Ganesh and Others vs The State of Maharashtra and Others

I.K. Jain, J.

Rule. Rule made returnable forthwith. Heard by consent.

This application under Section 482 of the Code of Criminal Procedure is filed to transfer Regular Criminal Case No. 144 of 2013 pending before learned Judicial Magistrate, First Class, Jintur to the court of Judicial Magistrate, First Class at Thane.

The facts giving rise to the present application may be stated in brief as under : -

"(i) Respondent No. 2 Akanksha was married to applicant No. 1 Ganesh on 24.5.2011. Applicant No. 2 Devidas and Applicant No. 3 Manorama are father and mother of applicant No. 1 and applicant No. 4 is his sister.

(ii) On 12.3.2013 Akanksha lodged report with Jintur police station stating that she was illtreated on demand of Rs. Fifteen Lacs, TV, Fridge, Two Wheeler and Gold. She was subjected to harassment as her husband Ganesh was suspecting her fidelity. Initially on 14.10.2011, complaint was lodged with police. On 10.2.2012 applicants gave an undertaking of good behaviour and so she rejoined the company of her husband and in-laws.

(iii) It was also stated in the report that on 12.1.2013 she was beaten and driven out of the house on demand of money and the various articles. Since then she started residing with her parents at Jintur. Even thereafter she was abused and threatened to her life on mobile.

(iv) On the basis of first information report lodged by Akanksha, offences under Sections 498-A , 323 , 504 , 506 r/w 34 of the Indian Penal Code came to be registered against applicants. After investigation, charge sheet was filed before the learned Judicial Magistrate, First Class, Jintur. Regular Criminal Case No. 144 of 2013 is pending before the said court."

According to the applicants, in view of the provisions of Section 177 of the Code of Criminal Procedure, the court within whose local jurisdiction offence is committed shall have jurisdiction to try the offence. Learned counsel for the applicants submitted that first information report in its entirety shows that incidents of alleged cruelty have taken place at Bhayander (E), District Thane and not at Jintur. In such situation, court at Jintur would lack territorial jurisdiction to try the criminal case.

In support of the submission applicants placed reliance on the decision of the Hon''ble Apex Court in Y. Abraham Ajith and Others Vs. Inspector of Police, Chennai and Another, and of this court in Shekhar Shivdas Mahire and Others Vs. Sou. Sarikabai Shekhar Mahire and State of Maharashtra, and prayed to transfer the criminal case from Jintur to Thane.

Alternatively it is submitted by the learned counsel for applicants that in case this court is not inclined to transfer the matter then in view of the decision of this court in Manoj Kundanlal Jain and Another Vs. Arti Amar Pande, , exemption from personal appearance during trial be granted to applicant Nos. 2 to 4.

Per contra, learned counsel for Respondent No. 2 vehemently submitted that, even after Respondent No. 2 was driven out of the house, applicants continued to illtreat her on mobile phone by threatening her to life and also by abusing her. Learned counsel submitted that part of cause of action arose within the territorial jurisdiction of Jintur court and it would amount to deprivation of her right to prosecute the case if the matter is transferred from Jintur to Thane.

The core question here is whether allegations made in the first information report would constitute an offence to be tried by Jintur court or court at Thane.

Before adverting to factual matrix it would be essential for the sake of convenience to reproduce the provisions of Sections 178 and 179 of the Code of Criminal Procedure. They read as under : -

"178. Place of inquiry or trial-(a) When it is uncertain in which of several local areas an offence was committed, or

(b) where an offence is committed partly in one local area and partly in another, or

(c) where an offence is a continuing one, and continues to be committed in more local areas than one, or

(d) where it consists of several acts done in different local areas,

it may be inquired into or tried by a Court having jurisdiction over any of such local areas.

Offence triable where act is done or consequence ensues-When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued."

The plain reading of Section 178(c) and Section 179 of the Code of Criminal Procedure makes it clear that where an offence is continuing offence or where a consequence ensuing of an act is also an offence, the courts where such consequence has ensued would also have jurisdiction to try the offence. Similarly, where offence is continuing one and also continued to be committed would also have jurisdiction to try such offence.

In Y. Abraham Ajith and others (supra) the actual nature of act of cruelty or harassment was not mentioned. It does not show in any manner that acts of cruelty had continued at Chennai. In the factual background it was held that since no part of cause of action arose in the maternal home at Chennai but wholly arose at Nagarcoil matrimonial home the concerned Magistrate at Chennai had no jurisdiction to deal with the matter.

Referring to its earlier decision in Smt. Sujata Mukherjee Vs. Prashant Kumar Mukherjee, , the Hon''ble Supreme Court observed thus : -

"11] A similar plea relating to continuance of the offence was examined by this Court in Smt. Sujata Mukherjee Vs. Prashant Kumar Mukherjee, . There the allegations related to commission of alleged offences punishable under Section 498A , 506 and 323 IPC. On the factual background, it was noted that though the dowry demands were made earlier, the husband of the complainant went to the place where complainant was residing and had assaulted her. This Court held in that factual background that clause (c) of Section 178 was attracted. But in the present case the factual position is different and the complainant herself left the house of the husband on 15.4.1997 on account of alleged dowry demands by the husband and his relations. There is thereafter not even a whisper of allegations about any demand of dowry or commission of any act constituting an offence much less at Chennai. That being so, the logic of Section 178(c) of the Code relating to continuance of the offences cannot be applied.

12] The crucial question is whether any part of the cause of action arose within the jurisdiction of the concerned Court. In terms of Section 177 of the Code it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused.

13] While in civil cases, normally the expression "cause of action" is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression "cause of action" is therefore not a stranger to criminal cases.

14] It is settled law that cause of action consists of bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise.

15] The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in "cause of action".

16] The expression "cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts.

17] The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases for sitting; a factual situation that entitles one person to obtain a remedy in court from another person. In Black''s Law Dictionary a "cause of action" is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In "Words and Phrases" (4th Edn.) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf.

18] In Halsbury Laws of England (4th Edn.) it has been stated as follows :

"Cause of action" has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. "Cause of action" has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action". "

In the case on hand, Respondent No. 2 Akanksha has stated in her first information report that even after she was driven out of the house by the applicants she was physically and mentally illtreated. She was abused and threatened to her life on mobile phone. Such consequence had ensued at Jintur while Respondent No. 2 was residing in her maternal home. In this factual scenario disclosed by the complainant in her report, inevitable conclusion is that part of cause of action arose in Jintur, and therefore, the Magistrate concerned has jurisdiction to deal with the matter in view of clause (c) of Section 178 and also under Section 179 of the Code of Criminal Procedure.

So far as exemption from personal appearance to applicant Nos. 2 to 4 is concerned, Criminal Procedure Code takes care of the same and in case contingency arises applicants can very well move the application for exemption from personal appearance before the concerned Magistrate, who can consider the same on it''s own merits.

In this premise, Criminal Application being devoid of merits deserves to be dismissed. Hence the following order.

"(i) Criminal Application No. 1105 of 2015 is dismissed.

(ii) Rule is discharged."