1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(Cr.) No. 47 of 2013 Raj Kumar and others ..........Petitioners Vrs. The State of Jharkhand and others ...... Respondents ------ CORAM: HONBLE THE CHIEF JUSTICE HONBLE MRS. JUSTICE JAYA ROY ------ For the Petitioners: Mr. Sumeet Gadodia, Advocate For the Respondents: Mr. Ram Nivas Roy, G.P.III Mr. S.P. Roy, Adv.(State of Bihar) Mr. K.K. Singh,Adv.(for private respondent) ------ Reportable Dated 18th June, 2013. Heard learned counsel for the parties.
2. This writ petition has been filed under Article 226 of Constitution of India praying that F.I.R. pertaining to Hathauri P.S. Case No. 27/2007, dated 2.7.2007 for the alleged offence punishable under Sections 498-A, 323, 379, 34 of the Indian Penal Code read with Sections 3 and 4 of Dowry Prohibition Act, which is now pending in the Court of Additional Chief Judicial Magistrate, Rosera in the district of Samastipur (Bihar) may be quashed.
3. Office has raised objection with respect to territorial jurisdiction of this Court because of the reason that F.I.R. was lodged in territorial jurisdiction of State of Bihar i.e., within the territorial jurisdiction of Patna High Court and criminal case in pursuance of F.I.R. as P.S. Case No. 27/2007 is also pending in the Court of Additional Chief Judicial Magistrate, Rosera in the district of Samastipur (Bihar) falling within the territorial jurisdiction of State of Bihar”
4. Before proceeding to decide the issue of territorial jurisdiction, it will be appropriate to give the background facts of the case leading to filing of this writ petition and reaching to Division Bench of this Court.
5. The petitioner no.1 and respondent no.3 are the husband and wife. Their marriage was solemnized on 29.06.2001 at village Arga, P.S. Biroul, District Darbhanga (Bihar). The said marriage ultimately turned to be not a happy marriage and, therefore, the petitioner no.1 filed a matrimonial suit no. 99 of 2007 in the Court of Principal Judge, Family Court, Ranchi with the allegation that after marriage the respondent-wife came with the petitioner no.1 to his village at Samstipur and remained there for one week. A daughter was born in march, 2002 out of the said matrimonial wedlock. The respondent was brought to the petitioner's parents house at Ranchi in December, 2002 where she remained from 18.12.2002 to 17.01.2003. Thereafter, allegation of misbehaviour and cruelty were levelled against the respondent-wife with further allegation of her suffering from schizophrenia since before the marriage. In the said divorce petition, the respondent-wife appeared and filed the written statement and ultimately, after trial, the trial Court decreed the divorce suit on 14 th September, 2009. The divorce decree was granted on the ground of cruelty and allegation of mental disorder was rejected by the trial Court. The trial Court while granting the decree for divorce awarded the permanent alimony under Section 25 of Hindu 3 Marriage Act, 1956 of Rs. 3 lakhs to the respondent-wife. Being aggrieved against the part of the decree i.e., grant of permanent alimony to the respondent of Rs. 3 lakhs in the impugned judgment and decree, the petitioner no.1 preferred the First Appeal No. 199 of 2009. The respondent-wife also preferred another First Appeal No. 183 of 2010 to challenge the divorce decree. Both the appeals have already been admitted. When matter came up for consideration before this Court, this Court directed the parties to appear before the Secretary, Jharkhand State Legal Services Authority, Ranchi (JHALSA) and the matter was taken up by the conciliator for consideration for arriving at a settlement between the parties. Before the conciliator, both the parties appeared in person and submitted separate written settlement applications on 16.07.2012 and the conciliator, JHALSA, Ranchi submitted the result of the conciliation between the petitioner no.1 and respondent-wife to this Court in above First Appeal Nos. 199 of 2009 and 183 of 2010 on 17.07.2012. It appears from the conciliator's report that the matter has been settled between the parties and it was agreed by both the parties that petitioner no.1 will make payment of Rs. 5 lacs against permanent alimony to respondent- wife and the first installment of that amount, amounting to Rs. one lac will be paid by the petitioner in the form of bank draft on 20.07.2012 before this Court. It was also agreed that second installment of Rs. 4 lacs will be paid by the petitioner no.1 to respondent-wife within two months or as the date, which may 4 be fixed by the High Court. It was further agreed by both the parties that they would file a joint compromise petition in the criminal proceedings pending in the Court of Additional Chief Judicial Magistrate, Rosera, Samstipur (Bihar). Both parties agreed that criminal case will be disposed of after the full and final payment of the agreed amount of Rs.5 lacs by the petitioner no.1 to respondent-wife. It was further agreed that any other cases, if any, between the parties, will also be disposed of on the basis of compromise. This report came up for consideration before this Court on 24th July, 2012 and on that day, learned counsel for the appellant-husband handed over a demand draft of Rs. one lac to learned counsel for the respondent-wife. So far as remaining amount of Rs.4 lacs is concerned, for that purpose, two months time was granted to the appellant-husband and, therefore, the matter was