Thursday, April 30, 2009

Madurai Bench: Justice G.Rajasuria Judgment

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

N.Poongodi Vs. V.Irulappan - Crl.O.P.(MD).No.6308 of 2007 [2007] RD-TN 2312 (13 July 2007)

CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA

Crl.O.P.(MD).No.6308 of 2007

and

M.P(MD)No.1 of 2007

1.N.Poongodi

2.A.Rajeswaran

3.Pooranam ... Petitioner

Vs.

V.Irulappan ... Respondent Prayer

Petition filed under Section 482 of the Code of Criminal Procedure, to call for the records pertaining to C.C.No.28 of 2007 on the file of the learned Judicial Magistrate NO.I, Srivilliputtur.

For Petitioners ... Mr.N.Anantha Padmanabhan
For Respondent ... Mr.R.Gandhi

:ORDER:

This petition has been filed to call for the records pertaining to C.C.No.28 of 2007 on the file of the learned Judicial Magistrate NO.I, Srivilliputtur and quash the same.

2. Heard both sides.

3. The background facts which are absolutely necessary and germane for the disposal of this petition would run thus:

The case in C.C.No.28 of 2007 pending in the Court of the learned Judicial Magistrate No.I, Srivilliputtur, emerged out of the complaint lodged with him by the respondent herein for the offences punishable under Section 494 and 406 I.P.C as against the petitioners herein.

4. The gist and kernel of the grievance of the complainant is that the first petitioner herein/A.1 married A.2 for the second time during the subsistence of the marriage with the complainant. The third petitioner is the sister of A.2. A.3 and A.4 died who are not the petitioners herein.

5. Now, the matter is pending before the learned Magistrate and warrant procedure is expected to be followed and so far no charge has been framed. In the mean while, the petitioners herein approached this Court with the main grievance that the learned Judicial Magistrate No.I, Srivilliputtur, is having no jurisdiction at all to proceed with the matter, apart from other grounds as found highlighted in the petition.

6. The learned Counsel for the petitioners by placing reliance on Section 182(2) Cr.P.C would advance his argument to the effect that absolutely there is no whisper about the fact of A.1 and the complainant having last resided within the territorial jurisdiction of the said Court. He would also draw the attention of this Court to paragraph No.2 of the complaint and highlight that according to the very version contained therein, after the alleged first marriage, they both lived in Coimbatore area only and not in Srivilliputtur. In support of his contention, he cited the decision of this Court in S.Elango v. S.Ravindran reported in 1997-2-L.W(Crl.) 620 and Prasanna Kumar v. Dhanalaxmi and others reported in 1988 L.W.(Crl.) 387.

7. An excerpt from the dictum of this Court in S.Elango v. S.Ravindran reported in 1997-2-L.W(Crl.) 620, would run thus: "7. I carefully applied my mind to the submission made by the counsel for the respondent relying on the averments made in para.4 of the complaint and analysed the Section once again and ultimately at the end, I find that I cannot agree with this submission. A reading of sub-section (2) of Section 182 of the Code as a whole indicates that to bring a case within the second limb of sub- section (2) of Section 182 of the Code, the offender must have last resided with his spouse of the first marriage within the jurisdiction of the Court in which the complaint is filed. The word 'offender' is a general word and therefore, it must receive the general construction and meaning. The Legislature has carefully used the word 'offender' here and not the word 'husband'. A husband becomes an offender so far as the wife is concerned in the matrimonial matter when he marries another woman during the subsistance of the first marriage. The word 'offender' must be read, in my view, as offending husband. But for the commissioner of the second marriage, during the subsistence of the first marriage, either of the spouses would not become an offender. If the significance and importance for the word 'offender' as used in the Section is given effect to, then, it can only mean that a complaint can be laid in a Court within whose jurisdiction the offender (husband), after the commission of the offence, last resided with his wife of the first marriage and otherwise not. The context in which the word 'offender' is used also gives help to understand this word. It is not the case of the respondent that the first accused (offender/offending husband) has resided with his spouse of the first marriage, after he contracted the second marriage. Their stay in Balfour Road from March, 1980 to June, 1981 is definitely not after the offence committed by the first accused. The stay of the first accused with his wife of the first marriage in Balfour Road between March, 1980 and June, 1981 cannot be equated to mean the offender having last resided there. It is needless to state that when the words in the Statue are clear and admits no ambiguity, the Courts have to read them as it is and give a general construction for it.

