Mansoor Ahmad Mir, J.
1. Petitioner has challenged order dated 24.8.2006 passed by the learned Principal Sessions Judge, Budgam in a complaint titled as Anita Pandita v. Vijay Bhat and Ors., dismissing the complaint under Sections 494 and 498, Ranbir Penal Code (for shot 'the Code'). It is necessary to notice the brief facts of the case as under:
2. Petitioner Anita Pandita-complainant filed a complaint titled as Anita Pandita v. Vijay Bhat and Ors., before the learned Judicial Magistrate, 1st. Class (Munsif), Budgam on 3.2.2006 against respondents 1 and 2 and nine more persons named in the complaint. Preliminary statements of the complainant and two witnesses came to be recorded. After perusing the complaint, preliminary statements of complainant and two witnesses, committal Court has drawn cognizance and issued process against accused/respondent Nos. 1 and 2 for the commission of offence under Sections 494 and 109 of the Code. The committal Court on 3.4.2006 after securing presence of accused/respondents 1 and 2 passed the committal order on 3.4.2006 and committed the case to the Court of leared Sessions Judge, Budgam and also directed the accused to cause appearance before the trial Court i.e., Sessions Judge Budgam on 4.4.2006.
3. Accused/respondents raised preliminary objections that the trial Court-Sessions Court and committal Court-Judicial Magistrate Budgam lacked territorial jurisdiction. The trial Court-Sessions Court, Budgam after hearing learned Counsel for the parties held that the committal Court as well as the trial Court are not having territorial jurisdiction and accordingly dismissed the complaint for lack of jurisdiction. Feeling aggrieved, complaint/petitioner preferred this revision petition.
4. Complainant have arrayed all the eleven alleged accused in this revision petition as respondents. This Court, after noticing that the cognizance and process was issued only against respondents 1 and 2 deleted respondents 3 to 11 from the array of respondents vide order dated 2.3.2006.
5. Learned Counsel for the petitioner argued that trial Court has fallen in error while holding that the committal Court and the trial Court are not having territorial jurisdiction and developed his argument while taken support from the averments of the complaint read with provisions of Sections 177 and 180 of the Criminal Procedure Code, for short 'the Code'. Further argued that it is a question of fact where the second marriage was performed.
6. Learned Counsel for the respondents/accused argued that the marriage certificate annexed with the complaint disclose that certificate came to be issued at Delhi and second marriage was also performed at Delhi. Thus Courts at Budgam lack jurisdiction to try the case.
7. The following questions of law arises for consideration.
1. What procedure was to be followed by the Court of Sessions-trial Court?
2. Whether a Court which lacks jurisdiction to try the complaint can dismiss the complaint on the ground that it lacks jurisdiction?
3. Whether question of jurisdiction as per averments contained in the complaint is a question of fact?
In order to thrash out these questions it is necessary to notice some of the provisions of the Code hereunder:
8. Section 190 of the Code provides how Magistrate can take cognizance. Section 193 of the Code provides and mandates that Court of Session cannot take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it except and otherwise provided by the Code or by any other law for the time being in force. Chapter XVI of the Code provides how Magistrate can take cognizance of an offence on complaint. Sections 202 and 203 of the Code are not applicable to the case in hand. Section 204 of the Code provides that how Magistrate can issue process. Section 205(d) of the Code provides and mandates that when it appears to the Magistrate that the offence disclosed in the complaint of which cognizance is drawn and process issued is triable by the Court of Session and the case is to be committed to the Court of Session. After case is committed Chapter XXIII of the Code comes into operation. This Chapter is to be read with the provisions contained in Chapter XV. Section 177 of the Code empowers the Court to conduct inquiry and trial within the local limits of whose jurisdiction offence was committed and Chapter XXIII as discussed hereinabove provides the procedure.
9. When the plea of jurisdiction is raised before the Sessions Court-trial Court, it has to keep in view the mandate of Section 177 read with other provisions contained in Chapter XVI of the Code.
10. The crucial question is which is the offence punishable under Section 494, RPC. It is profitable to reproduce Section 494 of the Ranbir Penal Code as under:
Marrying again during lifetime of husband or wife.--Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extent to seven years, and shall also be liable to fine.
Exception--This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within the time, provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.
While going through this provision of law one comes to the inescapable conclusion that performing of second marriage is offence.
This Court in a case titled Sukh Dev v. Smt. Raj Rani reported in SLJ 1986 of J & K page 387, held that offence of bigamy is to be tried by the Court within whose jurisdiction the second marriage was solemnized.