adjourned. The matter again came up before this Court on 08 th October, 2012 and on that day it was pointed out that criminal case filed under Section 498- A read with Sections 323 and 379/34 I.P.C., which is pending in the State of Bihar, has not yet been withdrawn. Therefore, further time was granted to the respondent-wife to withdraw the criminal case and it was ordered that demand draft, which was ready with the respondent, shall be kept by the learned counsel for the appellant-husband for the purpose of safety of the interest of the respondent. Then, on 27th November, 2012, further time was granted so that the criminal case may be withdrawn by the 5 respondent-wife. On 5th February, 2013, it was informed by the learned counsel for the parties that though application has been submitted by the respondent-wife for withdrawal of the criminal case before the concerned Court in the State of Bihar but no order has been passed by the trial Court.
6. It appears that the trial Court did not pass any order because the trial Court has no jurisdiction to compound or quash the criminal proceedings as the offences are not compoundable under Section 320 Cr. P.C. Finding this situation, the petitioner-husband along with petitioner nos. 2 to 4 has filed this criminal writ petition under Article 226 of Constitution of India for quashing of Hathauri P.S. Case No. 27/2007, dated 2.7.2007 for the alleged offence punishable under Sections 498-A, 323, 379, 34 of the Indian Penal Code read with Sections 3 and 4 of Dowry Prohibition Act, which is now pending in the Court of Additional Chief Judicial Magistrate, Rosera in the district of Samastipur (Bihar). Learned Single Judge, in view of pendency of matrimonial case i.e., First Appeal Nos. 199 of 2009 and 183 of 2010, ordered for placing this criminal writ petition before the Division Bench. Hence, this criminal writ petition is before us.
7. It also appears from the facts of the case that so far territorial jurisdiction of the trial Court which passed the divorce decree in matrimonial case no 99 of 2007 along with the payment of permanent alimony has not been questioned by the respondent-wife and the divorce decree was granted by the 6 trial Court in the State of Jharkhand. Undisputedly, F.I.R. was lodged in Hathauri police station in the State of Bihar and thereupon the criminal case has been registered as Hathauri P.S. Case no. 27/2007. The cause of action for filing the said F.I.R. and for the trial of the criminal case may have accrued in territorial jurisdiction of said police station consequential to under the territorial jurisdiction of the Court of Additional Chief Judicial Magistrate, Rosera in the district of Samastipur (Bihar) within the territorial jurisdiction of Patna High Court and question for consideration before us is that, in the facts and circumstances of this case, whether Jharkhand High Court has jurisdiction to quash the criminal proceedings pending in the court of Additional Chief Judicial Magistrate, Rosera, District Samastipur in the State of Bihar? 8. According to learned counsel, Shri Sumeet Gadodia, appearing for the appellant-husband, this Court has jurisdiction to entertain the petition. Learned Counsel, Shri Sumeet Gadodia, submitted that a bundle of facts constitutes cause of action which are necessarily to be placed before the Court for obtaining a relief by a party and events culminating into settlement between the parties occurred in the State of Jharkhand. Even if, assuming for the shake of argument, the total cause of action for the lodging of criminal case accrued in the State of Bihar but so far as cause of action for quashing of F.I.R. and criminal proceeding certainly occurred only within the territorial jurisdiction of State of Jharkhand where the 7 parties before divorce resided together and thereafter, the divorce petition was filed by the petitioner no.1 within territorial jurisdiction of State of Jharkhand which was duly decreed by the trial Court in the State of Jharkhand and thereafter, the petitioner no.1 preferred the First Appeal before this Court which has been admitted. In the First Appeal, this Court referred the matter to the Secretary, JHALSA, Ranchi for exploring the possibility of settlement between the parties and there both the parties agreed to settle the matter and they arrived at a settlement within the territorial jurisdiction in the State of Jharkhand and particularly, in the city Ranchi itself. This settlement was acted upon by both the parties within the State of Jharkhand which has duly been recorded by the Court in the First Appeal and petitioner no.1 handed over a draft of Rs. one lac to the respondent-wife in the State of Jharkhand which has been encashed by the respondent-wife. The respondent-wife willing to settle the matter and further acted upon on the settlement and submitted an application before the Court of Additional Chief Judicial Magistrate, Rosera in the district of Samastipur(Bihar) so as to take benefit of settlement arrived at in Ranchi, State of Jharkhand. Because of the legal bar against the said Court i.e., Additional Chief Judicial Magistrate, Rosera, the said Court was not in a position to quash F.I.R. or drop the criminal proceedings and, therefore, kept the application pending before the Court as it is, without any order. Therefore, cause of action for quashing of the 8 criminal proceeding accrued within the State of Jharkhand and particularly, in the city of Ranchi itself.
