@JUDGMENTTAG-ORDER
P.D. Rajan, J.@mdashThis petition is filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code") to quash Annexure A Final Report in crime No. 913/2010 of Thrissur Town West Police Station for offences punishable under Sections 406, 498(A), 506(ii) r/w. 34 IPC by invoking inherent jurisdiction. The above crime was registered on a complaint filed by the second respondent in the Chief Judicial Magistrate Court, Thrissur which was forwarded to the Thrissur Town West Police Station for investigation under Section 156(3) of the Code. The petitioners contended that they are innocent and if trial is proceeded it will be a mere abuse of the process of court. More over the Chief Judicial Magistrate Court, Thrissur has no jurisdiction to entertain Annexure B complaint and Annexure A final report.
2. The undisputed facts are that the second respondent married the first petitioner on 10.11.2002 as per customary rites at Thrissur and after that they resided together for two days in her ancestral house at Thrissur. The negotiation of the marriage was initiated and settled by the parents of both parties and after the marriage they resided in a flat at Pune where the first petitioner is permanently settled and afterwards in Mumbai, where he is working. Her allegation is that while residing at Mumbai, petitioners ill-treated her both physically and mentally demanding more amount as dowry. While so, a child was born to them on 09.09.2003 with cerebral palsy. Finally on 12.10.2009 the first petitioner expelled the second respondent from his residence at Chennai. In this circumstance she came to Thrissur, stayed with her parents, and the subsequent mediation talk was also failed. Hence she filed Annexure B complaint before the Chief Judicial Magistrate Court, Thrissur which was forwarded to the Town West Police Station, Thrissur for investigation.
3. The learned counsel for the petitioners Smt. Nalini Chithambaram contended that none of the incidents happened at Thrissur since after the marriage both of them resided at Pune and Mumbai (except for two days in the ancestral house at Thrissur). When matrimonial offences are alleged to have occurred outside the local jurisdiction of the courts in Kerala, the courts in Kerala have no jurisdiction to entertain a complaint. In the year 2009 October, 2nd respondent left her matrimonial home, after that she filed a complaint on 08.09.2010 which is an afterthought. The reason for the delay is not properly explained in Annexure B complaint. He relied on the decisions reported in
4. The learned counsel for the second respondent Adv. S. Rajeev contended that all ingredients attracting the offences are properly alleged in the complaint. Moreover the matrimonial offence is a continuing offence and other offences were committed while they are residing together. Gold and other utensils were entrusted to the petitioners at Vadakara. That entrustment is sufficient to attract criminal breach of trust as alleged in the petition. Since the offence is a continuing offence, separate pleading is not necessary for explaining that aspect which is saved under Section 472 of the Code. When a prima facie case is made out in a complaint there is no reason to disturb Annexure A.
5. The jurisdiction of the criminal court in inquiry and trial are defined under Sections 177 and 178 of the Code of Criminal Procedure, which reads thus:
"177. Ordinary place of inquiry and trial.- Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.
178. Place of inquiry or trial.- (a) When it is uncertain in which of several local areas an offence was committed, or
(b) where an offence is committed partly in one local area and partly in another, or
(c) where an offence is a continuing one, and continues to be committed in more local areas than one, or
(d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas."
The basic concept under Section 177 of the Code is that every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. If the inquiry and trial ordinarily takes place in the proximity of the crime, the witness can reasonably be expected to be available in that locality. In such situation, it would be convenient to both the prosecution and the defence to participate in the trial if it takes place in the court of that locality. Therefore, any act or omission which amounts to an offence is to be inquired into and tried by a Court under Section 177 of the Code within whose local jurisdiction such acts or omissions were committed. The Apex Court in Y. Abraham Ajith''s case (cited supra) in paragraph 12 held thus:
"The crucial question is whether any part of the cause of action arose within the jurisdiction of the court concerned. In terms of Section 177 of the Code, it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused."
