Criminal Application No.3751 of 2007

8th December, 2009

Petitioner Counsel: Mr. P. R. PATIL
Respondent Counsel: Mr. N. B. PATIL,Mr. P. R. KATNESHWARKAR

Cases Cited:
Lupin Lab Ltd. Vs. Arun Shardram Deshpande, 2005 (Suppl.) Bom.C.R. (Cri.) 434 [Para 4]

JUDGMENT

JUDGMENT:- By the present application u/s.482 of the Cr.P.C., the applicants who are arrayed as an accused in RCC No.153/2007 pending of the file of J.M.F.C. Parola, Dist. Jalgaon for the alleged offence u/s.420 r/w. 34 of IPC have approached this Court to quash and set aside the said proceeding.

2. Rule. Rule made returnable forthwith. By consent of the parties, the application is finally heard at the stage of admission.

3. Before considering the submissions across the bar in support of their rival contentions, it is necessary to consider the certain facts which gave rise to file the present application. It appears that on 30-01-2007, engagement of daughter of complainant/respondent no.2 by name Aarti took place with applicant no.2 herein. It further appears that after the engagement ceremony was over as stated, the marriage had not immediately taken place. It further appears that on 01-04-2007, the respondent no.2, the complainant alongwith some of his relatives approached the first applicant at his residence situated at Dhule and inquired as to when they will perform the marriage ceremony. It appears that at that time, there was demand by these applicants from the 2nd respondent that unless the dowry is paid in the sum of Rs.3,00,000/-, marriage will not be performed. As dowry was not paid as demanded by these applicants, the engagement between the daughter of respondent no.2 and applicant no.2 break down and marriage between them was not performed. It appears that on this basis, complaint came to be lodged by 2nd respondent in Parola Police Station, on the basis of which an offence came to be registered only u/s.420 r/w.34 of IPC. Even though there are allegations about the demand of dowry, no sections pertaining to demand of dowry i.e. 3 and 4 of the Dowry Prohibition Act were added in the sections for which the complaint came to be lodged. It appears that after completion of investigation, charge-sheet came to be filed in the Court of J.M.F.C. Parola on 29-06-2007. Learned Magistrate took cognizance of the offences only u/s.420 r/w.34 of IPC, but it appears that no cognizance was taken u/s.3 and 4 of the Dowry Prohibition Act. On issuance of summons, these applicants appeared before the Court of Magistrate and were released on bail.

4. Now by the present application, these applicants have approached this Court for quashing of the said FIR and the charge-sheet u/s.482 of The Cr.P.C. The challenge is basically on two points. According to learned counsel appearing for the applicant/original accused in RCS No.153/2007, though on clear perusal of the facts alleged in the complaint, the alleged offence if took place at Dhule and not at Parola, and if the Police Station where the complaint was lodged and investigation was carried out and the charge-sheet was filed in the Court of J.M.F.C. Parola, then this filing of the complaint as well as taking cognizance by the Court of J.M.F.C. Parola is without jurisdiction as there is bar u/s.177 of The Cr.P.C. that the cognizance is taken by the Court of Magistrate without jurisdiction. The second phase of submissions across the bar by relying on the judgment reported in 2005 (Suppl.) Bombay C.R. (Cri.) 434 in the matter of Lupin Lab Ltd., and others Vs. Arun Shardram Deshpande and another wherein the Bench of this Court has also dealt with the similar situation where the engagement took place between the daughter of respondent no.2 and petitioner no.2 was not finalized in performance of the marriage, hence the father of the girl filed a complaint against the proposed groom and his relatives u/s.420, 499 r/w.34 of IPC. For the reasons quoted in para no.7 and 8 of the judgment, the scope of section 415 to 420 of The IPC is thoroughly discussed by this bench and it is observed and concluded that considering the factum of engagement between the parties and that engagement was break down by not performing the marriage will not cover under the ingredients which require to be satisfied to constitute an offence u/s.420 of the IPC, but at the same time, learned counsel appearing for the applicant is fair enough to submit that from the allegations in the complaint on which offence came to be registered against the applicant discloses prima facie offence u/s.3 and 4 of the Dowry Prohibition Act.

5. The application is opposed by the learned counsel appearing for 2nd respondent/the original complainant. The submissions of counsel appearing for 2nd respondent are supported by learned APP appearing for the State.

6. Chapter XIII of The Cr.P.C., deals with the jurisdiction of the Criminal Courts in inquiries and trials. Section 177 of this chapter deals with ordinary place of inquiry and trial. For clarity, it is necessary to reproduce section 177 which read as follows:

Ordinary place of inquiry and trial : Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.

7. On clear perusal of the provisions u/s.177 of The Cr.P.C., the offence to be tried by a Criminal court within whose local jurisdiction it was committed. On bare perusal of the complaint on which offence came to be registered in Parola Police Station and the cognizance was taken by the J.M.F.C. Parola clearly demonstrate that on 01-04-2007, complainant and his relatives i.e. the 2nd respondent and his relatives had been to the place of first applicant at Dhule where the earlier engagement took place between applicant no.2 and the daughter of 2nd respondent. That engagement was break down by non performance of the marriage as these applicants decline to perform the marriage of 2nd applicant with the daughter of 2nd respondent. Thus the fact is clear that the cause of action or the alleged offence took place at Dhule and not at Parola and if it is so, considering the scope of section 177 of Cr.P.C., only the criminal Court at Dhule is having jurisdiction to conduct the trial in respect of the said alleged offence took place at Dhule.

8. So far as the ratio as laid down in the ruling of this Court cited supra, the ratio as laid down in the given set of facts, no offence constituted u/s.420 of IPC as neither party has induced other parties under the promise and have wrongful loss or wrongful gain to their credit. In the set of facts of said ruling, and the set of facts on which the complaint is lodged in the present offence are identical with each other and if it is so, on the basis of allegation made in the complaint, and offence came to be registered in Parola Police Station will not constitute an offence u/s.420, r/w.34 of IPC.

9. The fact remains that even though no offence was registered u/s.3 and 4 of The Dowry Prohibition Act, and no cognizance was taken by the Court of Magistrate at Parola in respect of that offence, it is necessary that while issuing the process even though the charge-sheet is filed on the basis of police report as contemplated u/s.173(5) of the Cr.P.C., the concerned Magistrate require to go through the charge-sheet and to find out which offence is prima facie made out and not to pass mechanical order of issuance of process which happened in the case in my hand. In the premise, the cognizance taken by the Court at J.M.F.C. Parola, for an offence punishable u/s.420 r/w.34 of IPC, i.e. is liable to be quashed and set aside and accordingly the charge-sheet filed in the Court of J.M.F.C. Parola vide RCC No.153/2007. But as the offence is made out from the complainant for an offence punishable u/s.3 and 4 of The Dowry Prohibition Act. The charge-sheet filed in the Court of J.M.F.C. is transferred to the Court of C.J.M., Dhule for further proceeding in accordance with Law. C.J.M. Dhule is directed to issue notice to both the sides to appear before him on receipt of the R & P.

10. Rule is thus made absolute as indicated above. Application stands disposed of accordingly with no order as to costs.

Petition allowed.