IN THE GAUHATI HIGH COURT

IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH) Criminal Petition No. 359 of 2017 1. Sri Bijay Kumar Jalan, Son of Ramawatar Jalan, C/O Ganesh Narayan Gowardhan Das, Pandit N Chandra Goswami Path, Dergaon, P.O & P.S. Dergaon, Dist. Golaghat, Assam. 2. Sri Ramawatar Jalan, C/O Ganesh Narayan Gowardhan Das, Pandit N Chandra Goswami Path, Dergaon, P.O & P.S. Dergaon, Dist. Golaghat, Assam. 3. Smti. Bimala Devi Jalan, Wife of Ramawatar Jalan, C/O Ganesh Narayan Gowardhan Das, Pandit N Chandra Goswami Path, Dergaon, P.O & P.S. Dergaon, Dist. Golaghat, Assam. ----- Petitioners. VERSUS 1. The State of Assam. 2. Smti. Smreety Jalan, Daughter of Late Dindayal Jalan, W/O Sri Bijay Kumar Jalan, R/O. New Balibat, P.O & P.S. Jorhat, Assam, Pin-785001. ----- Respondent/Opposite Party. B E F O R E Hon ble Mr. Justice Hitesh Kumar Sarma Advocates for the petitioner : Mr. AM Bora, Sr. Advocate. Mr. J Patowary, Mr. D Gogoi, Ms. C Choudhury, Mr. DK Baidya, Advocates. Advocate for Respondent No. 1 : Mr. NK Kalita, Additional Public Prosecutor, Assam. Advocates for Respondent No. 2 : Mr. GN Sahewalla, Sr. Advocate Mr. P Bora, Md. Aslam, Mr. P Deka, Ms. D Swami, Advocates. Date of hearing : 14 of August, 2017. Date of Judgment & Order :: 6 th of September, 2017. Crl. Pet. No. 359 of 2017 Page 1 of 13

JUDGMENT & ORDER The instant petition has been preferred, under Section 482 Cr.P.C., for setting aside and quashing the CR Case No. 4/2017, under Sections 406/34 of the IPC, pending in the Court of Chief Judicial Magistrate, Jorhat, and the order, dated 17-02-2017, passed therein. The said complaint was lodged by the respondent No. 2 herein, as complainant, against the petitioners alleging that the petitioners have misappropriated her stridhan properties, given at the time of her marriage with accused petitioner No. 1, Sri Bijay Kumar Jalan. The petitioner No. 2 and petitioner No. 3 are the father and mother, respectively, of the petitioner No. 1. The respondent No. 2, had also prayed for issuance of search warrant for recovery of stridhan articles from the residence of the petitioners. 2. After the complaint was lodged, the learned Court below recorded the statement of the respondent No. 2, under Section 200 CrPC. By an order dated 17.02.017, the learned Court below passed an order whereby cognizance of the offence under Section 406/34 IPC was taken against the petitioners. By the same order, the learned Court below also issued a search warrant directing the O/C, Dergaon P.S to execute the search warrant at the house of the petitioners. The O/C, Dergaon P.S was further directed, by the said order, dated 17.02.2017, to hand over the stridhan articles to the respondent No. 2 on her executing a bond of Rs 5,00,000/-. Crl. Pet. No. 359 of 2017 Page 2 of 13

3. As said before, the order dated 17.02.2017 and the proceedings in the CR Case No. 4/2017 have been put to challenge, by the accused persons as petitioners, in this petition under Section 482 read with Section 401 of the Code of Criminal Procedure (CrPC) 4. Heard Mr. A.M. Bora, learned Senior Counsel for the petitioners and Mr. G.N. Sahewalla, learned Senior Counsel for the respondents. 5. Mr. A.M. Bora, learned Senior Counsel for the petitioners has assailed the proceedings in CR 4/2017 on the following aspects; i. That, the complaint on its reading in entirety does not disclose the commission of any offence. ii. That, even if the facts stated in the complaint petition are held to be true then ex facie the complaint is barred by limitation. Hence, cognizance ought not to have been taken by the learned Chief Judicial Magistrate, Jorhat. iii. That, admittedly, the accused persons are residents of Golaghat district which is beyond the territorial jurisdiction of the Court of Chief Judicial Magistrate, Jorhat, therefore, before issuance of process, it was necessary for the Court to have examined all the witnesses for the complainant as mandated by Section 202 CrPC iv. That, on the facts stated in the complaint petition the Court of Chief Judicial Magistrate, Jorhat, lacked territorial jurisdiction to try the case. 6. Mr. Bora, the learned Senior Counsel for the petitioners has placed reliance on the cases of T. Abraham Ajith vs Inspector of Police, Crl. Pet. No. 359 of 2017 Page 3 of 13

