Dowry articles entrusted at Amritsar and brought at Malerkotala at Matrimonial House - FIR lodged under Section 406 IPC at Amritsar - Amritsar court has the jurisdiction

PUNJAB AND HARYANA HIGH COURT

Before :- S.C. Malte, J.
Criminal Revision No. 322 of 1997. D/d. 7.8.1997.

Surinder Kaur alias Namrata - Petitioner
Versus
State of Punjab - Respondents

For the Petitioner :- Mr. R.S. Cheema, Sr. Advocate with Rajiv Trikha, Advocate.
For the Respondent No. 2 :- Mr. T.P.S. Mann, Advocate.

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Punjab and Haryana High Court, Chandigarh Judgments

JUDGMENT

S.C. Malte, J. - The wife has preferred this petition against the order vide which the Chief Judicial Magistrate, Amritsar has held that he has no territorial jurisdiction to entertain the case
, and that case should have filed in the Court at Malerkotla.
2. The petitioner married accused Kirpal Singh on 6.5.1990 at Amritsar. At the time of marriage, 'Stridhan' articles worth Rs. 5 lacs in the shape of cash, gold, ornaments, bonds and other house-hold articles, as mentioned in the list attached with the FIR, were entrusted to the father-in-law of the petitioner and Kanwaljit Kaur, the sister-in-law of the complainant. There was a discord in the matrimonial relations due to variety of reasons. Suffice it to mention that the allegations by the petitioner were that she was assaulted, ill-treated and tortured for extorting more valuables and cash from her or her parents. It has also been alleged that her husband performed second marriage with Mandeep Kaur alias Deepti. Further, she alleged that her husband had attempted to kill her. Efforts were made to bring about reconciliation. As per the FIR filed by the petitioner, she along with her parents went to the house of her in-laws at Malerkotla for sorting out the issue. At that time she and her parents were insulted and were turned out of the house by the accused. At that time, she demanded all the 'Stridhan' articles, but the accused declined to return those articles. The petitioner, therefore, filed a petition before the Senior Superintendent of Police, Amritsar. It appears that on the basis of that, FIR was registered under Section 498-A IPC.
3. It may be mentioned here that though the offence under Section 498-A alone was registered on the basis of FIR submitted by the petitioner, her FIR disclosed the offence under Sections 406 and 494 IPC also. It may further be mentioned that in the course of investigation, gold articles as per Annexure P3 and other household articles and electric appliances as per Annexure P4, were recovered. The allegations are that, these articles belonged to the petitioner as her 'Stridhan', and these were retained by the accused though the petitioner had demanded.
4. On the basis of the investigation, charge against the accused was submitted in the Court of Chief Judicial Magistrate, Amritsar, for the offence under Section 498-A IPC. The Chief Judicial Magistrate, Amritsar was of the view that the offence under Section 498-A was committed at Malerkotla, therefore that Court has jurisdiction to try offence. In so far as it pertains to offence under Section 406 IPC he was of the view that since the father of the petitioner made a statement before him that an amount of Rs. 1.5 lac was given to the accused Kirpal Singh and his father, on their assurance to return it, that payment of amount was by way of loan and was not on account of dowry. Thus, according to him, he has no territorial jurisdiction.
5. The Counsel for the petitioner brought my attention to the very strange method adopted by the Chief Judicial Magistrate, Amritsar, while disposing of this matter. Annexure P1 indicates that at the time of consideration of the framing of charge itself, the Chief Judicial Magistrate recorded the statement of the father of the petitioner. The statement indicates that an amount of Rs. 1.5 lac was given to the accused on their assurance to return the amount. He further stated that the said amount has not been returned; and he was threatened that if he insisted on the return of that amount, they would torture his daughter, and she would not be allowed to stay in their house. The counsel for the respondents submitted that as per Section 311 Cr.P.C. the Court is empowered to requisition the attendance of any person at any stage of the case and examine him. According to him the examination of the father of the petitioner at a stage of framing the charge was in keeping with the provision of Section 311 Cr.P.C. In my opinion that is totally misconceived submission. Section 311 Cr.P.C. though empowers the Court to record the evidence of any person at any stage of the enquiry or to recall or re-examine such person already examined, that power is essentially to be exercised for the purpose of arriving at just decision of the case. When the matter was at the stage of framing the charge, the procedure to be adopted was as per part A of Chapter XIX of the Cr.P.C. Section 238 Cr.P.C. provides that in a warrant case instituted on Police report, the Court should satisfy that the provisions of Section 