“hubby NOT taking me back” & “they abused me ovr phone” will NOT work any longer! Jarkhand HC


498a wife tries to say that her husband has NOT taken her back and that creates a continuing cruelty! she also tries to rope in in laws / relatives on the basis of an alleged telephone threat !! the High court clearly appreciates the reality and quashes the cases

the HC goes on to say "…We find that the offence of cruelty cannot be said to be a continuing one as contemplated by Sections 178 and 179 of the Code. We do not agree with the High Court that in this case the mental cruelty inflicted upon the respondent No. 2" continued unabated" on account of no effort having been made by the appellants to take her back to her matrimonial home, and the threats given by the appellants over the telephone. It might be noted incidentally that the High Court does not make reference to any particular piece of evidence regarding the threats said to have been given by the appellants over the telephone. Thus, going by the complaint, we are of the view that it cannot be held that the Cort at Ambikapur has jurisdiction to try the offence since the appropriate Court at Delhi would have jurisdiction to try the said offence. Accordingly, the appeal is allowed."


IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 74 of 2002
******************************

1. Shakti Tiwari son of Gorakh Nath Tiwari, village Rohini, P.S. Jasidih, District Deoghar
2. Kalawati Devi, wife of Lalan Jha, daughter of Gorakh Nath Tiwari, resident of Raj Bali Lane, Church Road, Ranchi, District Ranchi … … Petitioners

Versus

1. State of Jharkhand
2. Asha Devi daughter of Uma Kant Jha, resident of Matri Mandir,
Girls School Road, Jaldhar Niwas, Deoghar Town, P.S. Deoghar
(Sadar), District Deoghar … … Opposite Parties

With Cr.M.P. No. 4963 of 2001

1. Gorakhnath Tiwari, son of late Panchu Tiwari
2. Nand Kumar Tiwari alias Anant Kumar Tiwari, son of Gorakhnath Tiwari
3. Smt. Ahilaya Devi, W/o Gorakhnath Tiwari, all resident of Rajabali
Lane, Church Road Ranchi P.S. Lower Bazar, District – Ranchi …. …. Petitioners

Versus

1. The State of Jharkhand
2. Smt. Asha Devi, D/o Umakant Jha Resident of Jaldhar Niwas near
Matrimandir Girl’s High School, Deoghar Town, P.S. & District –
Deoghar … … Opposite Parties

******
CORAM : HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY
******
For the Petitioners : Mr. Altaf Hussain, Advocate
For the Respondents : Mrs. Anita Sinha, A.P.P.
For the Opp. Party No. 2 : None
******
C.A.V. on 12.01.2015 Pronounced on 3/08/2015

Since both the applications preferred under Section 482 of the Cr.P.C. is with respect to quashing of the entire criminal proceedings initiated against the petitioners including the order dated 30.08.2001 passed by Shri P. P. Pandey, learned Judicial Magistrate, Deoghar in P.C.R. Case No. 414 of 2001 by which cognizance has been taken for the offences punishable under Sections 498A, 323 of the Indian Penal Code the same are being disposed of by this common order.

2. The prosecution story as would appear from the complaint petition instituted by the complainant-opposite party No. 2 is to the effect that the marriage of the complainant was solemnized on 10.07.1997 at Deoghar and out of the said wedlock a daughter was also born. It has been alleged that subsequently there was a demand of dowry of cash of Rs. 50,000/-, one Hero Honda motorcycle and a colour T.V. and on non-fulfillment of the demand the complainant was tortured by the accused persons. It has also been alleged that the accused no. 5, who is the, sister-in-law (Nanad) of the complainant had taken away some golden ornaments but refused to return the same. It has further been alleged that the complainant was forcibly driven out from the matrimonial house but never did the accused persons make any attempt to bring her back.

3. After filing of the complaint petition and on conducting an enquiry by examining the complainant on solemn affirmation as well as her witnesses cognizance was taken by Shri P.P. Pandey, learned Judicial Magistrate, Deoghar on 30.08.2000 of offences punishable under Sections 498A, 323 of the Indian Penal Code.

4. Heard Mr. Altaf Hussain, learned counsel for the petitioner and Mrs. Anita Sinha, learned A.P.P. for the State. No one appears on behalf of the opposite party No. 2.

5. Mr. Altaf Hussain, learned counsel for the petitioner while assailing the order taking cognizance has submitted that the complaint petition reveals that the allegations against the accused persons are general and omnibus in nature. It has further been submitted that in the complaint petition neither any date has been mentioned nor the manner of occurrence has been given in details and the complaint case has been instituted only to harass the petitioners. It has further been submitted that prior to initiation of the complaint case the husband of the complainant namely Nand Kumar Tiwary (Petitioner No. 2 in Cr.M.P. No. 4963 of 2001) had already filed an application for divorce under Section 13 of the Hindu Marriage Act, 1955 and the complaint case has been instituted as a counter blast. Learned counsel further adds that the entire incident as alleged is said to have been taken place within the territorial jurisdiction of Ranchi whereas the complaint case has been instituted at Deoghar and since there is apparent lack of jurisdiction at Deoghar for entertaining the complaint petition the same deserves to be quashed.