9. Learned counsel for the petitioner no.1 submitted that issue of cause of action with reference to Article 226 of Constitution of India as it was and after insertion of Clause (1-A) under Article 226 and subsequently renumbered as Article 226(2) of Constitution of India has been considered by the Supreme Court in the case of Navinchandra N. Majithia Vrs. State of Maharashtra and others reported in (2000) 7 SCC 64.. Hon'ble Supreme Court after considering various judgments in Navinchandra N. Majithia's case held, that it is well settled that cause of action means that bundle of facts which the petitioner must prove, if traversed to entitle him to a judgment in his favour. Therefore, the writ petitioner will have to prove the settlement between the parties for getting the relief for quashing of criminal proceedings and those events occurred only in the territorial jurisdiction of this High Court. Even in the case of Navinchandra N. Majithia (Supra) also, it has been held by Hon'ble Supreme Court that F.I.R. was registered in a particular State is not the sole criterion to decide that no cause of action has arisen even partly within the territorial limits of jurisdiction of another State. Nor can it be said that any person can create a fake cause of action or even concoct one by simply jutting in to the territorial limits of another State or by making a sojourn or even a permanent residence therein. The place of residence of the person moving 9 a High Court is not the criterion to determine the contours of the cause of action in that particular writ petition. So, the cause of action is required to be found out from the bundle of facts and from the bundle of facts, it is essentially required to be proved for getting relief.
10. Learned counsel for the petitioner further submitted that in the most recent judgment of Hon'ble Supreme Court delivered in the case of Jitendra Raghuvanshi and others vrs. Babita Raghuvanshi and another reported in (2013) 4 SCC 58.Hon'ble Supreme Court in matrimonial disputes held, that it is the duty of the Courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Hon'ble Supreme Court also held that for the purpose of securing ends of justice, Section 320 of Cr. P.C. would not be a bar to the exercise of power of quashing of FIR,, complaint or the subsequent criminal proceedings.
11. Article 226 (2) of Constitution of India provides that even authority situated outside the territorial jurisdiction of High court but cause of action or part of the cause of action accrued within jurisdiction of High Court, then such High Court can exercise jurisdiction over the authority situated outside the territorial jurisdiction of that Court or any other State. In the case of B.S. Joshi and others Vrs. State of Haryana and another reported in (2003) 4 SCC 67.Hon'ble Supreme Court held, that the High Court can exercise its inherent power 10 and quash the criminal proceedings or FIR or complaint in appropriate cases in order to meet the ends of justice and and Section 320 of the Code does not limit or affect the powers of the High Court under Section 482 of the Code.
12. Learned counsel for the respondent-wife supported the contentions of the learned counsel for the partitioner and submitted that dispute has been settled between the parties and that too long back on 16.7.2012 and both the parties submitted written application before conciliator, JHALSA, Ranchi for settling the matter and they have agreed to the terms and conditions recorded by the conciliator in its minutes/report, dated 17.07.2012. The respondent-wife already received the payment of Rs. one lac and because of pendency of criminal case, she is not getting the rest permanent alimony of Rs.4 lacs even when the payment is ready with the learned counsel for the petitioner no.1 for payment to the respondent-wife.
