P.S.Naidu and another vs State of U.P.and another

Shri Kant Tripathi, J.—These two petitions under section 482 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') have been filed for quashing the charge sheet filed in case crime no. 6/2006 under sections 498A IPC and section 3/4, Dowry Prohibition Act, P.S. Phase II, district Gautam Budh Nagar.

Both the petitions having been filed against the same charge sheet, are being disposed of by this common order.

Heard the learned counsel for the petitioners and the learned counsel for the complainant and the learned AGA for the State and perused the record.

Criminal Misc. Application no. 34479/2008 has been filed by the husband Ujjwal Paidapathi and criminal misc. application no. 3105 of 2007 has been filed by P.S. Naidu and Smt. P Shilpa Naidu (father in law and mother in law). All the petitioners are permanent residents of Hyderabad (Andhra Pradesh). According to the allegations made in the FIR and the materials collected during the investigation, the marriage of the petitioner husband Ujjwal Paidapathi and complainant Swati Tyagi was an arranged marriage, which took place on 4.2.2004 at Hyderabad. Both the husband and wife left for United States of America in the mid of February 2004 and since then they had been living in United States of America. It is alleged in the FIR that father in law and mother in law used to repeatedly instigate the husband against the complainant from Hyderabad and due to which, the husband used to treat her with cruelty in United States of America. It is also alleged that the husband had been pressurising the complainant to hand over to his parents, her share in the parental gift/money given as wedding presents to her by her father at the time of her marriage, which had been kept in the Standard Chartered Bank, Noida in the joint name of the complainant and her sister Priyanka Tyagi, who is also married and settled in United States of America. It is alleged that the father in law and the mother in law of the complainant wanted her to handover her entire amount alongwith the golden jewellery to them. The husband used to pressurise her for making compliance of the desires of his parents and gave threatening to divorce and also asked her to make arrangements of the requisite money for her education from her sister or parents. He further wanted the complainant''s parents to send money for complainant''s air ticket from United States of America to India when she desired to come back but the complainant did not yield to the pressure of her father in law, mother in law and husband. It is further alleged that the complainant''s parents requested the father in law and mother in law of the complainant to visit Delhi for sorting out the issue but they ignored the request, consequently, no negotiation took place.

During the course of hearing, the learned counsel for the parties informed that the marriage of the petitioner Ujjwal Paidapathi and complainant Swati Tyagi has been dissolved by an American Court and now they are living separately.

The learned counsel for the petitioners submitted that according to the averments made in the FIR as well as in other documents collected during the investigation, the entire cause of action against the husband arose in America. The alleged torture and harassment to the complainant were also given in United States of America. The allegations against the father in law and the mother in law are that they instigated the husband from Hyderabad. There is no allegation that either the husband or father in law or mother in law made any instigation or gave any harassment to the complainant within the territorial jurisdiction of the courts at Gautam Budh Nagar, therefore, no cause of action arose in Gautam Budh Nagar. As such the charge sheet filed in the court of Magistrate at Gautam Budh Nagar is not maintainable and is liable to be quashed.

The learned counsel for the respondent no.4, on the other hand, submitted that when the respondent no. 4 came in India around 2006, her husband required her on phone to handover the money lying in the joint account of the respondent no.4 and her sister, to his parents, therefore, a part cause of action arose within the local limits of the jurisdiction of courts at Gautam Budh Nagar.

According to section 177 of the Code, every offence shall ordinarily be inquired into or tried by a court within whose local jurisdiction it was committed. According to section 178 of the Code, when it is uncertain in which of several local areas an offence was committed, or where an offence is committed partly in one local area and partly in another, or where an offence is a continuing one, and continues to be committed in more local areas than one, or where it consists of several acts done in different local areas, the offence may be inquired into or tried by a court having jurisdiction over any of such local areas. According to section 179 of the Code, when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a court within whose local jurisdiction such thing has been done or such consequence has ensued.

In the present case, the question of territorial jurisdiction of the Additional Chief Judicial Magistrate, Ist, Gautam Budh Nagar has to be decided on the basis of the allegations made in the FIR and the materials collected during the investigation and placed in support of the charge sheet. At this stage, the defence version has no relevance and can not be taken into consideration. If no part of cause of action arose within the territorial jurisdiction of the courts at Gautam Budh Nagar, the filing of the charge sheet in the court of the Additional Chief Judicial Magistrate, Gautam Budh Nagar and taking of cognizance of the offences under section 498A IPC and section 3/4 of the Dowry Prohibition Act on such charge sheet will be deemed to be beyond jurisdiction. It is, therefore, necessary and expedient to find out as to whether any part of the cause of action arose within the territorial jurisdiction of the courts at Gautam Budh Nagar or not. If the answer is in affirmative, the proceedings can not be quashed.

In the present case, the marriage of the petitioner Ujjwal Paidapathi (Petitioner in petition no. 34479/2008) and the respondent no.4 Mrs. Swati Tyagi took place in Hyderabad. The alleged demand of money for the first time was made in Hyderabad. After that, both the married couple proceeded for USA and lived there till the lodging of the FIR. The instigation to the husband was being allegedly given by the father in law and mother in law from Hyderabad. The torture, harassment and neglect in giving financial support to the respondent no.4, by the husband, were being given in USA only. Therefore, most of the cause of action arose in USA. The allegations against the father in law and mother in law are that they instigated the husband from Hyderabad, therefore, the alleged instigation, which happens to be a part of the cause of action, took place in Hyderabad and there is no dispute that the courts at Hyderabad have jurisdiction in the matter. The main contention on behalf of the respondent no.4 to support the charge sheet filed in the court at Gautam Budh Nagar was that the husband made a telephone call to the respondent no.4 after her return from USA, that the money lying in the aforesaid joint account be given to his parents, therefore, a part of the cause of action also arose at Gautam Budh Nagar. In my opinion, the charge sheet can not be quashed only on the ground that the courts at Gautam Budh Nagar have no jurisdiction in the matter. In that event, only the charge sheet has to be returned to the investigating agency for filing in the court at Hyderabad having territorial jurisdiction, specially when a part of the cause of action admittedly arose in Hyderabad. The statements and other materials filed in the present case are not adequate to find out as to whether or not any direction by the husband regarding payment of the money lying in the aforesaid account to his parents was given on phone to the respondent no.4,after her arrival in Gautam Budh Nagar.

The petitioners did not raise any question of territorial jurisdiction before the trial magistrate and straightway filed the aforesaid petitions under section 482 of the Code, whereby the question of jurisdiction has been raised. In view of the fact that the adequate materials are not available before this Court, the question of territorial jurisdiction is liable to be considered by the trial magistrate himself if raised by the petitioners by filing an appropriate application. These two petitions are liable to be disposed of accordingly.

Both the petitions are disposed of with the direction that it will be open to the petitioners to move an appropriate application before the court of concerned Magistrate at Gautam Budh Nagar, questioning his territorial jurisdiction to entertain the charge sheet for trial. If any such application is moved, the same shall be considered and disposed of with a speaking order within a period of three months from the date of presentation of the application. Till then, the learned Magistrate shall not issue any coercive process against the petitioners.

In case the learned Magistrate ultimately finds that he has territorial jurisdiction in the matter, in that event, the bail prayers of the petitioners may be considered and disposed of on the same day by the courts below in the light of the principles laid down in the case of Lal Kamlendra Pratap Singh versus State of U.P. & others (2009) 4 SCC 437.