6. Under Section 178 of the Code, there are four situations explained with regard to the place of inquiry and trial.- (a) when it is uncertain in which of several local areas an offence was committed (b) where an offence is committed partly in one local area and partly in another (c) where an offence is a continuing one, and continues to be committed in more local areas than one (d) where it consists of several acts done in different local areas. It appears from the complaint that the petitioner started torturing the 2nd respondent (complainant) as a result of which 2nd respondent had returned back to Thrissur with her parents. It is well settled that every offence shall be inquired into and tried by the court within whose local jurisdiction it was committed. From the facts the negotiation of the marriage was initiated and discussed by the parents at Thrissur and Vadakara with the husband and other family members and thereafter marriage was solemnised at Thrissur, after that she resided with the husband and his family members at Chennai, Pune and Mumbai. The local areas of the commission of offence means local area within which the Code applies alone. When the offence is committed partly in one local area and partly in another, such offence may be tried in either of the two courts. Section 178(b) of the Code does not envisage a position in which one ingredient of the offence is committed at one place and other is committed in another place but it speaks of cases when an offence is committed partly in one area and partly in another area, the courts having jurisdiction in both areas have got territorial jurisdiction to take cognizance of an offence.
7. In case of continuing offence, u/s. 178(c) of the Code, it means an offence continues to be committed in more than one local area and it may be inquired into or tried by the court having jurisdiction over that area. A conspiracy to commit such offence is considered as a continuing offence. When several acts constituting the offence are done in different local areas it may be inquired into and tried by the Courts having jurisdiction over such local areas. The allegations in Annexure A Final Report and Annexure B complaint show that matrimonial offences alleged against the petitioners were committed while they were residing in Pune and Mumbai. In Annexure B itself it is stated that immediately after the marriage they resided together in the matrimonial house for a few days and thereafter in the parental house of the first petitioner at Vadakara which is in Calicut district and thereafter at the first petitioner''s work place at Mumbai and Pune. There was no allegation in Annexure B that any cruelty was committed by the first petitioner while they were residing at her residence at Thrissur. After one week both parties left Kerala and several times they had occasion to visit Kerala. There is no averment in the complaint that in those occasions the first and second petitioners had assaulted the second respondent. It is the rule that every offence shall be inquired into and tried by a court within whose local jurisdiction it was committed. If that be the position, the entire incident might have happened outside Kerala and every such offence shall be inquired into and tried by a court within whose local jurisdiction it was committed. The Apex Court in Bhura Ram''s case (cited supra) in para No. 6, held thus:
"The facts stated in the complaint disclose that the complainant left the place where she was residing with her husband and in-laws and came to the city of Sri Ganganagar, State of Rajasthan and that all the alleged acts as per the complaint had taken place in the State of Punjab. The court at Rajasthan does not have the jurisdiction to deal with the matter. On the basis of the factual scenario disclosed by the complainant in the complaint, the inevitable conclusion is that no part of cause of action arose in Rajasthan and, therefore, the Magistrate concerned has no jurisdiction to deal with the matter. As a consequence thereof, the proceedings before the Additional Chief Judicial Magistrate, Sri Ganganagar are quashed. The complaint be returned to the complainant and if she so wishes she may file the same in the appropriate court to be dealt with in accordance with law."
8. The learned counsel for the second respondent relies on the decision of the Apex Court in
"whether an officer in charge of a police station has requisite jurisdiction to make investigation or not will depend upon a large number of factors including those contained in Sections 177, 178 and 181 of the Code of Criminal Procedure. In a case where a trial can be held in any of the places falling within the purview of the aforementioned provisions, investigation can be conducted by the officer in charge of the police station concerned which has jurisdiction to investigate in relation thereto. Sub-section (4) of Section 181 of the Code of Criminal Procedure would also be relevant therefore."