11. This Court also in case titled Nand Lal v. Sudesh Kutnari and Ors. reported in 1989 KLJ page 63 has taken the same view. It is profitable to reproduce para 3 of the said judgment as under:
Appearing for the petitioner, learned Counsel submits that under Section 177, Cr.P.C every offence shall ordinarily be enquired into and tried by a Court within the local limits of whose jurisdiction it was committed and that since the offence under Section 494, RPC was allegedly committed within the jurisdiction of the Court at Mukerian in Punjab, the Chief Judicial Magistrate, Jammu has no jurisdiction to issue process against the petitioner or proceed with the complaint. There appears to be force in this submission.
Question is where the second marriage was contracted in terms of the averments/allegations contained in the complaint read with preliminary statements recorded by the committal Court? It is alleged that second marriage was performed at Budgam. It is profitable to reproduce para No. 6 of the complaint as under:
That in this behalf the accused Nos. 1 and 2 managed their marriage in association and in active support of other accused at Budgam Kashmir, however they managed to get the marriage certificate issued at Delhi in Kashmiri Samati, Kashmiri Bhawan as the accused smell that the complainant might be aware of this illegal act on their part.
The words used that accused have managed to get the marriage certificate cannot be held proof of the fact that second marriage was performed at Delhi. Photostat copy of the certificate (Annexure C) to the Revision Petition no where discloses or indicates that where marriage was performed. Keeping in view the averments contained in the complaint read with preliminary statements recorded it is question of fact. But for the purpose of taking cognizance and issuing process and proceeding ahead in terms of Chapter XXIII read with Chapter XV of the Code, the allegations contained in the complaint and statements recorded are to be taken into consideration. It appears that trial Court has fallen in error while relying on certificate without scanning prima facie the complaint and the preliminary statements recorded. The Apex Court in case Section Nagalingam v. Sivagami reported in : AIR2001SC3576 held that in a bigamy case second marriage is to be proved. It is profitable to reproduce para No. 6 of the judgment hereunder:
The essential ingredients of the offence under Section 494, IPC are (i) the accused must have contracted the second marriage; (ii) whilst the first marriage was subsisting, the accused must have contracted a second mamage; and (iii) both the marriages must be valid in the sense that necessary ceremonies governing the parties must have been performed.
The Apex Court in a case Trisuns Chemical Industry v. Rajesh Agarwal reported in : 1999CriLJ4325 held that the Magistrate can take cognizance even though he had no jurisdiction. The point of jurisdiction can be pressed into service at post cognizance stage and not earlier.
12. The trial Court has to follow the provisions contained in Chapter XXIII and had no powers to dismiss the complaint because at that stage defence/stand of the accused was not to be taken into consideration.
The trial Court has also fallen in error while dismissing the complaint, if trial Court was lacking jurisdiction then how could it dismiss the complaint. It had to return the complaint. Usually trial Court dismisses the complaint when they lack jurisdiction which is illegal, unwarranted and beyond its power/competence and jurisdiction. It had to return the complaint. This view is fortified by the Apex Court judgment in case Y. Abrahama Ajaith v. Inspector of Police, Chennai reported in III (2004) CCR 130 (SC) : AIR 2004 SC 4286. It is profitable to reproduce para 19 of the said judgment as under:
When the aforesaid legal principles are applied, to the factual scenario disclosed by the complainant in the complaint petition, the inevitable conclusion is that no part of cause of action arose in Chennai and, therefore, the concerned Magistrate had no jurisdiction to deal with the matter. The proceedings are quashed. The complaint be returned to respondent No. 2 who, if she so chooses, may file the same in the appropriate Court to be dealt with in accordance with law. The appeal is accordingly allowed.
Mr. Jan, learned Counsel for the petitioner argued that respondents 1 and 2 are living at Budgam, being continuing offence and Courts at Budgam are having the jurisdiction. The argument of Mr. Jan is devoid of any force. Performing/solemnizing of second marriage during the subsistence of first valid marriage is the offence and when a second marriage is contracted offence of bigamy is complete. After performing second marriage, cohabitation should be living under one roof cannot be said to be continuing offence punishable under Section 494, RPC.
13. Keeping in view the above said discussion, the arguments of Mr. Jan that Section 179 of the Code is applicable is devoid of any force. Section 177 of the Code read with the provisions contained in Chapters XVI and XXIII are applicable to the instant case.
14. Having glance of the above discussion, the impugned order is hereby set aside and case is remanded back to the trial Court i.e., Court of Sessions Judge, Budgam with the direction to follow the procedure contained in Chapter XXIII of the Code and pass appropriate orders warranted under law.