207 are complied with. Thereafter he should proceed to consider under Sections 239 and 240 of the Cr.P.C. as to whether the accused should be discharged or should be charged. Section 239 Cr.P.C. provides that the Magistrate then shall consider the Report submitted by Police and the documents sent with report under Section 173 Cr.P.C. and may make an examination of the accused as the Magistrate thinks necessary, and further give an opportunity to the prosecution and the accused of being heard. After doing so, he has to consider whether the charge against the accused is groundless, or otherwise. If he thinks that there is a case for prosecuting the accused who has committed an offence triable by him, the Magistrate shall frame the charge. Obviously, therefore, at the stage of framing the charge under these sections, there would be hardly any justification to invoke provisions of Section 311 of the Cr.P.C. The Chief Judicial Magistrate has adopted a strange method of recording a statement of a person at the time of charge in a case filed on the Police report. Moreover, that statement has not been properly appreciated and applied by him. In that statement it is clearly indicated that an amount of Rs. one and a half lac had been given on assurance of return of that amount; and demand for the return of that amount was turned down at the point of threat of torture to the present petitioner.
6. In so far as it pertains to the offence under Section 498-A Cr.P.C., these instances have taken place at Malerkotla, and that offence would be triable in the Court of Malerkotla, if that is the only offence to be tried in this case. In this case there is an allegation regarding offence under Section 406 IPC also. Offence under Section 406 IPC is triable at the place where the offence of criminal breach of trust was committed, or at the place where any part of the property which is the subject matter of the offence, was received or retained, or was required to be retained or was required to be returned or accounted for by the accused persons. Clause 4 of Section 181 Cr.P.C. applies to such cases. In this case admittedly the marriage took place at Amritsar. The dowry articles or 'Stridhan' articles were given at the time of marriage at Amritsar. It was contended by the respondent that there is no allegation that a particular 'Stridhan' article was given or entrusted to a particular accused. In respect of entrustment of 'Stridhan' articles one has to take into consideration the common custom followed at the time of entrustment of such articles. These articles are sent along with the bride when she leaves her parents' house soon after the marriage and enters in her matrimonial home. These articles are normally kept in her matrimonial home. The term 'entrustment' in such cases is to be understood and interpreted in view of definition in Section 405 of the IPC, which contemplates that entrustment could be dominion of the accused over property. It is enough if the circumstances indicate that the accused had dominion over the property. Presently I need not deal that aspect in details. Suffice it to mention that since the marriage took place at Amritsar and the 'Stridhan' in question had also left along with the bride when she left her parents' house, the accused can be said to be under obligation in this particular situation to return those articles at the place where the wife requires it to be returned. To spell out the offence under Section 406 IPC, it would be matter of evidence as to who can be said to be under obligation to return these articles. Any ambiguity in that respect in the complaint, would be an aspect to be considered while evaluating the evidence; by applying as one of the tests as to whether the ambiguity is an omission amounting to contradiction as per explanation to Section 162 Cr.P.C.
7. Para 11 of the complaint Annexure P2 indicates that the petitioner had demanded the dowry articles and 'Stridhan' articles, but the accused declined to return. Thereafter the petitioner came back to her parents' house. Alleged, while in the house of the accused, the wife had demanded these articles, but the accused declined to return these articles. If these articles formed the 'Stridhan', articles given to the bride at the time of marriage, in this particular case, these are required to be returned to her at the place where she was presently staying. Thus for both these reasons it would appear that the offence punishable under Section 406 of IPC, is triable at Amritsar.