6. Ms. Anita Sinha, learned A.P.P. appearing for the State has submitted that the complainant was residing at Ranchi at her matrimonial house and she was driven out after having committed torture upon her and having no other alternative the complainant started residing at Deoghar and since her residing at Deoghar was a consequence of her being turned out from her matrimonial house at Ranchi the territorial jurisdiction at Deoghar cannot be taken away in view of the said facts. It has also been submitted that the learned Judicial Magistrate on going through the complaint petition as well as upon examination of the witnesses had rightly taken cognizance as sufficient evidence has been brought forward by the complainant for taking cognizance.

7. After hearing the learned counsel for the parties, I find that the complaint petition had been instituted by the complainant against all her in-laws levelling various allegations against them. The complaint petition further reveals that the entire acts of alleged torture and demand of dowry and other acts enumerated in the complaint petition had taken place at Ranchi. No allegation has been made by the complainant with respect to any part of the torture or demand of dowry having taken place at Deoghar so as to prosecute the petitioner at Deoghar on account of territorial jurisdiction. Even on her examination under solemn affirmation the complainant has not levelled any allegation against any of the accused persons which would resultantly bring Deoghar within the ambit of territorial jurisdiction. In this context it would be apt to refer to a judgment of the Hon’ble Supreme Court in the case of Amarendu Jyoti & Ors. v. State of Chhattisgarh & Ors. reported in [2015 (1) East Cr C 231 (SC)] "7. The core question thus is whether the allegations made in the F.I.R. constitute a continuing offence. We find from the F.I.R. that all the incidents alleged by the complainant in respect of the alleged cruelty are said to have occurred at Delhi. The cruel and humiliating words spoken to the 2nd respondent-wife by her husband, elder brother-in-law and elder sister-in-law for bringing less dowry are said to have been uttered at Delhi. Allegedly, arbitrary demands of lakhs of rupees in dowry have been made in Delhi. The incident of beating and dragging the respondent No. 2 and abusing her in filthy language also is said to have taken place at Delhi. Suffice it to say that all overt acts, which are said to have constituted cruelty have allegedly taken place at Delhi. The allegations as to what has happened at Ambikapur are as follows:

"No purposeful information has been received from the in-laws of Kiran even on contacting on telephone till today. They have been threatened and abused and two years have been elapsed and the in-laws have not shown any interest to call her to her matrimonial home and since then Kiran is making her both ends meet in her parental home. To get rid of the ill-treatment and harassment of the in-laws of Kiran, the complainant is praying for registration of an F.I.R. and request for immediate legal action so that Kiran may get appropriate justice."

8. We find that the offence of cruelty cannot be said to be a continuing one as contemplated by Sections 178 and 179 of the Code. We do not agree with the High Court that in this case the mental cruelty inflicted upon the respondent No. 2" continued unabated" on account of no effort having been made by the appellants to take her back to her matrimonial home, and the threats given by the appellants over the telephone. It might be noted incidentally that the High Court does not make reference to any particular piece of evidence regarding the threats said to have been given by the appellants over the telephone. Thus, going by the complaint, we are of the view that it cannot be held that the Cort at Ambikapur has jurisdiction to try the offence since the appropriate Court at Delhi would have jurisdiction to try the said offence. Accordingly, the appeal is allowed."

8. In the present case also the complaint petition does not disclose that the mental cruelty upon the complainant continued unabated as the only grounds which has been taken is that the husband of the complainant did not come and take her back to her matrimonial house.

9. Apart from the above one noticeable aspect of the case is the impugned order dated 30.08.2011 wherein the learned court below has given a finding with respect to the statement of the complainant to the effect that the same neither discloses about any date of occurrence or manner of occurrence nor any witnesses have been produced on the point of her being turned out from her matrimonial house. Even otherwise the allegations which have been narrated in the complaint petition do seem to be general and omnibus in nature and appears to have been instituted on account of Matrimonial Title Suit No. 09 of 2001 instituted by the husband of the complainant much prior to filing of the complaint case.

10. In view of what has been discussed above I do find merit in this application. Accordingly, this application is allowed and the entire criminal proceedings including the order dated 30.08.2001 passed by Shri P. P. Pandey, learned Judicial Magistrate, Deoghar in P.C. R. Case No. 414 of 2001 by which cognizance has been taken for the offences punishable under Sections 498A and 323 of the Indian Penal Code is, hereby, quashed.

(R. Mukhopadhyay, J.)

Umesh/-

*****************

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regards

Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

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