Smt. Poonam Prasad vs State of Uttarakhand

B.C. Kandpal, J.—By way of this writ petition under Article 226 of Constitution of India the petitioner has challenged the order dated 05.12.2007 passed by Judicial Magistrate, Roorkee in Complaint Case No.2983 of 2007, Smt.Poonam versus Virendra Kumar Prasad & others, under Sections 406,120B IPC, P.S.Kotwali, Roorkee, District Haridwar as well as judgment and order dated 01.02,2008 passed by District & Sessions Judge, Haridwar in Criminal Revision No. 12 of 2008, Smt.Poonam versus State of Uttarakhand, contained in Annexures 2 and 4 to the writ petition.

Brief facts of the case are that marriage of petitioner was solemnized with Virendra Kumar Prasad on 24.02.2007 at Dehradun and after the marriage the husband of petitioner and his family started cruelty with the petitioner. The petitioner filed a complaint against her husband-Virendra Kumar Prasad and family members under Sections 498A, 323, 313 IPC and 3/4 Dowry Prohibition Act and petitioner filed an application u/s 125 Cr.P.C. against her husband before Additional Family Judge, Roorkee. The learned Judicial Magistrate Roorkee vide order dated 05.12.2007 rejected the complaint of the petitioner for returning the Stridhan due to lack of jurisdiction. Aggrieved by the order dated 05.12.2007 the petitioner filed a criminal revision before District & Sessions Judge, Haridwar and same was also dismissed vide judgment and order dated 01.02.2008. Feeling aggrieved by the aforesaid impugned orders, the petitioner has preferred the present writ petition before this Court.

Heard Sri Pawan Kumar, learned counsel for petitioner, Sri S.S.Adhikari, learned AGA for respondent/State and perused the record.

Perusal of impugned order passed by Judicial Magistrate, Roorkee shows that incident had taken place within the jurisdiction of P.S.Dalanwala, Dehradun. The learned Magistrate has also recorded a finding that as per the complaint the incident with regard to refusal of returning the Stridhan has also occurred within the jurisdiction of Dehradun. Therefore, in view the provisions of Section 181(4) of Cr.P.C. the jurisdiction lies in the court situate within the jurisdiction of Dehradun, not at Roorkee. In the revision also the learned District & Sessions Judge has confirmed the order dated 05.12.2007 passed by Judicial Magistrate, Roorkee observing therein that the Magistrate by dismissing the complaint under the provisions of Section 203 of Cr.P.C. has not committed any illegality.

In order to resolve the controversy it would be pertinent to quote the provisions of Section 201 of Cr.P.C. which read as follows:

Procedure by Magistrate not competent to take cognizance of the case. -

If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall,-

(a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect;

(b) if the complaint is not in writing, direct the complainant to the proper Court.

Perusal of aforesaid provisions of Section 201 of Cr.P.C. makes picture very clear that if the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall pass an order for return of the complaint in order to present the same to the proper Court with an endorsement to the effect that complaint is in writing or shall direct the complainant to file the complaint before the proper Court, in case, if the complaint is not in writing. In the instant case, the complainant, who is the petitioner before this Court, filed the complaint before the court of Judicial Magistrate, Roorkee in writing, therefore, if the Magistrate was of the opinion that the court does not have the jurisdiction to take cognizance in the matter, then the proper course for the Magistrate was open to direct the complainant to present the complaint before the proper Court with an endorsement to that effect instead of dismissing the same under the provisions of Section 203 of Cr.P.C. The learned Magistrate as well as learned Sessions Judge thus have committed an illegality by ignoring the provisions of Section 201 of Cr.P.C. The dismissal of complaint in view of the aforesaid provisions cannot be said to be just and proper.

For the reasons stated above, I set aside the order dated 05.12.2007 passed by Judicial Magistrate, Roorkee, which is contained in Anenxure-2 to the writ petition, as well as judgment and order dated 01.02.2008 (Annexure-4 to the writ petition) passed by District & Sessions Judge, Haridwar in Criminal Revision No. 12 of 2008, thereby confirming the order passed by Judicial Magistrate, Roorkee and direct the learned Judicial Magistrate, Roorkee to make an endorsement in the complaint thereby directing the complainant to present the complaint before the proper Court of jurisdiction.

With the aforesaid observations, the petition is finally disposed of.