 1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH) Crl. Pet. No. 396 of 2011 Accused/Petitioners : 1. Smt. Namita Devi, Wife of Sri Parag Sarma. 2. Sri Sailen Sharma & Jitu, Son of Late Baneswar Sarma, Both are presently residing at Khutikatia, A.T. Road, (Near the Radio Centre), Bishujyoti Nagar, Pipe Colony, P.O- Sensua, P.S- Nagaon, District- Nagaon, Assam. By Advocates : Mr. P.J. Saikia, Adv. Ms. M. Kechii, Adv. Opposite Party : Sri Durgeswar Sarma Baruah, Son of Late Puspa Kanta Sarma, resident of Tolokabari, Jamugurihat, P.S- Jamuguri, District-Sonitpur, Assam. Pin-784001. By Advocate : Ms. D. Borgohain, Adv. B E F O R E THE HON’BLE MR. JUSTICE UJJAL BHUYAN. Date of hearing : 28th February, 2012. Date of Judgment : 29-05-2012 J U D G M E N T AND O R D E R This is an application u/s 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.). Crl. Pet. No. 396 of 2011 Page 1 of 7 2 [2] The petitioner No.1 is the daughter-in-law of the opposite party. Petitioner No.2 is her brother. By way of this application, they seek quashing of the proceedings in C.R. Case No.1015/2009 pending in the Court of the learned Judicial Magistrate, 1st Class, Tezpur. [3] Shorn of details, the case of the petitioners is that the petitioner No.1 married Shri Parag Sarma, son of opposite party in the year 2004. Out of wedlock, a son was born to the couple in the year 2006. Admittedly, there is marital discord between the husband and the wife, the details of which may not be necessary for adjudication of the present case. Suffice it to say, the petitioner No.1 finally left her matrimonial home at Jamuguri, district- Sonitpur on 16-12-2008. On reaching her parental house at Nagaon, she instituted C.R. Case No.3138/2009 u/s 498(A)/406 of the Indian Penal Code (IPC) before the Criminal Court at Nagaon against her husband and in-laws, which is stated to be pending. Subsequently, she also filed M.R. Case No.179/2010 u/s 125 Cr.P.C. before the Criminal Court at Nagaon, which is also stated to be pending. Suppressing the fact of pendency of C.R Case No. 3138 of 2009, the opposite party filed a complaint petition on 11 - 12-2009 before the learned Chief Judicial Magistrate, Sonitpur at Tezpur against the petitioners. The gist of the complaint is that the opposite party along with one Shri Bogai Das had gone to Nagaon on 03-12-2009 to bring Crl. Pet. No. 396 of 2011 Page 2 of 7 3 back his daughter-in-law (petitioner No.1). When they reached the house of the petitioners at Nagaon, the petitioners abused them, particularly the opposite party and also assaulted him. They also confined him whereafter the petitioner No.2 along with seven other persons forcibly took them to the Nagaon Court where their signatures were taken on two stamp papers and on one cartridge paper. They also took away Rs.3000/- from the opposite party. When they returned to their house at Jamuguri, the opposite party received threatening phone calls from the petitioner No.1. [4] The above complaint was registered as C.R. Case No.1015/2009 in the Court of the learned Judicial Magistrate, 1st Class, Sonitpur at Tezpur. A petition was filed before the learned Magistrate on behalf of the petitioners to dismiss the case on the ground of lack of territorial jurisdiction. The learned Magistrate, however, by order dated 15-07-2010 rejected the said petition. Thereafter, evidence of the opposite party as PW 1 and of Shri Bogai Das as PW 2 were taken. By order dated 15-06- 2011, the learned Magistrate framed formal charge against the petitioners u/s 384/342/380/295(A) IPC. [5] Feeling aggrieved, the petitioners are before this Court. Crl. Pet. No. 396 of 2011 Page 3 of 7 4 [6] This Court by order dated 26-08-2011 issued notice and in the interim, stayed further proceeding of C.R. Case No.1015 of 2009. [7] Mr. P. J. Saikia, learned Counsel for the petitioners submits that the allegations made in the complaint petition are absolutely without any substance. He submits that the complaint petition has been filed to put pressure on the petitioner No.1 as she is having matrimonial dispute with the son of the opposite party. He further submits that even if the contents of the complaint are taken to be correct, then also the learned Magistrate at Tezpur has no territorial jurisdiction to try the case. In support of his submissions, learned Counsel refers to the following decisions:- 1. (2004) 8 SCC 100;(Y. Abraham Ajith –vs- Inspector of Police) 2. (2008) 11 SCC 103;(Bhura Ram and others –vs- State of Rajasthan and another) 3. 