489a place of incident
PARTHA SARKAR
(Querist) 03 January 2012
This query is : Resolved
Kindly advise can a wife file case u/s 498A IPC at her own residential place despite cause of action took placre at her matrimonail home?
Is there any judgment available case has been quashed?
Raj Kumar Makkad
(Expert) 04 January 2012
Supreme Court of India had considered the question of registration of FIR at length and
taking note of different Sections of Cr.P.C. observed that the territorial jurisdiction was
prescribed under Sub-Section 1 of Section 156 Cr.P.C. to the extent that a Police Officer can investigate any cognisable case, which a Court having jurisdiction over the local area within the limits of said Police Station would have power to enquire into or try under the provisions of Chapter XIII. However, Sub Section (2) of Section 156 Cr.P.C. makes it clear that proceedings of Police Officer in any case cannot be called in question on the ground that the case was one which such Officer was not empowered to investigate.
The Supreme Court further observed that Section 170 Cr.P.C. specifically provides that if, upon investigation, it appears to the Officers In-charge of the Police Station that crime was not committed within the territorial jurisdiction of Police Station, that FIR can be forwarded tothe Police Stating having jurisdiction over the area in which crime is committed.
The law is that police can register an FIR of commission of a cognisable crime
but after registration of FIR, if on scrutiny or investigation, it is found that crime was not committed within the jurisdiction of that Police Station but was committed within the jurisdiction of some other Police Station, the FIR should be transferred to that Police Station.
However, if at the time of registration of FIR itself, it is apparent on the face of it that crime was committed outside the jurisdiction of the Police Station, the Police after registration of FIR should transfer the FIR to that Police Station for investigation.
Normally a 'Zero' FIR is registered by Police in such cases and after registration of
FIR, the FIR is transferred to the concerned Police Station.
Jurisdiction Case No. 1
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P (Crl.) No.1266 of 2007
Date of Decision: 10.10.2007
Sonu and others versus Govt. of NCT of Delhi and another
JUSTICE SHIV NARAYAN DHINGRA
JUDGEMENT
FIR was filed by the complainant under sections 406/498A at PS
Malviya Nagar, while perusal of FIR would show that no
offence was committed within the jurisdiction of NCT of
Delhi. Respondent-wife alleged that petitioners subjected
her to cruelty at matrimonial home in Patiala (Punjab).
Marriage in this case was solemnised in U.P. Neither the
marriage was solemnised in Delhi nor the offence was committed
in Delhi. The registration of FIR in Delhi at PS Malviya Nagar
was contrary to the provisions of sections 177 and 181 (4) of
the Cr.P.C.
No where in the FIR she stated that offence was committed in Delhi.
She filed the FIR with PS Malviya Nagar alleging that she was now
living at Hauz Rani within the jurisdiction of PS Malviya Nagar.
In (1999) 8 SCC 728 Satvinder Kaur vs. State (Govt. of NCT of Delhi)
and another, the question of registration and investigation of an FIR
lodged at the place of residence was dealt with and considered by the
Supreme Court and the Supreme Court made the following observations: -
" In our view, the submission made by the learned counsel for the appellant requires to be accepted".
"The limited question is whether the High Court was justified in quashing the FIR on the ground that
Delhi Police Station did not have territorial jurisdiction to investigate the offence".
"From the discussion made by the learned Judge, it appears that learned Judge has considered the provisions applicable for criminal trial".
The High Court arrived at the conclusion by appreciating the allegations made by the parties that the
SHO, Police Station Paschim Vihar, New Delhi was not having territorial jurisdiction to entertain and investigate the FIR lodged by the appellant because the alleged dowry items were entrusted to the respondent at Patiala and that the alleged cause of action for the offence punishable under Section
498-A IPC arose at Patiala. In our view, the findings given by the High Court are,on the face of it, illegal
and erroneous because:
(a) The SHO has statutory authority under Section 156 of the Criminal Procedure Code to investigate any
cognizable case for which an FIR is lodged.
(b) At the stage of investigation, there is no question of interference under Section 482 of the Criminal
Procedure Code on the ground that the investigating officer has no territorial jurisdiction.
(c) After investigation is over, if the investigating officer arrives at the conclusion that the cause of action
for lodging the FIR has not arisen within his territorial jurisdiction, then he is required
to submit a report accordingly under section 170 of the Criminal
Procedure Code and to forward the case to the Magistrate empowered to take cognizance of the offence.
This would be clear from the following discussion. Section 156 of the Criminal Procedure Code empowers the police officer to investigate any cognizable offence. It reads as under :
Section 156 --------Police officer's power to investigate cognizable case ?
(1) any officer in charge of a police station may, without the order
of a Magistrate, investigate any cognizable case which a court
having jurisdiction over the local area within the limits of such
station would have power to enquire into or try under the provisions
of Chapter XIII.
(2) No proceedings of a police officer in any such case shall at any
stage be called in question on the ground that the case was one
which such officer was not empowered under this section to
investigate.
