Shiv Kumar vs State of U.P. and Another

S.C. Jain, J.—The facts giving rise to this writ petition are that one Smt. Neelam Rani filed a criminal complaint being Criminal Case No. 2754 of 1992 (Smt. Neelam Rat v. Shiv Kumar and Ors.) u/s 406. I.P.C. on 14.9.1992 alleging therein that she was married with Shiv Kumar, the Petitioner herein, on 29.11.1989 as per Hindu rites and ceremonies at Meerut where she was residing with her parents. After marriage she went to Delhi where her husband was residing, but on account of the impotency of the husband she had to obtain divorce by filing a divorce petition at Meerut. where the marriage had taken place. While filing the complaint she also mentioned the list of articles given as Stridhan at the time of marriage. The further allegations in the complaint is that she sent a notice dated 30.7.1992 but the service of the notice was avoided by the husband-Petitioner. Again on 11.8.1992 a notice of demand was sent. On 17.8.1992 a notice was sent under postal certificate. The reply of the notice was received from the Advocate of her husband on 24.8.1992 but her Stridhan was not returned to her. On these allegations it was requested that action u/s 406, I.P.C. be taken against the accused person mentioned in this complaint for criminal breach of trust.

After recording the statement of the complainant u/s 200, Code of Criminal Procedure and also recording the statement u/s 202, Code of Criminal Procedure the Magistrate concerned summoned the accused persons u/s 406, I.P.C.

Against this order the accused persons challenged the territorial jurisdiction of the Courts at Meerut by filing an application. The complainant contested that application and the Magistrate in exercise of his powers u/s 311, Code of Criminal Procedure recorded the statement of Mohan Lal, brother of the complainant, who was present in Court and after going through the complaint and the allegations made therein, the statement of the complainant''s brother and other material on record dismissed the application filed by the accused persons and held that the Courts at Meerut had territorial jurisdiction to try the case. A revision filed against that order before the learned Sessions Judge, Meerut was heard and dismissed by the XI Addl. Sessions Judge, Meerut by his detailed order dated 9.5.1995.

Not satisfied, the orders of the Courts below have been challenged in this writ petition under Article 226 of the Constitution of India.

The learned Counsel for the Petitioner submits that the action of the Magistrate in summoning the witness, Mohan Lal u/s 311, Code of Criminal Procedure at that stage when the Court had not taken cognizance u/s 204, Code of Criminal Procedure is illegal. Summoning a witness for the purposes of grabing jurisdiction is contrary to the provisions of law. The provisions of Section 311, Code of Criminal Procedure can only be used for just decision of a case and not for the help of the Court for grabing jurisdiction. According to the learned Counsel the provisions of Section 311, Code of Criminal Procedure cannot be exercised before charge. He relied upon several decisions reported in Jamatraj Kewalji Govani Vs. The State of Maharashtra, . According to him the provisions of Section 311, Code of Criminal Procedure cannot be exercised to fill up the lacuna in the prosecution case and on this point he has put reliance on a decision reported in State of Mysore Vs. A.G. Ramaswamy, . According to the learned Counsel u/s 311, Code of Criminal Procedure the accused has right of rebuttal and on this point he has relied upon a decision reported in AIR 1978 SC 1558.

As far as the legal proposition is concerned the point of territorial jurisdiction has to be decided as a preliminary point.

The criteria for ascertaining territorial jurisdiction is the allegation made in the complaint. Sub-section (4) of Section 181, Code of Criminal Procedure provides that any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is subject of the offence was received or retained, or was required to be returned or accounted for.

As per the allegations made in the complaint the marriage took place at Meerut. The Respondent No. 2 obtained a decree of divorce at Meerut. She was residing at Meerut with her parents from where she sent notice for return of the dowry. The Magistrate concerned after perusing the statements of Mohan Lal, who was summoned u/s 311, Code of Criminal Procedure, the complaint and other documents available on record came to the conclusion that the Courts at Meerut had jurisdiction to try this complaint u/s 406, I.P.C.

The order passed by the Magistrate shows that the accused have been summoned u/s 406, I.P.C. Admittedly the marriage took place at Meerut. The property that was given at the time of marriage must have been given at Meerut where the marriage was performed. The averments made in the complaint show that her stridhan has not been returned to her though she made demand by sending notices. An offence of misappropriation can be tried at a place where the property is received u/s 181(4), Code of Criminal Procedure. There cannot be any objection to the trial of the case at Meerut. I find support from the decision of this Court made in the case Vijai Ratan Sharma and Others Vs. State of U.P. and Another, , where it has been held that offence of mis-appropriation can be tried at that place where the property is received in accordance with Section 181(4), Code of Criminal Procedure.

The arguments of the learned Counsel for the Petitioner regarding the misuse of Section 311, Code of Criminal Procedure by the Court does not help him in the present circumstances of the case. Section 311, Code of Criminal Procedure enables the Court at any stage of any inquiry, trial or other proceeding under this Code to summon any person as a witness. The power has been conferred to satisfy the quest of the Court in order to do justice between the parties. Even without examining this witness. Mohan Lal u/s 311, Code of Criminal Procedure there was sufficient material on record. i.e. averments in the complaint and other admitted facts on which it could be held that the Courts at Meerut had jurisdiction to try the complaint u/s 406, I.P.C.

Under these circumstances, this writ petition is dismissed in limine.

However, the Petitioner may take recourse under the provision of Section 204, Code of Criminal Procedure by taking up in his defence regarding maintainability of the complaint u/s 406, I.P.C. as provided under the law. An order of summoning is in the shape of interlocutory order and no revision or writ lies against the summoning order. The proper course is to avail of the remedy u/s 204, Code of Criminal Procedure by moving separately before the Court concerned, if so advised.