1. The petitioners, six in number, have challenged the order of cognizance dated 22.7.2002 passed in Complaint Case no. 1088(C) of 2002 Tr. No. 1694 of 2002. By this order cognizance has been taken against the petitioners under Sections 323, 498A and 34 of the Indian Penal Code.
2. The order has been challenged by the petitioners only on the ground that the Judicial Magistrate, 1st Class, Patna, has got no jurisdiction to take cognizance in the case as from the complaint petition itself it is apparent that no part of offences have been committed at Patna and complainant as well the accused persons are also not residing at Patna.
3. The cognizance is bad under Section 177 of the Code of Criminal Procedure.
4. Under Section 177 of the Code of Criminal Procedure every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. In the background of Section 177 of the Code of Criminal Procedure, the facts of the case is to be looked into and the ground on which the petitioners have challenged the entire criminal proceeding as well as the order taking cognizance is to be considered.
5. The complainant-opposite party no. 2, Smt. Arunakshi Gupta, is the wife of petitioner no. 1, Dr. Animesh Gupta and petitioner nos. 2, 3 and 4 are the mother, elder brother and sister-in-law of petitioner no. 1. Petitioner nos. 4 and 5 are the sister and brother-in-law of petitioner no. 1. The case of the complainant is that she was married to petitioner no. 1 on 5th August, 1996 according to Hindu rites and custom at Kankurgachi at Kolkata. After the solemnization of marriage the petitioner no. 1 and opposite party no. 2 along with their family members resided at Kolkata and thereafter, went to United Kingdom where the petitioner no. 1 was working as a specialist physician in gastroenterology. The husband started torturing the complainant from the date of her reaching in England for non-fulfillment of dowry of Rs. 5 lakhs and a brand new Maruti Esteem car. During stay in England from September, 1996 to November, 1996, she was tortured by her husband and finally was sent back to India in the month of November, 1996. In the year 1997 she again went to England and stayed there till 1999. In the year 1997 Arunakshi gave birth to a male child. In December, 1999 she came back to India with her husband and stayed at her sasural till May, 2001. She was tortured by all the accused persons named in the complaint petition. In April, 2001 the accused persons made an attempt to kill her and her newly born child. On 29.5.2001 the complainant was driven out from her sasural. The accused persons did not allow the complainant to take any of her belongings. The complainant has a son and a daughter and she is forced to live with her brother who is working at Patna. The complainant made a prayer in the complaint petition for taking cognizance under Sections 307, 323, 326, 379 and 498 of the Indian Penal Code. After examining the complainant on S.A and examining the witnesses under Section 202 of the Code of Criminal Procedure, cognizance has been taken under Sections 323, 498A and 34 of the Indian Penal Code.
6. The Petitioners have challenged the entire prosecution of the complaint case as well as the order taking cognizance on the ground that the criminal court at Patna has got no jurisdiction to enquire or try the offences alleged in the complaint petition. From the complaint petition itself it is apparent that not a single incident as alleged in the complaint petition has taken place at Patna. The entire occurrence either took place in England or at Kolkata. Petitioner no. 1 has also stated that he has filed a matrimonial case being Matrimonial Suit no. 1548 of 2001 in the court of District Judge at Alipore under Section 10 of the Hindu Marriage Act, 1955 for judicial separation. In this matrimonial case the wife, opposite party no. 2, Arunakshi Gupta had filed a transfer petition (Civil) no. 991/2002 before the Supreme Court of India for transfer of the matrimonial case from Kolkata to Patna. The transfer petition was filed stating that presently she is residing at Patna and, as such, the matrimonial case should be transferred at Patna. The petitioner appeared in the transfer matter and filed certain documents showing that opposite party no. 2 and his son were very much residing at Bali at Kolkata and the son of the petitioner no. 1 and opposite party no. 2 was studying in a school at Kolkata. The opposite party no. 2 finally admitted before the Hon'ble Supreme Court that her minor son was living, in fact in Kolkata and she is also residing there. The Hon'ble Supreme Court by order dated 4.8.2003 was pleased to dismiss the petition seeking transfer of the matrimonial case.
7. The petitioner's counsel has submitted that considering the order passed by the Supreme Court it is obvious that the complainant had falsely stated in the complaint petition that she is presently residing at Patna along with her son with her brother. Since the complainant is also residing at Kolkata and the entire incident, as mentioned in the complaint petition, has taken place at Kolkata, the criminal court at Patna has got no jurisdiction to try the present case.
8. There is force in the submissions of the counsel for the petitioners specially when the Supreme Court has also dismissed the transfer petition of the opposite party. In the facts and circumstances, the criminal court at Patna has got no jurisdiction to try the present case. As such, the entire criminal proceeding arising out of the complaint case as well as the order taking cognizance is bad in the eye of law.
9. The entire criminal proceeding in Complaint case no. 1088 (C) of 2002 including the order taking cognizance is here by quashed. This application is allowed.
10. This petition is disposed of accordingly.