9. I have considered the allegations with regard to the commission of offence under Section 406 IPC in which second petitioner is involved. In order to attract offence under Section 406 IPC, the ingredients for criminal breach of trust explained under Section 405 IPC is to be stated in their petition. Section 405 IPC reads as follows:
405. Criminal breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
The essential ingredients of criminal breach of trust are (i) the accused must be entrusted with property or dominion over it and (ii) he must have dishonestly misappropriated the property or converted to his own use or disposes of it in violation of any trust. Thus, the two distinct parts of the offence of criminal breach of trust are (1) the creation of an obligation in relation to the property over which dominion or control by the accused (2) Misappropriation in dealing with the property dishonestly, which is contrary to the terms of the obligation created. A reading of the Section suggest that the gist of the offence is dishonest misappropriation or conversion to one''s own use of another''s property.
10. In this context the question is whether the entrustment of the property alone is sufficient to attract offence under Section 406 IPC. The answer is that when entrusted property is dishonestly misappropriated then the ingredients will come into action. Similarly when an offence is a continuing one and committed in more local areas than one, it may be inquired into or tried by those courts having territorial jurisdiction. According to Section 181(4) of the Code 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. The learned counsel further submits that the property was entrusted at Vadakara, even then Thrissur court has no jurisdiction to receive such a complaint. Even for arguments sake if Section 181(4) of the Code is accepted, if the entrustment is made at her parental home, the Vadakara, Thrissur courts have no jurisdiction. If trial is proceeded in Thrissur it will amount to mere abuse of the process of the court. Therefore, entrustment of the property alone is not sufficient to attract offence under Section 406 IPC. The allegation regarding dishonest misappropriation or conversion of those articles into their own use in violation of any direction is necessary in a complaint.
11. It is well settled that every offence shall ordinarily inquired into and tried by the court within whose jurisdiction it was committed. But, in Section 179 there is an exception to the general rule. It provides that when an act is an offence by reason of anything which has been done and any consequence of which has ensued therefrom, the offence may be inquired into or tried by a court within whose local jurisdiction the act was committed or the consequence was ensued. The allegations made in the complaint and final report was that matrimonial offences were committed while residing at Mumbai, Pune and Chennai. Moreover complainant has no case that she had been admitted for treatment in a hospital at Thrissur as a consequence of the physical torture to attract jurisdiction under Section 179 of the Code. Therefore the act and consequence are so interlinked that the consequence is the direct result of the act. In Annexure A Final Report it is mentioned that they have entrusted property at Vadakara. The petitioners contended that after one week of the marriage the entire things were delivered at Chennai and the entrustment was made by the second respondent''s parents at Chennai. If that be the position, the entrustment portion also will come either in Vadakara, Calicut district in Kerala State or Chennai which is outside Kerala, in both situation which is outside Thrissur district. But they have not stated when and where the alleged misappropriation is committed whether it is partly in one local area or partly in another, then court having jurisdiction in both areas will get territorial jurisdiction to take cognisance of the offence. In
12. For invoking inherent powers under Section 482 of the Code three grounds mentioned therein has to be considered i.e. to make such orders as may be necessary to give effect to any order under this Code, or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. The above grounds were explained by the Apex Court in
"The allegations of harassment by the husband''s close relations who had been living in different cities and never visited or rarely visited the place where the complainant wife resided would have an entirely different complexion. Such allegations of the complainant are required to be scrutinized with great care and circumspection."
Here the mother was residing far away from the first petitioner''s residence. Vague allegations are made against the second petitioner. That itself is sufficient to invoke Section 482 of the Code. Therefore, if petitioners are proceeded with the above ordeal trial it will be a mere abuse of the process of the court.
Hence, I quash Annexure A final report and Annexure B complaint pending before the Chief Judicial Magistrate''s Court, Thrissur. However, I make it clear that this will not affect the right of the second respondent to agitate her grievances in appropriate forum. Therefore, the complaint shall be returned to the complainant. On receipt of the complaint the complainant is free to file the complaint before appropriate court.
The Crl.M.C. is allowed as above.