(3) Any Magistrate empowered under Section 190 may order such an
investigation as above-mentioned. ?
It is true that territorial jurisdiction also is prescribed under sub-section (1) to the extent that the officer
can investigate any cognizable case which a court having jurisdiction over the local area within the limits of such police station would have power to enquire into or try under the provisions of Chapter XIII.
However, sub-section (2) makes the position clear by providing that no proceedings of the police officer in any such case shall at any stage be called in question on the ground that the case was one which such
officer was not empowered to investigate. After investigation is completed, the result of such investigation is required to be submitted as provided under Sections 168,169 and 170. Section 170 specifically provides that is, upon an investigation, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a magistrate, such officer shall forward the accused under custody to a Magistrate empowered to take
cognizance of the offence upon a police report and to try the accused or commit for trial. Further, if the investigating officer arrives at the conclusion that the crime was not committed within the territorial jurisdiction of the police station, then FIR can be forwarded to the police station having jurisdiction over the area in which the crime is committed. But this would not mean that in a case which required investigation, the police officer can refuse to record the FIR and/or
investigate it.
The law laid down by the Supreme Court is that in the event of the investigating officer arriving at a conclusion that crime was not committed within his jurisdiction, the FIR should be forwarded
to the PS having the jurisdiction.
However, the police officer cannot refuse to register the FIR in respect of a crime which requires
investigation.
In the present case there is no allegation made in the FIR itself that a part of the crime was committed
in Delhi. The parties never lived in Delhi. Marriage took place in U.P. Matrimonial home was in Patiala
and alleged crime of dowry demand was allegedly committed in Patiala (Punjab).
No investigation is needed to come to the conclusion that no part of crime was committed in Delhi and
the alleged crime was committed either in U.P. or Patiala. PS Malviya Nagar even if registered the FIR should have transferred it to the Police Station of Patiala where the offence was committed.
Normally in all such cases, zero FIR is registered at a Police Station at Delhi and FIR is transferred to the concerned police station where crime is committed. Though there is no illegality in registration of
FIR, but retaining of this FIR with PS Malviya Nagar raises doubt about bonafides of SHO.
SHO Police Station Malviya Nagar,New Delhi is directed to transfer the FIR in question to the concerned Police Station at Patiala (Punjab) where offence was committed.
************ ******
Jurisdiction Case No. 2
Y. Abraham Ajith and others Versus Inspector of Police CHENNAI (MADRAS)
and others.
MANU/SC/0635/ 2004 Criminal appeal No. 904 0f 2004
The complaint was Filed in the court of xviii Metropolitan Magistrate,
SAIDAPET CHENNAI under Section 498A and 406 of Indian Penal Code and Section 4 of Dowry Prohibition Act 1961.
The accused in the complaint filed application under Section 482 of Cr. P. Code
before CHENNAI High Court, Saying that:"The Saidapet Chennai" magistrate had no
Jurisdiction even to entertain the complaint, even if the allegations contained in the complaint their in are accepted in Toto. According to the applicants, no part of the cause of action arose within the jurisdiction of the
SAIDAPET CHENNAI(MADRAS) JURISDICTION.
The petitioner's case was that, "All the allegations made in the complaint
took place at Nagarcoil (Madras state)therefore the courts in Chennai
(Madras state) did not have Jurisdiction to deal with the matter". The
approach of Chennai High Court in this matter was also found erroneous by supreme court.
The Judgement by Justices Arijit Pasayat and C.K.Thakkar Judges at Supreme Court of India said:
A bare reading of the complaint would go to show that no part of the cause of action arose within the Jurisdiction of the court where the complaint was filed.Therefore the entire proceedings had no foundation.
No part of cause of action arose in CHENNAI(Madras) and therefore CHENNAI Court
had no Jurisdiction to deal with the matter.
************ ********
Jurisdiction Case No.. 3
In the High Court of Andhra Pardesh at Hyderabad.
T. Venkateshwarlu and others Versus State of A.P.and others.
WP No. 9546 of 1996 Decided on 27.07.1998.
Under section 188 of criminal procedure code 1973
(a)The courts can not take cognisance of any
of the offences without a previous approval
of the central government Ministry of
External affairs.
(b) The accused are all US citizens
(c) There is no evidence that any attempt
was made to obtain previous approval
of government of India.
(d) There is also no evidence that higher
authorities of government of Maharashtra
were informed about arrest of Foreign
national by police.
(e) Even US consulate was not informed about
arrest of US citizens as required by Warsha
convention.
************ **
Jurisdiction Case No 4
In the High Court of Andhra Pardesh at Hyderabad.
T. Venkateshwarlu and others Versus State of A.P.and others.
WP No. 9546 of 1996 Decided on 27.07.1998.
PARA...19
Offence alleged in complaint is cruelty under section 498A IPC.
The complaint indicated the alleged cruelty by accused at Sweden and Nellore.
At no point of time complainant and accused were residents of Hyderabad.
Allegations of Cruelty are in SWEDEN up to 1992 and in Nellore in 1993.