2011 CRI. L.J 1100;(Sushila Agarwal and Anr. –vs- State of Jharkhand) [8] Resisting the above submissions made on behalf of the petitioners, Ms. D. Borgohain, learned Counsel for the opposite party submits that the complaint as a whole reveals ingredients constituting a criminal offence against the petitioners. According to her, the offence committed by the petitioners is a continuing one and, therefore, the Criminal Court at Tezpur has rightly exercised its Crl. Pet. No. 396 of 2011 Page 4 of 7 5 jurisdiction. In support of her submission, she has referred to the decision of the Apex Court in the case of Bhagirath Kanoria and others -vs- State of M.P; reported in (1984) 4 SCC 222. [9] The rival submissions have been considered. [10] To appreciate the challenge made, a close look at the complaint filed by the opposite party is considered necessary. The complaint no doubt discloses allegations against the petitioners, which may prima-facie constitute ingredients of criminal offence. But all the allegations pertain to incidents which took place at Nagaon, either at the house of the petitioners or at Nagaon Court premises. The complainant is aware that on the basis of such allegations, he would be able to institute a criminal proceeding only at Nagaon, which may not be very convenient for him since he is a resident of Jamuguri, district Sonitpur. It appears, to enable him to file the complaint before the Criminal Court at Tezpur, he stated the following in the complaint :- “On 3rd, 4th and 5th the accused Nomita called the complainant over telephone at night and threatened and told him to do accordingly as written in the document”. [11] This is the only statement made in the complaint which can be said to be within the territorial jurisdiction of the Criminal Court at Tezpur. But this portion of the allegation is totally belied by the evidence of the Crl. Pet. No. 396 of 2011 Page 5 of 7 6 complainant himself. In his cross-examination, he stated that he has hearing problem and, therefore, he does not receive phone calls. According to him, his son receive d the phone calls and told him about the threatening messages of the petitioner No.2. This portion of his evidence makes the above quoted allegation as appearing in the complaint not only contradictory but also totally improbable. If this portion of the complaint is discarded, which should be, the remaining allegations are all which happened at Nagaon. [12] Normally and as a general rule, a complaint is to be read as a whole to ascertain as to whether a criminal offence is made out or not. But if it is found that one portion of the complaint is wholly improbable and has been made or inserted for oblique purpose, such as to bring the case within the territorial jurisdiction of a particular Court, the Court can discard or severe such portion of the complaint, provided such severence does not materially affect the complaint. In the present case, severence of the said portion as indicated above would not affect the merit of the complaint. [13] After discarding the above allegation, in so far the complaint is concerned, no part of the cause of action can be said to have arisen within the territorial jurisdiction of the Criminal Court at Tezpur. The concept of ‘cause of action’ as understood in civil law, is no longer alien to criminal jurisprudence. Crl. Pet. No. 396 of 2011 Page 6 of 7 7 [14] In the above context, this Court is of the considered opinion that the Criminal Court at Tezpur lacks territorial jurisdiction to proceed with the trial of the case. In view of the above discussion and finding, deliberation on the case laws referred to by the learned Counsels is considered not necessary. [15] Accordingly, proceedings of C.R. Case No.1015/2009 pending in the Court of the learned Judicial Magistrate, 1st Class, Sonitpur at Tezpur stands quashed. However, the complainant would be at liberty to file complaint before the appropriate Court at Nagaon, if so advised. [16] Criminal petition is accordingly allowed. [17] No cost. JUDGE Ors./d.de. Crl. Pet. No. 396 of 2011 Page 7 of 7 .
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