8. The question, therefore, is in which of the two Courts the case would be triable in case offence under Section 498-A IPC is triable in one Court, and offence under Section 406 IPC is triable in either of the two Courts. The reply in that respect can be found under Section 184 Cr.P.C. It provides that in a case where person is charged with more than one offences which, by virtue of provisions of under Sections 219, 220 and 221 of Cr.P.C. can be enquired into or tried by any Court competent to inquire that case, may be tried in any of those Courts. Section 220(1) Cr.P.C. provides that in case where any one series of acts connected to one another form same transactions, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. The question thus is as to whether it could be said that offences under Section 498-A and Section 406 in this case are the outcome of series of acts connected to one another so as to form same transactions. In order to sort out that aspect, one has to take into consideration the sequence of events in this case. Allegations are that accused committed acts falling under Section 498-A IPC. That ultimately culminated into the deprivation of the matrimonial home to the wife. At the same time she had demanded the return of 'Stridhan', which was declined. So the events in this case are so closely connected with each other that it can be safely said that these form series of acts in the course of, and resulting in, cruelty under Section 498-A IPC. These are series of acts so connected together as to form transaction of cruelty as defined by Explanation to Section 498-A IPC. The word 'transaction' is a noun form the transitive verb 'transact', the dictionary meaning of which, among others, is to carry on or conduct activities to a conclusion. In this case the allegation of conduct falling under Section 498-A IPC also encompasses the alleged denial to return 'Stridhan'. In my opinion, therefore, these cases could have been tried at the Court in Amritsar also.
9. At this stage, the counsel for the respondent prayed time till tomorrow morning to enlightening as to whether offence under Section 406 IPC would be spelt out if the property is returned through police.
10. Adjourned to 7.8.1997.
Sd/-
S.C. Malte,
August 6, 1997, JUDGE
JUDGMENT (Dated 7.8.1997) PASSED BY THE HON'BLE MR. JUSTICE S.C. MALTE
11. Today, the counsel for the respondent placed before me the case of Krishan Lal v. Davinder Kumar, 1991 Criminal Court Cases 317. In that case, Single Bench of this Court dealt with a case in which it was found that the dowry articles have been returned in proceedings conducted through the police on 29.10.1988 and certified copy in that respect had been placed on record. He further observed that out of vengeance there is a tendency to rope in relations of the husband. A divorce petition was also pending in that case. Ad-interim maintenance was also fixed. Thus taking into consideration the totality of circumstances, and litigation between the parties. Their Lordship thought it proper to quash the complaint. In that ruling, there is no proposition laid down as to how the offence under Section 406 would be or would not be spelt out in a given circumstance. That case has no application in this case because as mentioned above, after the FIR was registered, the articles were recovered by the police in the course of investigation. These articles are claimed to be the 'Stridhan' articles.
12. The counsel for the respondent has also raised the objection that the petitioner as such should have approached the Sessions Court initially instead of rushing to the High Court in revision. No doubt, the petitioner should have approached the lower available Court for getting the relief. Nonetheless the High Court has also jurisdiction to entertain this revision though the petitioner had not approached the Sessions Court. In the given set of circumstances, therefore, this Court would be justified in entertaining the revision petition directly. In this case already matter has been argued extensively. I further observe that FIR was registered on 17.12.1995, and as yet the matter has not progressed further since the charge sheet was submitted in the Court. In view of that, I do not find any substance in technical objection that the revision should have been submitted in the Sessions Court.
13. Respondent's counsel also raised question of the locus standi of the revision petitioner. The question of locus standi is to be considered from the angle as to who would be the person materially affected by the decision. Moreover, revisional jurisdiction can be invoked suo moto in order to satisfy as to the legality, correctness and propriety of the impugned order. I, therefore, find no substance in this technical objection also.

14. I have already observed that the Chief Judicial Magistrate, Amritsar has committed grave mistake in adopting the procedure for recording the statement of the father of the complainant at the stage of framing the charge itself. The counsel for the petitioner has, therefore, expressed that the petitioner has justification to say that the matter should not be entrusted to the same Magistrate. Obviously, justice should not only be done but should also appear to have been done. In view of that, I propose to transfer this matter to Additional Chief Judicial Magistrate, Amritsar. Hence, the revision is allowed. The order dated 20.12.1996 passed by Chief Judicial Magistrate, Amritsar is set aside and the case is sent back to the Additional Chief Judicial Magistrate, Amritsar for proceedings in the light of observation made above. He is further directed to expedite the hearing of the case.
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