Dismissed

Sambhaji Vitthalrao Patil v. Sau. Shobha Sambhaji Patil and Ors.

Bombay HC22 Mar 2018APPLN/6724/2017

Case brief

AI extract

What is this about?

Criminal Application filed by original accused challenging the territorial jurisdiction of the Judicial Magistrate, First Class, Kannad to try an offence under Section 494 IPC. The High Court rejected the challenge, holding that the first wife's alleged permanent residence within Kannad conferred jurisdiction.

What did the court decide?

Criminal Application No. 6724 of 2017 dismissed without costs.

Sambhaji Vitthalrao Patil Vs Sau… — Constitutional and Fundamental Rights | Bombay HC (2018)

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crap6724.17

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD

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CRIMINAL APPLICATION NO. 6724 OF 2017

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Sambhaji s/o Vitthalrao Patil,
age 42 years, occ. Agril.,
R/o Dongaon, Ta. Gangapur,
District Aurangabad… Applicant

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VERSUS

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1] Sau. Shobha w/o Sambhaji Patil, age 43 years, occ. Household, R/o Hatnur, Tal. Kannad, District Aurangabad,

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2] Sonali w/o Sambhaji Patil, age 28 years, occ. Household, R/o Dongaon, Tq. Gangapur, District Aurangabad,

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3] Sushila w/o Vitthalrao Patil, age 68 years, occ. Household, R/o Shillegaon, Tq. Gangapur, District Aurangabad,

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4] Suvarna w/o Pandurang Muley, age 43 years, occ. Household, R/o Dhorkin, Tq. Paithan, District Aurangabad,

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5] Pandurang s/o Namdeo Muley, age 48 years, occ. Agril. & business, R/o as above,

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6] Sanjay s/o Vitthalrao Jadhav, age 45 years, occ. Agril. & business, R/o Besides Bus Stand, Gangapur, Tal.Gangapur, District Aurangabad,

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2crap6724.17

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7] Jyoti @ Suvarna w/o Sanjay Jadhav, age 38 years, occ. Household, R/o as above,

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8] Pushpa @ Laxmibai w/o Ambadas Mohite, age 53 years, occ. Household, R/o Tapargaon, Tal. Kannad, District Aurangabad,

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9] Ambadas s/o Patilba Mohite, age 58 years, occ. Agril., R/o Kannad, Tal. Kannad, District Aurangabad,

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10] Satish s/o Vasantrao Khosare, age 43 years, occ. Service, R/o Galleborgaon, Tal. Khultabad, District Aurangabad,

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11] Rajendra s/o Vitthalrao Patil, age 48 years, occ. Service, R/o Dongaon, Tal. Gangapur, District Aurangabad,

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12] Kalpana w/o Rajendra Patil, age 40 years, occ. Household, R/o Shillegaon, Tq. Gangapur, District Aurangabad,

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13] Appasaheb s/o Jaywantrao Waware, age 53 years, occ. Service, R/o Raghunath Nagar, Tal.Gangapur, District Aurangabad,

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14] Balu s/o Jaywantrao Waware, age 53 years, occ. Service, R/o Divshi Pimpalgaon, Tal.Gangapur, District Aurangabad,

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15] Kalyan s/o Appasaheb Patil, age 63 years, occ. Agril., R/o Ghodegaon, Tal. Gangapur, District Aurangabad,

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3crap6724.17

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16] Vaishali w/o Kalyanrao Patil, age 58 years, occ. Household, R/o as above,

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17]Pappu s/o Jaywantrao Waware,
age 38 years, occ. Agril.
R/o Divhshi Pimpalgaon,
Tal. Gangapur,
District Aurangabad,...Respondents
 (No.1 Complainant)

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.....

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Mr. S.S.Thombare, advocate for the applicant
Mr. Shyam C.Arora, adv. for Resp.no.1
Mr. S.V.Jadhavar, adv. for Resp. nos. 2 to 17

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.....

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CORAM : K.L.WADANE, J.

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DATE OF RESERVING
THE JUDGMENT : 21.3.2018
DATE OF PRONOUNCEMENT
OF THE JUDGMENT : 22.3.2018

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J U D G M E N T :

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Rule. Rule returnable forthwith. With

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the consent of the learned counsel for the
parties, the application is taken up for final
hearing.

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2]Heard Mr. S.S.Thombare, learned counsel

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for the applicant, Mr. S.C.Arora, learned counsel

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for respondent no.1 and Mr. S.V.Jadhavar, learned
counsel for respondent nos. 2 to 17.

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4crap6724.17

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3]Applicant is original accused no.1 and
respondentno.1isoriginalcomplainant.

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Respondent nos. 2 to 17 are original accused.