Chennai, (2004) 8 SCC 100, Manish Ratan vs State of M.P, (2007) 1 SCC 262, Bhura Ram vs State of Rajasthan (2008) 11 SCC 103, Sardar Singh vs State of Haryana (AIR 1977 SC 1766) and Dashrath Rupsingh Rathod vs State of Maharashtra (2014) 9 SCC 129 in order to support his contentions. 7. On the other hand, Mr. Sahewalla, learned Senior Counsel appearing for the respondent No. 2, while defending the order passed by the learned trial Court submitted that perusal of the complaint petition shows sufficient materials that petitioners have misappropriated the stridhan articles given to the respondent No. 2 at the time of marriage. Mr. Sahewalla, further argued that neither the complaint is barred by limitation nor the learned trial Court lacks territorial jurisdiction to try the case. Mr. Sahewalla, however, conceded that if a mandatory procedure has been violated the case can be remanded to the learned trial Court for compliance of the procedural irregularity. In support of his case, Mr. Sahewalla, learned Senior Counsel appearing for the respondent No. 2, has relied on the cases reported as Balkishan Dhandhania vs Nidhi Dhandhania, 2016 (2) GLT 100, Nanotech (P) Ltd. vs Nilkamal Ltd. 2009 (2) GLT 14, Rashmi Kumar vs Mahesh Kumar Bhada (1997) 2 SCC 397, and Pratibha Rani vs Suraj Kumar (1985) 2 SCC 370. 8. I have paid due consideration to the rival submissions. 9. There seems to be no dispute on the point that property given to a Hindu woman at the time of her marriage is termed as Stridhan properties and Crl. Pet. No. 359 of 2017 Page 4 of 13

the case of Pratibha Rani (supra), as relied upon by the learned Senior Counsel for the respondent No. 2, clearly establishes that in the case of stridhan property, the title of which always remains with the wife though possession of the same may sometimes be with the husband or other members of his family, if the husband or any other member of his family commits an offence of breach of trust with respect to such stridhan they will be liable to punishment for the offence of criminal breach of trust under Sections 405 and 406 of the IPC. 10. In this regard, when I look into the complaint petition it contains categorical averments that certain articles were given to the respondent No. 2 at the time of her marriage, which were retained by the petitioners at the time when the respondent No. 2 was driven out from the society of the petitioners. Thus, on perusal of the complaint it cannot be said that ex facie no case of criminal breach of trust has been made even if the allegations are held to be true. The uncontroverted allegations do make out a case of criminal breach of trust against the petitioners. 11. Coming now, to the aspects of limitation as to taking of cognizance, Mr. Bora, learned Senior Counsel for the petitioners, while referring to the averments made in the complaint petition stated that the complaint has been filed more than three years after the making of demand and hence the complaint is barred by limitation. 12. Whether misappropriation of stridhan property is a continuing offence or not for the purpose of limitation came up for discussion in the case of Crl. Pet. No. 359 of 2017 Page 5 of 13

Krishna Bhattacharjee v. Sarathi Choudhury, (2016) 2 SCC 705 wherein the Hon ble Supreme Court posed a question unto itself as follows; 32. Regard being had to the aforesaid statement of law, we have to see whether retention of stridhan by the husband or any other family members is a continuing offence or not. 13. While disposing of the case, the Hon ble Supreme Court, in Krishna Bhattacharjee (supra), held that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act (Protection of Women from Domestic Violence Act). The Hon ble Supreme Court, in the facts of the case, further held that as the status between the parties is not severed because of the decree of dissolution of marriage the concept of continuing offence gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians. 14. I may mention here that even though the facts in Krishna Bhattacharjee (supra), pertained to The Protection of Women from Domestic Violence Act, 2005, yet the concept of continuing offence as developed in the case of Krishna Bhattacharjee (supra), is squarely applicable even for the offences under the Indian Penal Code as the issue which forms the core of dispute is misappropriation of stridhan property. Crl. Pet. No. 359 of 2017 Page 6 of 13