13. We have considered the submission of learned counsel for the parties and perused the facts of those considered judgments relied upon by learned counsel for the petitioner. Article 226(2) of Constitution of India is as under:
226. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, 11 notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
14. Article 226 has been considered by Hon'ble Supreme Court in the case of Navinchandra N. Majithia (supra) as it was before insertion of Clause (2) of Article 226 of Constitution of India and after insertion of Clause (2) under Article 226. It appears from the said judgment that because of judgment of Constitution Bench of Hon'ble Supreme Court in the case of Election Commission Vrs. Saka Venkata Subba Rao reported in AIR 195.SC 210.it became necessary to bring 15th amendment to the Constitution by which Clause (1-A) was added to Article 226 of Constitution of India and that Clause subsequently numbered as sub-clause (2) of Constitution of India by its 42nd amendment. Hon'ble Supreme Court held, that object of inserting Clause 2 in Article 226 was to supersede the decision of the Supreme Court in the case of Election Commission V. Saka Venkata Subba Rao reported in AIR 195.SC 21.. In Navinchandra N. Majithia's case Hon'ble Supreme Court held, that in view of Clause (2) of Article 226, the power conferred on the High Courts in relation to the territories within which the cause of action, wholly or in part, arises and it is no matter that the seat of the authority concerned is outside the territorial limits of the jurisdiction of that High Court. Hon'ble Supreme Court held that the 12 amendment is, thus, aimed at widening the width of the area for reaching the writs issued by different High Courts.
15. The cause of action is a bundle of facts which the petitioner must prove, if traversed to entitle him to a judgment in his favour is a well settled law. At this juncture, it will appropriate to mention here that in a case where relief is sought against any Government or authority or any party, of which seat is not within the territory of High Court or the person is not residing within the territory of the High Court, then in that situation, if cause of action wholly or in part, accrued in jurisdiction of High Court, the said High Court may exercise its jurisdiction irrespective of fact that seat of such Government or authority or the residence of such person is not within the territory of High Court. This is very wide conferment of jurisdiction to recognize the Court's jurisdiction in whose jurisdiction case of action or part of cause of action accrued irrespective of place of residence. Therefore, if any person is seeking remedy against any Government or authority having its seat outside the territorial jurisdiction of High Court but cause of action arose in the city over which High Court has jurisdiction then in that situation, the writ can be maintained in the High Court where the seat of such Government or authority is not there. Meaning thereby, the stay and residence of respondent is not relevant for the purpose of finding out the jurisdiction of the High Court under Article 226 (2) of 13 Constitution of India but High Court's jurisdiction is by virtue of accrual of cause of action, wholly or in part.
16. In this case, the petitioner is seeking relief, in fact, not against the police station or the Court situated within the territorial jurisdiction of State of Bihar though in a writ jurisdiction, the criminal proceeding is sought to be quashed which has been initiated in the said police station and pending in the Court of Additional Chief Judicial Magistrate, Rosera in the district of Samastipur(Bihar) within jurisdiction of State of Bihar and if the proceedings will be quashed, that will be the proceedings initiated by respondent-wife who is only concerned person and can be aggrieved against that quashing. In the present case, the cause of action is the bundle of facts and which are between the two parties and not the fact relating or concerning to the police station or the Court. Therefore, the petitioner in this case is seeking to establish that there is a compromise between the parties in a matrimonial dispute and because of that compromise, the criminal case filed by the respondent be quashed. The respondent-wife is not only not challenging the jurisdiction of this Court but she had taken part in the conciliation proceeding within the territorial jurisdiction of this Court, and in fact beneficiary if criminal proceeding which she initiated and she cannot withdraw is quashed. Then in that situation, facts leading to and fact of compromise between the parties took place only in the Jharkhand State and have constituted cause of action for quashing the criminal 14 proceedings. If we take a strict technical view, for quashing of criminal case, no event or fact leading to compromise occurred in the State of Bihar or within the territory where the criminal case is pending, then in that situation, Article 226 (2) of Constitution of India empowers this Court to pass appropriate order which may have its effect in the territory of State of Bihar as the Court in question is situated in the State of Bihar. In the case of B.S. Joshi and others (Supra) in para-14, it has been specifically held by Hon'ble Supreme Court, which is as under :
14. There is no doubt that the object of introducing Chapter XX-A containing Section 498-A in the Indian Penal Code was to prevent torture to a woman by her husband or by relatives of her husband. Section 498-A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hypertechnical view would be counterproductive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the 15 proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XX-A of the Indian Penal Code.