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4]Respondent no.1 filed private complaint
before the Judicial Magistrate, First Class,
Kannad, alleging that the applicant performed
second marriage with accused no.2 and their
marriage took place at Aurangabad. After

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presentation of the complaint, the complaint was
kept for inquiry under Section 202 of the Criminal
Procedure Code. Accordingly, the verified
statement of respondent no.1 complainant has been
recorded. Thereafter, the Trial Court issued
process against the applicant and respondent nos.
2 to 17 for the offence punishable under Section
494 r/w Section 109 of the Indian Penal Code.
Subsequently, during pendency of trial, applicant
and respondent nos. 2 to 17 have filed an
application and questioned the jurisdiction of the
Judicial Magistrate, First Class, Kannad.
Respondent no.2 herein has filed say on it and has

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specifically contended that the complainant was/is
residing within the territorial jurisdiction of
the Judicial Magistrate, First Class, Kannad.

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5]Learned Magistrate has rejected the
application on the ground that the complainant was
residing at Hatnoor and there is also possibility
that the applicant might have resided at Hatnoor
as well as Aurangabad.

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6]Being aggrieved by the order, dated
27.10.2017, passed by the learned Chief Judicial
Magistrate, Kannad, below Exh. 211 in Regular
Criminal Case No. 39 of 2009, the applicant has
preferred this application.

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7]Mr. Thombare, learned counsel for the

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applicant mostly has concentrated his argument
upon the address of respondent no.1 and has placed
reliance upon the address of respondent no.1
mentioned in Petition No. C-2 of 2014 filed by
respondent no.2 and her son and daughter before

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the Family Court, Aurangabad, wherein the address
of respondent no.1 is mentioned as at Khadkeshwar,
Aurangabad.

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8]Mr. Thombare, learned counsel has,
therefore, argued that at the time of commission
of offence or thereafter, respondent no.1 never
resided at village Hatnoor, and as such, the
learned Magistrate at Kannad has no jurisdiction
to try and entertain the complaint.

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9]As against this, Mr. Arora, learned
counsel for respondent no.1 has argued that
respondent no.1 is permanently resident of village
Hatnoor, Taluka Kannad and same is clear from the
address of respondent no.1 mentioned in the title
clause of Regular Criminal Case No. 39 of 2009,
wherein the address of respondent no.1 is
mentioned as Hatnoor, Taluka Kannad.

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10]In addition to that, the applicant has
relied upon the copy of residence certificate,

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issued by the Sarpanch of village Hatnoor, as well

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as the identity card, issued by Varad Ganesh
Shikshan Prasarak Mandal, Aurangabad, wherein the
address of respondent no.1 is mentioned as
Hatnoor, Taluka Kannad. In addition to that, the
copy of Adhar card and School Leaving certificate
are produced on record, wherein the address of
daughter of respondent no.1 is also mentioned as
Hatonor, Taluka Kannad. So, according to learned
counsel Mr. Arora, there is sufficient evidence
on record to show that respondent no.1 is residing
at the address mentioned in title clause of
complaint itself.

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11]Mr. Thombare, learned counsel has relied
on the observations in the case of Y.Abraham Ajith

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and others vs Inspector of Police, Chennai and

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another, reported in (2004) 8 SCC 100, a case
pertaining to the offence punishable under
Sections 498 and 406 of the Indian Penal Code.
He also relied upon the observations in the case
of Manish Ratan and others vs State of M.P. And

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8crap6724.17

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another, reported in (2007) 1 SCC 262, a case
relating to the demand of dowry. He also cited a
judgment in Criminal Application No. 2768 of 2008,
relating to the offence punishable under Section
498-A of the Indian Penal Code. He further relied
upon the observations in the case of Preeti Gupta
and another vs State of Jharkhand and another,
reported in (2010) 7 SCC 667, a case relating to
the offence punishable under Section 498-A of the
Indian Penal Code.

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12]On perusal of the facts and observations

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of the above cited authorities and looking to the
offences levelled against the accused in the
aforesaid authorities, it appears that their place
of trial is governed under Section 177 of the
Criminal Procedure Code, however, in the present
case, the applicant and respondent nos. 2 to 17
have been charged for the offence punishable under
Section 494 of the Indian Penal Code. Therefore,
the provisions of Section 182(2) of the Criminal
Procedure Code are relevant to determine the

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jurisdiction of the criminal court and place of
trial. The place of trial for the offence
punishable under Section 494 of the Indian Penal
Code is governed under the provisions of Section
182 of the Criminal Procedure Code, which reads as
follows : -

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“ 182. Offences committed by letters,
etc.

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(1)…....….......

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(2) Any offence punishable under
section 494 or section 495 of the
Indian Penal Code (45 of 1860 ) may be
inquired into or tried by a Court
within whose local jurisdiction the
offence was committed or the offender
last resided with his or her spouse by
the first marriage 1 or the wife by the
first marriage has taken up permanent
residence after the commission of the
offence. “

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13]On perusal of the aforesaid provisions, it
appears that there are three places contemplated

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for the trial of offence punishable under Section
494 of the Indian Penal Code i.e. (i) the court
within whose local jurisdiction the offence was
committed, (ii) the offender last resided with his
or her spouse by the first marriage, and by way of

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10crap6724.17

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amendment a third place is contemplated i.e.(iii)
the wife by the first marriage has been taken up
permanent residence after the commission of the
offence. So relying upon the third clause