15. In this regard Section 472 of CrPC provides that in the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues. 16. Thus, so long as the stridhan property remains in the hands of accused persons the offence of criminal breach of trust continues to take place and fresh period of limitation shall begin to run. 17. Now, whether the petitioners have committed criminal breach of trust with respect to stridhan properties are all questions of fact and no prejudicial findings can be given by invoking inherent jurisdiction of this Court. There is a categorical allegation that when the stridhan property was demanded the petitioners refused to part with it. The veracity of this statement cannot be gone into in an application under Section 482 CrPC. 18. In the result, the plea of the petitioners that the complaint is barred by limitation does not stand in view of the law and facts as discussed hereinbefore. 19. The further ground on which the petitioners have challenged the proceedings in the learned trial Court arises from the 2005 Amendments to Section 202 CrPC which now provides as follows; Section 202. Postponement of issue of process. 1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Crl. Pet. No. 359 of 2017 Page 7 of 13

Provided that no such direction for investigation shall be made, (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. 20. Admittedly, in this case the accused persons are residents of Golaghat district which is beyond the territorial jurisdiction of Jorhat district. Section 202(1) CrPC, as it stands today, contemplates two circumstances during inquiry. If the accused persons are residents within the territorial jurisdiction of the Court then, the Magistrate may postpone the issue of process until all the witnesses for the complainant is examined. Thus, in these circumstances the requirement of examining all witnesses before issuance of process is left to the discretion of the Court. However, this discretion has been taken away if the accused persons are residents beyond the territorial jurisdiction of the Court. In these circumstances, the Magistrate has no option but to examine all the witnesses before issuance of process. Infact, in Balkishan Dhandhania (supra), this Court, in paragraphs 47, 48, 49 & 50 of the judgment, has held that Section 202 CrPC is mandatory in nature and its non-compliance will render the order of issuance of process as illegal. However, having observed that the mandatory rigours of Section 202 CrPC had not been complied with, this Court remitted the matter to the learned trial Court for compliance of the procedure instead of quashing the complaint. I am of the considered view that indeed for non- compliance of a mandatory procedure only the order as to issuance of the process is vitiated and not the case per se, if the case otherwise has merits. I have already held in the foregoing discussions that the Crl. Pet. No. 359 of 2017 Page 8 of 13

uncontroverted allegations in the complaint has merits and hence the entire case cannot be quashed on the ground that mandatory procedure as prescribed in Section 202 CrPC, in the facts of this case, was not complied with. 21. The final leg of the arguments of the petitioners is that the Court of Chief Judicial Magistrate, Jorhat lacked territorial jurisdiction to try the case. In this regard learned Senior Counsel for the petitioners has relied on the cases of Y. Abraham Ajith (supra), Bhura Ram, (supra), and Dashrath Rupsingh Rathod (supra) and Manish Ratan (supra). 22. Mr. Bora, learned Senior Counsel for the petitioners, has relied on the case of Manish Ratan (supra), wherein the Hon ble Supreme Court had an occasion to deal with issue of territorial jurisdiction, Section 177 and Section 178 CrPC to be precise. 23. Mr. Sahewalla, the learned Senior Counsel for the respondent No. 2, while controverting the submissions of Mr. Bora, argued that on the facts of the case Section 181 (4) of CrPC is attracted and hence the Court of Chief Judicial Magistrate, Jorhat, has territorial jurisdiction to try case. 24. Section 181 (4) of CRPC provides as follows; (4) 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 the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person. 25. In the case of Kushal Kumar Gupta v. Mala Gupta, (2011) 12 SCC 434 the wife had filed a complaint against her parents in law under Sections 406 and 498-A of the Penal Code, 1860. On being satisfied that a Crl. Pet. No. 359 of 2017 Page 9 of 13

prima facie case to go to trial had been made out, the learned Magistrate issued process against the parents-in-law. Aggrieved by the order of issuance of process, the parents-in-law filed a revision petition which was dismissed. Thereafter, the parents-in-law filed an application, under Section 482 CrPC, for quashing of the proceedings arising out of the complaint under Sections 406 and 498-A IPC. The main ground taken in the said petition was that the court at Patiala had no jurisdiction to entertain the complaint since no part of the cause of action for the same had arisen within its jurisdiction. The application under Section 482 CrPC, however, stood dismissed. 26. In the Supreme Court, arguments were made, by the parents-in-law, with reference to Section 181 (4) of CrPC. It was urged that since no part of the cause of action had arisen at Patiala, the Court at Patiala did not have territorial jurisdiction to try the complaint. On the other hand the complainant argued that since the complaint petition contains a categorical statement that stridhan articles were to be returned at Patiala Court, Section 181 (4) CrPC gets attracted, and hence, Court at Patiala had jurisdiction to try the complaint. 27. The Supreme Court, in Kushal Kumar Gupta (supra), on the facts of the case, accepted the arguments put forward by the complainant holding that, during the trial the accused parents-in-law will have to disprove the complainant s case that part of the cause of action arose in Patiala where the dowry articles were to be returned to the complainant and as it stands, the complaint does indicate that a part of the cause of action arose in Patiala, thus attracting the provisions of Section 181(4) CrPC. Crl. Pet. No. 359 of 2017 Page 10 of 13

