IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.29389 of 2009
1. Rupesh Sharma, S/O-Radhe Krishna Sharma
2. Radhe Krishna Sharma, S/O- not known
3. Chinta Devi, W/O-Radhe Krishna Sharma
4. Rakesh Sharma, S/O-Radhe Krishna Sharma
5. Rakshmi @ Chanchala, W/O-Rakesh Sharma
All resident of Mohalla-New Kazichak Dhelwan Gosain Barh, P.O+P.S.-Barh,
District-Patna ................Petitioners.
Versus
1. The State Of Bihar
2. Pramila Devi, D/O-Guru Charan Mistri, resident of Lakshman Baba Bhawan,
Ward No. 5, P.S.& District-Lakhisarai .........Opposite Parties.
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For the Petitioners :-Mr. Mukesh Kumar-II (Adv)
Mr. Bijay Kumar Pandey (Adv)
For the State :- Dr. Indiwar Kumari (A.P.P.)
03 13.10.2011 Heard learned counsel for the petitioners as well as
learned Additional Public Prosecutor for the State.
None appears on behalf of the opposite party no. 2
in spite of service of notice on her personally as reported by the
process server.
Learned counsel for the petitioners submits that the
impugned order dated 13.07.2007 passed by Sri Rakesh Chandra
Shrivastava, learned Sub Divisional Judicial Magistrate,
Lakhisarai in Complaint Case No. 24 C of 2007 is an illegal order
because the aforesaid Magistrate had got no jurisdiction to pass
order in respect of an offence which had taken place outside his
jurisdiction. Learned counsel for the petitioners drew my attention
towards contents of complaint petition and submitted that as per
complaint petition itself, the entire occurrence took place under
the jurisdiction of Barh, District-Patna whereas the complaint case
has been filed in the court of Additional Chief Judicial Magistrate,
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Lakhisarai who had got no jurisdiction to take cognizance of the
aforesaid complaint case. To fortify his above stated contention,
he referred a decision reported in 2008 (3) PLJR SC 367 in which
it has been held by the Apex Court of this country that offences
under Sections 498 (A) 406 and 147 of the Indian Penal Code
cannot be tried by the court where cause of action has not accrued
at all. On the strength of above stated decision, he prays for
quashing the impugned order dated 13.07.2007 passed in
Complaint Case No. 24 C of 2007.
On the other hand, learned Additional Public
Prosecutor appearing for the State submitted that offence under
Section 498 (A) is a continuing offence and according to
complaint case, after ouster from matrimonial home, the
complainant is residing at Lakhisarai. So, she rightly chose to file
complaint case in the court of Additional Chief Judicial
Magistrate, Lakhisarai. It is also contended by him that even if, it
assumed that learned Additional Chief Judicial Magistrate,
Lakhisarai/Judicial Magistrate, Lakhisarai had got no jurisdiction
to try the above stated complaint case, then also, cognizance taken
by the court of Lakhisarai is not bad in the eye of law and, at best,
this court may transfer the aforesaid complaint petition to the
concerned court which has got jurisdiction to try the offence of
complaint case no. 24 C of 2007.
As I have already stated that on behalf of the
Opposite Party No. 2 none has appeared before this Court in spite
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of service of notice. So, in my view, this petition can be disposed
of on admission stage itself on the basis of materials available on
the record as well as submissions of the parties.
It is manifest from perusal of contents of complaint
petition that the entire occurrence took place under the
jurisdiction of Barh, District-Patna whereas complaint case has
been filed in the court of District-Lakhisarai. It is apparent from
the above stated decision reported in 2008(3) PLJR SC 367 that
the court in whose jurisdiction the cause of action has not
accrued, has got no jurisdiction to proceed with the case. In the
present case, admittedly, the court of Lakhisarai had got no
jurisdiction to proceed with the complaint case no. 24 C of 2007
as much as the entire occurrence had taken place under the
jurisdiction of Barh, District-Patna and, therefore, I am of the
considered opinion that learned counsel for the petitioners has
rightly submitted that the impugned order passed by learned Sub
Divisional Judicial Magistrate, Lakhisarai is bad in law and
cannot sustain in the eye of law.
So far as the submission of learned Additional
Public Prosecutor is concerned, in my view, the same are not
tenable because as per complaint case itself, the alleged
occurrence had taken place under the jurisdiction of Barh,
District-Patna and, therefore, it cannot be said that the Lakhisaria
Court has also got jurisdiction to proceed with the case as an
offence under Section 498 (A) of the Indian Penal Code is a
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continuing offence.
On the basis of aforesaid discussions, in my view, it
is a fit case in which this Court must exercise its power vested
under Section 482 of the Cr.P.C. and, accordingly, this petition is
allowed and the impugned order dated 13.07.2007 passed by Sri
Rakesh Chandra Shrivastava, learned Sub Divisional Judicial
Magistrate, Lakhisarai in Complaint Case No. 24 C of 2007 is
quashed.
However, the Complaint Case No. 24 C of 2007 be
returned to the complainant, if she is available. Furthermore, she
may file fresh complaint case before the court of Barh, District-
Patna, if she is so advised.
SHAHZAD ( Hemant Kumar Srivastava, J.)