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Patna High Court – Orders
Rupesh Sharma & Ors vs State Of Bihar & Anr on 13 October, 2011
                      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.
                                                  -----------

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
3

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.)
 

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