Ganesh Biswas and 4 Ors v. The State of Assam and Anr

JUDGMENT AND ORDER (CAV)

Heard the learned counsel Mr. PK Roychoudhury appearing for the petitioners. Also heard Mr. J. Roy, the learned senior counsel representing the respondent(s).

¶2This is an application under Section 407 of the CrPC seeking a transfer of the Complaint Case No.170 of 2019 under Section 406 and 506 of the Indian Penal Code pending in the court of the Chief Judicial Magistrate at Jorhat to the court of the Chief Judicial Magistrate, Kamrup(Metro) at Guwahati.

¶3The sole respondent was married to the petitioner no.1 on

17.01.2019. It was an arranged marriage. Very soon, the couple fell from cloud nine. Marital disputes started to arise. She left her matrimonial home at Guwahati and started to reside with her parents at Jorhat. Her stridhan properties are still in her matrimonial house at Guwahati. For recovery of those items, she filed a case being CR No.170/2019 under Section 406/506 of the Indian Penal Code in the court of the Chief Judicial Magistrate, Jorhat.

¶4In support of their cases, the petitioners have relied the provision of law as laid down in Section 181(4) of the CrPC. It reads as under: "181(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 Page No.# 4/6 offence was received or retained, or was required to be returned or accounted for, by the accused person."

¶5In order to buttress his points, Mr. Roychoudhury has relied upon a decision of this Court that was delivered in Dilip Kr. Sengupta and Ors. Vs. Shiuli Sen, reported in (2014) 3 GLR 555.

¶6Paragraph 22 of the said judgment is quoted as under: "22. When the stridhan articles were received at Lumding within the territorial jurisdiction of the Court at Hojai and when the allegation of criminal breach of trust is made, in the considered opinion of the Court, the Court at Hojai, Sankardev Nagar will have territorial jurisdiction to proceed with the matter in terms of section 181(4), Cr.PC."

¶7Per contra, Mr. J. Roy has relied upon a decision of the Supreme Court that was delivered in Rupali Devi vs. State of Uttar Pradesh and Ors., reported in (2019) 5 SCC 384. Paragraph 16 of the judgment reads as under: "16. We, therefore, hold that the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498-A of the Penal Code."

¶8I have considered the submissions made by the learned counsel of both sides.

¶9In Rupali Devi's case (supra), the married woman was driven out of her matrimonial home and the question arose in which of the places her case under Section 498-A would lie. After analysing the provision of Section 178 of the CrPC, the Supreme Court has held that a case under Page No.# 5/6 Section 498-A of the Penal Code would lie in the place where the woman has taken shelter after leaving or driven away from the matrimonial house.

¶10In Dilip Kr. Sengupta's case (supra), this Court has clarified that where the stridhan articles are received, there only the case would lie, according to the provisions of Section 181(4) of the CrPC.

¶11According to Section 181(4) CrPC, any offence of criminal misappropriation or criminal breach of trust may enquired into or tried by 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.

¶12An offence under Section 498-A of the IPC and an offence under Section 406 of the IPC are two distinct offences. They are not similar offences. Unlike Section Section 498-A of the Indian Penal Code, the Section 181 of the CrPC has laid down the guideline as to where the trial for an offence of criminal breach of trust should be held.

¶13In the case in hand, the stridhan properties were received at Guwahati within territorial jurisdiction of the court at Guwahati and the alleged criminal breach of trust or criminal misappropriation is committed at Guwahati. Therefore, the court at Guwahati shall have the territorial jurisdiction to proceed with the matter in terms of Section 181(4) of the CrPC.

¶14With the aforesaid premised reasons, the transfer petition is allowed. The Complaint Case No.170/2019 under Sections 406/506 of the Indian Page No.# 6/6 Penal Code, pending in the court of the Chief Judicial Magistrate, Jorhat shall be transferred to the court of the Chief Judicial, Kamrup (Metro) at Guwahati. The Transfer petition is disposed of accordingly.

JUDGE Comparing Assistant

PageoNo.#o1/6 GAHC010260352019 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oTr.P.(Crl.)/39/2019ooooooooo GANESHoBISWASoANDo4oORS.o S/OoLATEoNARAYANoBISWAS,oR/OoLALGANESH,oGANESHoPALLY,oHOUSEo NO.o24,oNEARoPANIoTANKI,oP.S.-DISPUR,oGUWAHATI-781034,oDIST- KAMRUP(M),oASSAM 2:oSMTI.oKANANoBISWAS oW/OoLATEoNARAYANoBISWAS oR/OoLALGANESH oGANESHoPALLY oHOUSEoNO.o24 oNEARoPANIoTANKI oP.S.-DISPUR oGUWAHATI-781034 oDIST-KAMRUP(M) oASSAM 3:oSMTI.oRIMIoBISWAS oW/OoSRIoRAJUoDAS oR/OoLALGANESH oGANESHoPALLY oHOUSEoNO.o24 oNEARoPANIoTANKI oP.S.-DISPUR oGUWAHATI-781034 oDIST-KAMRUP(M) oASSAM 4:oRAJUoDAS oS/OoSHANTIoDAS oR/OoLALGANESH oGANESHoPALLY oHOUSEoNO.o24 oNEARoPANIoTANKI oP.S.-DISPUR PageoNo.#o2/6 oGUWAHATI-781034 oDIST-KAMRUP(M) oASSAM 5:oSMTIoMONIoBISAWASo(MALLICK) oW/OoSRIoGOPALoMALLICK oR/OoLALGANESH oGANESHoPALLY oHOUSEoNO.o24 oNEARoPANIoTANKI oP.S.-DISPUR oGUWAHATI-781034 oDIST-KAMRUP(M) oASSAo VERSUSo THEoSTATEoOFoASSAMoANDoANR.o REPRESENTEDoBYoTHEoPUBLICoPROSECUTOR,oASSAM 2:SMTI.oBORNALIoDUTTA oD/OoSRIoBABULoDUTTA oW/OoSRIoGANESHoBISWAS oR/OoK.B.oROAD oWARDoNO.o9 oP.O. oP.S.oANDoDIST-JORHAT oASSAM oPIN-78244o AdvocateoforotheoPetitionerooooo:oMR.oPoKoROYCHOUDHURYo AdvocateoforotheoRespondento:oPP,oASSAMoo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo ::kPRESENTk:: HON'BLEkMR.kJUSTICEkPARTHIVJYOTIkSAIKIA o oooooooooooooooooooooooooooooFor the Petitionersoooooo: Mr. PK Roychoudhury, ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Advocate. oooooooooooooooooooooooooooooFor the Respondent(sooooooooo): Mr. J. Roy, Advocate. o Page No.# 3/6 Date of Hearing : 06.02.2023. Date of Judgment : 09.02.2023.