28. In the light of the law laid in Kushal Kumar Gupta (supra), it needs to be seen whether in the instant case there is any averment indicating that any part of the cause of action arose at Jorhat. 29. I have perused the complaint petition, and the statement of the complainant recorded under Section 200 CrPC. These materials though indicate that stridhan articles were given at Jorhat but there is absence of such averments that the stridhan articles were to be returned at Jorhat. The legal notice sent from the complainant also does not contain any statement that articles are to be returned at Jorhat. 30. Hence, in view of the law, as laid down in Kushal Kumar Gupta (supra), as well as from a reading of Section 181 (4) CrPC, it is clear that the Court of Chief Judicial Magistrate, Jorhat, lacked territorial jurisdiction to try the case no part of the cause of action, pertaining to alleged criminal breach of trust of stridhan properties, arose within the jurisdiction of the Court of Chief Judicial Magistrate, Jorhat. 31. It may be pointed out here that issue as to territorial jurisdiction has to be decided on bare perusal of the complaint petition and the material annexed therewith. A Magistrate who has already taken cognizance of a case cannot reopen the issue of territorial jurisdiction as is evident from a reading of Section 201 CrPC. The law laid down, in this regard, by the Hon ble Supreme Court in the case of Devendra Kishanlal Dagalia v. Dwarkesh Diamonds (P) Ltd., (2014) 2 SCC 246, may be referred in this context wherein the Hon ble Supreme Court held as follows; Crl. Pet. No. 359 of 2017 Page 11 of 13

12. Section 201 CrPC, as noticed earlier, can be applied immediately on receipt of a complaint, if the Magistrate is not competent to take cognizance of the offence. Once the Magistrate taking cognizance of an offence forms his opinion that there is sufficient ground for proceeding and issues summons under Section 204 CrPC, there is no question of going back following the procedure under Section 201 CrPC. In absence of any power of review or recall the order of issuance of summons, the Magistrate cannot recall the summons in exercise of power under Section 201 CrPC. 32. Since, in the present case, the Court at Jorhat lacks territorial jurisdiction to try the case, as indicated above, the proper course for the learned Court below would have been to return the complaint to be presented before proper Court by exercising jurisdiction under Section 201 CrPC. 33. I, therefore, find that the contention of the learned Senior Counsel for the petitioners, regarding lack of territorial jurisdiction of Court of Chief Judicial Magistrate, Jorhat, has sufficient force. 34. In the result, and for the foregoing discussions, it is held that no case for quashing of the complaint is made out on the grounds urged by the petitioners. The petition is allowed to the extent that Courts at Jorhat do not possess territorial jurisdiction to try the complaint case in question. As a consequence of this order, the act of taking of cognizance and order so far as issuance of processes, including search warrant, are liable to be set aside and quashed because these orders were passed by a Court having no territorial jurisdiction to take cognizance and to try the case. On the other hand, it appears to this Court that the filing of the complaint at Jorhat instead of Golaghat is the result of choosing a forum at a wrong place and had the complaint been filed at Golaghat, the case would have been tried there without Crl. Pet. No. 359 of 2017 Page 12 of 13

any agitation on the point of territorial jurisdiction. In a situation like that in the instant case, in the considered view of this Court, Section 201 CrPC can be usefully applied for the purpose of returning the complaint to be tried by the appropriate forum of competent jurisdiction. 35. Accordingly, as stated above, the order, dated 17-02-2017, taking cognizance and issuing process including order of search warrant are set aside and quashed. On the other hand, for the ends of justice, it is ordered that complaint be returned by the learned Chief Judicial Magistrate, Jorhat, with an endorsement, as required under Section 201(a) of the Cr.P.C. for presentation before the proper Court. 36. While parting, I may also add that observations have been made in this judgment regarding averments in the complaint petition. These observations are not intended to be prejudicial to the petitioners or for that matter the respondent No. 2 rather; the observations have been made only to decide the plea whether inherent jurisdiction of this Court shall be exercised for quashing the complaint as it does not disclose any cognizable or non-cognizable offence. Hence, while taking up necessary proceedings with respect to the complaint, in accordance with the decision rendered in this judgment, the learned Magistrate shall not be influenced by any of the observations and will act independently on the basis of the merit of the case. Paul JUDGE Crl. Pet. No. 359 of 2017 Page 13 of 13