17. In view of Judgment of Hon'ble Supreme Court, it is clear that no hypertechnical view can be entertained which would be counterproductive and would act against interests of women and against the object for which provision of Section 498- A has been added in Indian Penal Code. Hon'ble Supreme Court in the recent judgment of Jitendra Raghuvanshi and others (Supra) has considered the earlier several judgment and in para- 15 and 16 held as under:
15. In our view, it is the duty of the courts to encourage genuine settlements of matrimonial disputes, particularly, when the same are on considerable increase. Even if the offences are non- compoundable, if they relate to matrimonial disputes and the Court is satisfied that the parties have settled the same amicably and without any pressure, we hold that for the purpose of securing ends of justice, Section 320 of the Code would not be a bar to the exercise of power of quashing of FIR, complaint or the subsequent criminal proceedings.
16. There has been an outburst of matrimonial disputes in recent times. The institution of marriage occupies an 16 important place and it has an important role to play in the society. Therefore, every effort should be made in the interest of the individuals in order to enable them to settle down in life and live peacefully. If the parties ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law, in order to do complete justice in the matrimonial matters, the courts should be less hesitant in exercising their extraordinary jurisdiction. It is trite to state that the power under Section 482 should be exercised sparingly and with circumspection only when the Court is convinced, on the basis of material on record, that allowing the proceedings to continue would be an abuse of process of court or that the ends of justice require that the proceedings ought to be quashed. We also make it clear that exercise of such power would depend upon the facts and circumstances of each case and it has to be exercised in appropriate cases in order to do real and substantial justice for the administration of which alone the courts exist. It is the duty of the courts to encourage genuine settlements of matrimonial disputes and Section 482 of the Code enables the High Court and Article 142 of the Constitution enables this Court to pass such orders”
18. In view of para-16 of judgment of the case of Jitendra Raguuvanshi and others(Supra) the courts duty while exercising jurisdiction under Article 226 in the matter of quashing of criminal case is that before passing such order the Court should satisfy itself fully from entire facts and circumstances and materials on record that allowing the proceeding to continue would be an abuse of process of Court or that the end of justice require that the proceedings ought to be quashed.
19. Therefore, in view of the above discussions, we are of the considered opinion that in this case, cause of action for quashing of criminal proceedings arose in the State of Jharkhand giving rise to cause of action for filing the petition under Article 226 to the petitioner and the said quashing is in the interest of both the parties and would definite it is in the interest of justice that the dispute including the quashing of criminal case will entitle respondent-wife and the petitioner to take the benefit of settlement including by getting alimony as agreed by the parties.
20. At this juncture, we may further mention here that the parties settled the dispute on 16.7.2012 and the settlement was acted upon and the respondent-wife took the benefit of the settlement by receiving Rs. one lac against the permanent alimony dues. Then, the respondent-wife moved an application before the Court of Additional Chief Judicial Magistrate, Rosera in the district of Samastipur(Bihar) on 27.11.2012. Today also, 18 the respondent-wife is willing to settle the matter totally and, therefore, this Court is satisfied that it is bonafide settlement between the parties and sufficient time was available to the respondent-wife to change her mind, if there was no willingness to settle the matter. Therefore, in that situation, we are of the considered opinion that the proceedings initiated after lodging of F.I.R. pertaining to Hathauri P.S. Case No. 27/2007, dated 2.7.2007 for the alleged offence punishable under Sections 498-A, 323, 379, 34 of the Indian Penal Code read with Sections 3 and 4 of Dowry Prohibition Act, which is now pending in the Court of Additional Chief Judicial Magistrate, Rosera in the district of Samastipur (Bihar) is liable to be quashed. Hence, this writ petition is allowed overruling the objection of territorial jurisdiction and the proceedings initiated after lodging of F.I.R. pertaining to Hathauri P.S. Case No. 27/2007, dated 2.7.2007 for the alleged offence punishable under Sections 498-A, 323, 379, 34 of the Indian Penal Code read with Sections 3 and 4 of Dowry Prohibition Act stands quashed.
21. A copy of this order shall be submitted by both the parties separately to the Court of Additional Chief Judicial Magistrate, Rosera in the district of Samastipur (Bihar) so that consequential order may be passed in that proceedings. (Prakash Tatia,C.J.) (Jaya Roy, J.) Sudhir