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relating to the place of offence added by way of
amendment, Mr. Arora, learned counsel has
submitted that the Judicial Magistrate, First
Class at Kannad has jurisdiction to try and
entertain the complaint. In support of his
contention, Mr. Arora, learned counsel, therefore,
has rightly relied upon the observations in the
case of Ravinder Kaur vs Gurmit Singh and others,

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reported in 1985 Cri.L.J. 601. Para 3 thereof
reads thus : -

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“ 3. As it seems to me, the spirit
of Section 182(2) of the Code of
Criminal Procedure is to throw open a
convenient jurisdiction to the offended
spouse. Even while reading evidence for
the purpose, the Courts have to lean
towardsthatangleinfixing
jurisdiction. Though it is true that
the allegations in the complaint and
the evidence of the wife are silent
about her permanent residence within
the territorial jurisdiction of the
Court at Nabha, yet the Courts below
could have drawn the inference from the
mere incidence of her residence within
jurisdiction,tobepermanent

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residence.Anabsolutestrict
construction of the word 'permanent' in
the sequence could lead to many an
undesirable result and an abuse of the
process of the Court. Thus, the
impugned order of the Additional
Sessions Judge is quashed and that of
the Judicial Magistrate 1st Class
supplanted (sustained?) by holding that
the wife had a permanent residence,
after the commission of the offence
complained of, within the territorial
jurisdiction of the Criminal Court at
Nabha. And further that the trial
Magistrate had the jurisdiction to try
the offence. Ordered accordingly. “

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14]Mr. Arora, learned counsel, has also
relied upon the observations in the case of
Tekumalla Muneiah and others vs Chittari Babunuri

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Ammanamma and another, reported in 1991 Cri.L.J.
548, particularly para 4 thereof, which reads
thus : -

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“ 4. As per the above section, it
is clear that the first wife can file a
complaint at the place where she has
taken up a permanent residence after
the commission of the offence, if the
first wife takes up a permanent
residence, she can file a petition in
the Court which has got jurisdiction
over the area in which she resides.
Where the first wife has been residing
permanently in a particular place
earlier to the commission of the
offence, and continues to reside in
that place even after the commission of

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the offence, it can be said that she is
residing in that place even after the
commission of the offence. Therefore,
the Court of that place has got
jurisdiction. Merely because the
section refers to the place where the
first wife takes a permanent residence
after the commission of the offence, it
cannot be said that the wife who was
living at that place earlier to the
commission of the offence and continues
to do so even after the commission of
the offence, is not residing at that
place after the commission of the
offence.Thesectionmustbe
interpreted in accord with the
intention of the Parliament. The
incorporation of the clause "or the
wife by the first marriage has taken up
permanentresidenceafterthe
commission of the offence" in the
section is mainly to facilitate the
first wife to file a complaint at the
place where she permanently resides
after the commission of the offence. I
accordingly see no force in the
submission of the learned Counsel and
hold that the first wife who was living
at a particular place earlier to the
commission of the offence and continues
there must be deemed to have taken
permanent residence at that place after
the commission of the offence in terms
of S. 182 (2) Cr. P.C.. and that the
Court having territorial jurisdiction
over that place, namely Nellore in the
present case, can entertain the
complaint. “

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15]Mr. Arora, learned counsel, further relied
upon the observations in the case of Ganesh

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Harsingh Patil vs State of Maharashtra, reported
in 2002 (1) Mh.L.J. 74, wherein there is
reference to the case reported in the case of
Ravinder Kaur vs Gurmit Singh and others, reported
in 1985 Cri.L.J. 601, and this Court observed as

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follows : -

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“ It can be seen that even in this
case, the alternate plea raised by the
counsel of the wife was opposed on the
ground of absence of pleadings.
However, apart from liberally reading
the averments in the pleadings the
learned Judge has also gone on record
to observe that the spirit of Section
182(2) of the Code is to throw open the
convenient jurisdiction to the offended
spouse i.e. making an alternative venue
available to the offended spouse for
initiating the prosecution. “

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16]On perusal of the aforesaid observations,
it is clear that the pleading has to be liberally
construed so as to determine the place of trial
and the jurisdiction of the Criminal Court. Here,
in the present case, the applicant mentioned her
address as at Hatnoor, Taluka Kannad in the title
clause of the complaint itself. In addition to
that, there is sufficient material on record to
show that respondent no.1 is resident of Hatnoor.

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Furthermore, when the application was moved by the
accused persons questioning the jurisdiction,
respondent no.1 complainant has submitted her say
and has stated that respondent no.1 is residing
within the territorial jurisdiction of Criminal
Court.

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17]In view of above, prima facie, it appears
that the residence of respondent no.1 was/is
within the territorial jurisdiction of Criminal
Court at Kannad. Hence, there is no substance in
the application. And application is liable to be
dismissed. Accordingly, Criminal Application is
dismissed. No costs.

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 (K.L.WADANE, J.)

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dbm

Sambhaji Vitthalrao Patil v. Sau. Shobha Sambhaji Patil and Ors.

Case brief

What is this about?

What did the court decide?

Sambhaji Vitthalrao Patil v. Sau. Shobha Sambhaji Patil and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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