8. Under these circumstances, I am not able to agree with the submission of the learned Counsel for the respondent that the stay in Balfour Road, Kellys, Madras, between March, 1980 and June, 1981, when the first accused had not even thought of marrying for the second time would bring him as the 'offender' within the second limb of sub-section (2) of the Section 182 of the Code. Therefore, I am of the opinion that the complaint presented before the lower Court does not contain any averment necessary to give the jurisdiction to the Judicial Magistrate, Saidapet, to take the case on his file. There is total lack of jurisdiction on the part of the Magistrate in taking the complaint on his file."

8. The dictum laid down in Prasanna Kumar vs Dhanalaxmi and others reported in 1988 L.W.(Crl.) 387, is relating to the absence of relevant averments constituting the offence of bigamy which is not germane for this case as there are averments found set out in the complaint herein.

9. Placing reliance on those precedents, the learned Counsel for the petitioners would highlight that once, the averments are missing in the complaint, which would attract the jurisdiction of the Court concerned, this Court could rightly quash the entire case as per Section 482 Cr.P.C.

10. Per contra, the learned Counsel for the respondent herein, by way of gainsaying and contradicting, challenging and torpedoing the arguments of the learned Counsel for the petitioner, would submit that paragraph No.2 has to be read along with paragraph No.4 of the complaint. He would develop his argument to the effect that five sovereigns of gold jewels were entrusted to the first petitioner/A.1 at the house of the respondent herein, because the former happened to be the wife of the latter and that she was also running a clinic nearby his house in Srivilliputtur area.

11. No doubt, these are factual issues which should necessarily be gone into by the learned Magistrate. The legislators thought fit to put some check on the real frivolous complaints if any. In matters relating to the private complaints, if warrant procedure is attracted, then before framing charge itself, there should be examination and cross-examination optionally. Thereafter, before framing charge based on the evidence adduced, both could advance arguments including on point of jurisdiction. Inasmuch as in this case, the petitioners/accused are having due opportunity which is provided by the Statute itself as set out supra. However, the learned Counsel for the petitioners would submit without even waiting upto that stage, the Calendar Case could be quashed by invoking the provision under Section 482 Cr.P.C on point of jurisdiction.

12. In the wake of the arguments and counter arguments, I am of the considered opinion that there are certain factual circumstances which should necessarily be considered before deciding whether the Court at Srivilliputtur is having territorial jurisdiction at all or not to entertain the case.

13. The learned Counsel for the respondent would submit that over and above, invoking Section 494 I.P.C, the complaint also invoked Section 406 I.P.C. In this case, while disposing of this petition, I would like to observe that once, the trial Court comes to the conclusion that for the offence under Section 494 I.P.C, it has no jurisdiction of the said Court, then simply because the offence under Section 406 I.P.C has been cited, he cannot proceed to try it alone. The entire case under Sections 494 and 406 I.PO.C may have to be transferred in the event of the trial Court holding that it has no territorial jurisdiction to try the offence under Section 494 I.OP.C. In this peculiar case alone, that would be the consequence and in cases if apart from Section 494 I.P.C., there are other offences which could independently tried, then for such offence alone, the trial could proceed.

14. Hence, in such a case, once, the Court comes to the conclusion that it is not having jurisdiction to try the case under Section 494 I.P.C., then in that case, irrespective of the fact that he may be having jurisdiction relating to the offence under Section 406 I.P.C., the entire case should go before the Coimbatore Court and not before him. I could very well understand what is in the mind of the petitioners that the first petitioner being a lady Doctor and the second petitioner also happened to be a Doctor working at Ooty, they may find it difficult to visit the Court at Srivilliputtur for every hearing till the stage comes for framing charges.

15. In view of the fact that the identity of the accused is not in dispute and there are factual issues to be decided by the learned Magistrate Court and that the accused are having their avocation at Ooty, I would like to exempt all the accused from appearing before the learned Judicial Magistrate No.I, Srivilliputtur, till the charges if any, are framed. Accordingly, the learned Magistrate shall deal with the matter. The petitioners are at liberty to file application under Section 244(1) Cr.P.C for discharging them; in the event of such petition being filed and even otherwise suo motu the learned Magistrate shall look into all the issues raised in this Criminal Original Petition and dispose it of as per law.

16. With the above direction, this petition is disposed of. Consequently, connected M.P.(MD)No.1 of 2007 is closed.

G.RAJASURIA, J

rsb

To

1.The Judicial Magistrate NO.I, Srivilliputtur.

2.The Public Prosecutor,

Madurai Bench of Madras High Court,

Madurai.

Courtesy_
http://www.rishabhdara.com

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