Therefore none of the acts of cruelty are committed within the Jurisdiction of MAHILA COURT AT HYDERABAD. Therefore the mahila court has no Jurisdiction to try the offences as the complaint does not disclose prime facie offence within
the Jurisdiction of the Mahila Court at Hyderabad.
************ **
Jurisdiction Case No. 5
Satvinder Kaur vs State (Govt. of NCT of Delhi)*
Facts
The appellant was married with respondent at Delhi on 09.12.1990.
The appellant was thrown out of matrimonial home in Patiala on 19.01.1992. Complaint was lodged by her at Kotwali P.S., Patiala on the same day making various allegations of torture and dowry demand against her husband and his family members.
Thereafter she came to live with her parents at Delhi.
A complaint was lodged against her husband in the Women’s Cell, Delhi on 30.04.1992. After preliminary investigations, the impugned F.I.R. under sections 406 and 498 IPC was registered at P.S. Paschim Vihar, New Delhi, on 23.01.1993 for the alleged occurrence at Patiala.
Thereafter, the respondent filed petition under section 482 Cr.P.C for quashing the F.I.R. in Delhi High Court. The High Court arrived at the conclusion that the SHO P.S. Paschim Vihar was not having territorial jurisdiction to entertain and investigate, the F.I.R. lodged by the appellant because the the alleged caused of action for the offence punishable under Section 498-A Indian Penal Code arose at Patiala
************ ********* ****
Jurisdiction case No.6
LUCKNOW HIGH COURT
Judgement in February 2006.
A division bench of the high court comprising Justice Bhanwar Singh and
Justice JM Paliwal quashed the entire criminal proceedings pending against
an assistant income tax commissioner, Sanjiv Yadav, for dowry harassment.
The bench passed the order while allowing a writ petition filed by
Dharam Raj Yadav (Sanjiv's father) and others for quashing the
charge-sheet while treating it to be a petition under Section 482 Cr PC.
It may be recalled that the proceedings against Sanjiv was initiated on the
basis of an FIR lodged by his wife Dipti Yadav on January 11, 2005 alleging
harassment for dowry.
After going through the material on record, the bench observed that the investigating
officer had acted in a malafide manner and had manipulated things to mislead the court
of the additional chief judicial magistrate as well as this court.
The bench further remarked that the additional chief judicial magistrate had
also acted without application of mind in taking cognizance of the matter as
the Lucknow court had no jurisdiction to deal with the offence alleged to
have been committed in Jaunpur, Sultanpur, Gorakhpur etc.
Jurisdiction Case No. 7
IN THE HIGH COURT OF DELHI AT NEW DELHI
WP(Crl.)No. 415/04
Niraj Trivedi Vs State of Bihar and Ors.
WP(Crl.)No. 235/04
Parimal Trivedi versus State of Bihar and Ors.
Date of Decision: 04.01.2008
Justice S. N. Dhingra transferred the case from BIHAR Police
Station to the police station having the jurisdiction in Delhi.
He directed the Director-General of Bihar Police to send the
case file to the Delhi police for further action.
The parents of the victim’s husband stayed in Delhi and the
marriage was also solemnised here in June 1998.
The couple had stayed in Delhi for some time after the marriage
before they migrated to the US.
The victim’s father had filed the case at Digha BIHAR against his
son-in-law, his mother and the sister-in-law on the ground that the
son-in-law had once visited the town and asked for some money
from him for booking air tickets to the US for his daughter.
He further alleged that his son-in-law, his mother and sister-in-law tortured his daughter mentally and physically for dowry. She was tortured in Delhi as well as in the US, the victim’s father alleged.
Transferring the case to the Delhi police, Mr. Justice Dhingra said
that to lodge a case at a place where the victim resides was against
the established procedure. Cases are registered only where crimes
are committed, he clarified.
Juridiction Case No. 8
CASE NO.: Appeal (crl.) 587 of 2008
PETITIONER: Bhura Ram and Ors
RESPONDENT: State of Rajasthan & Anr
DATE OF JUDGMENT: 02/04/2008
BENCH: P.P. NAOLEKAR & V.S. SIRPURKAR
FIR was filed at Sri Ganganagar (Rajasthan).
The cause of action arose at Ferozpur (Punjab).
Proceedings in lower courts were illegal.
Deepak Nair
(Expert) 04 January 2012
Sufficiently guided by Ld. Mr.Rajkumar
Shonee Kapoor
(Expert) 05 January 2012
However, there is a latest judgement of SC, which says that if the effects ensued at her paternal place, the 498a is maintainable.
Y Abhrahm Ajit has served the harassed husbands for a long time, however that is passe now with """"Sunita Kumari Kashyap Vs. State Of Bihar And Anr. delivered on 11 April, 2011.""" by the Apex Court
Now it needs to be seen that what are the exact wordings in the FIR and how effective your lawyer is.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Raj Kumar Makkad
(Expert) 08 January 2012
Each and every case is distinct ini its nature so it is necessary to go through in detail.
