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Sukhdev Singh and ors. Vs. Sukhvinder Kaur - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1974CriLJ229
AppellantSukhdev Singh and ors.
RespondentSukhvinder Kaur
Cases ReferredVasantha Krishana Swami v. M. S. Krishna Swami
Excerpt:
.....acquire knowledge of passing of the said order. - it would apply to only those cases where the trial has proceeded to its termination and the court is satisfied that no failure of justice has been occasioned by the trial having taken place in a wrong court, but where the objection as to jurisdiction has been taken up before or at the time of the commencement of the trial, no shelter can be taken behind section 531, cr......also been admitted by the complainant's counsel at the bar at the time of arguments that the re-marriage took place in village himatpura, district ferozepore which makes it self-evident that the court of magistrate at barnala had no jurisdiction to try the offence.7. the learned counsel for the respondent has however, tried to invoke the curative provision of section 531, cr. p. c. and has contended that the error would amount merely to an irregularity curable under section 531, cr. p. c. the application of that section in my view is wholly misconceived. it would apply to only those cases where the trial has proceeded to its termination and the court is satisfied that no failure of justice has been occasioned by the trial having taken place in a wrong court, but where the objection as.....
Judgment:

A.D. Koshal, J.

1. BRIEF FACTS OF THE CASE ARE AS UNDER : - This reference to the High Court under Section 438, Criminal P. C. has been necessitated by an order dated 10-8-1970 of Shri A. C. Rampal, Judicial Magistrate First Class, Barnala being without jurisdiction and, therefore, a nullity.

2. The material facts lie in a short compass : Smt. Sukhvinder Kaur on 5-5-1970, filed a complaint against her husband Sukhdev Singh and some others for an offence of bigamy under Section 494, I. P. C. It was founded on the allegations 'inter alia' that the complainant was a lawfully wedded wife of Sukhdev Singh accused, and that after persistently ill-treating her for some time he had remarried. Smt. Puni-accused No. 3 in the complaint on 22-3-1970. The other accused in the case were said to have abetted that marriage. It is noteworthy that the place of second marriage was wholly kept obscure in the complaint. The complaint was presented in the Court of Shri A. C. Rampal Judicial Magistrate First Class, Barnala who took the case on his file, and after examining some witnesses under Section 202, Criminal P. C. passed the impugned order summoning the accused, in the following terms:

Present : Complainant with counsel : From the perusal of the statement of the complainant and her witnesses examined by her, I find that there are sufficient grounds to proceed against Sukhdev Singh under Section 494, I. P. C., and Jaggar Singh, Mst. Punni, Chand Singh, Mst. Bhajno and Harnam Kaur accused under Sections 494/109, I. P. C. They be summoned on payment of process fee. Copies of the complaint and list of witnesses be furnished. Case to come up on 29-8-1970. Sd. A. C. Rampal, J. M. I. C. Barnala 10-8-1970.

3. Feeling aggrieved the accused have moved this Court by way of revision petition. Notice was issued to the complainant, and in response thereto she also appeared.

4. Arguing the case on behalf of the revision petitioners, Shri Hardev Singh has contended before me that the Court of Judicial Magistrate, First Class, Barnala, had no jurisdiction to try the charge against the accused (petitioners), inasmuch as the second marriage which was. the foundation of the offence of bigamy took place at Himatpura, a village in District Ferozepore. This it is contended, renders the impugned order summoning the accused to stand the trial in that court, null and void.

5. It is at once apparent that Sukhvinder Kaur has wrongly chosen the court of the learned Magistrate, Barnala as the venue of the trial, as the learned Magistrate had no jurisdiction to try the offence.

Section 177, Cr. P. C. prescribes the ordinary rule about jurisdiction and lays down that every offence shall ordinarily be enquired into and tried by a court within the local limits of whose jurisdiction it was committed. Now the offence of bigamy is essentially committed at the place where the second marriage takes place, because it is that marriage which constitutes the offence. In 'Vasantha Krishana Swami v. M. S. Krishna Swami' : AIR1967Mad241 , it was held that the venue of the trial in respect of a case under Section 494, I.P.C. is the court having jurisdiction over the place of second marriage.

In : AIR1955All363 , it was again highlighted that in an offence under Section 494, I.P.C. the only act done by the offender is marrying a second time, and that being so the offence would be wholly committed at the place of second marriage. It was accordingly held that the offence could be tried by the court of the District in which the re-marriage had taken place, and not by the court of the District where the complainant resided.

6. It came in the evidence of Jang Singh P.W. 4, and the fact has also been admitted by the complainant's counsel at the bar at the time of arguments that the re-marriage took place in village Himatpura, District Ferozepore which makes it self-evident that the Court of Magistrate at Barnala had no jurisdiction to try the offence.

7. The learned Counsel for the respondent has however, tried to invoke the curative provision of Section 531, Cr. P. C. and has contended that the error would amount merely to an irregularity curable under Section 531, Cr. P. C. The application of that section in my View is wholly misconceived. It would apply to only those cases where the trial has proceeded to its termination and the court is satisfied that no failure of justice has been occasioned by the trial having taken place in a wrong court, but where the objection as to jurisdiction has been taken up before or at the time of the commencement of the trial, no shelter can be taken behind Section 531, Cr. P. C. To say that, because the complainant has after all instituted his complaint though in a wrong court, it should be allowed to proceed as no prejudice would be occasioned on that account to the opposite side, is virtually to suggest that the complainant is at liberty to choose his own forum, regardless of its having the requisite local jurisdiction, and then to say that the wrong step taken by him should be perpetuated as there is no prejudice caused to the opposite side. In my view Section 531, Cr. P. C. cannot be made an excuse to overlook a material irregularity pertaining to jurisdiction when it is brought to the notice of the court before the commencement of the trial, as is the case herein. See in this connection AIR 1946 Cal 459 - (47 Cri LJ 1020), and AIR 1959 Mys 193 : 1959 Cri LJ 1004.

8. In view of the foregoing, therefore, I entertain no doubt that the intervention of the High Court is necessary to set the matter right, and the order of the court summoning the accused being contrary to law deserves to be quashed without prejudice to the right of the complainant to file her complaint in the appropriate court.

9. With the above recommendation, the file be submitted to the Hon'ble High Court for the impugned order being quashed. The parties are directed to appear there on 1-9-1972.

ORDER

A.D. Koshal, J.

1. For the reasons recorded by the learned Additional Sessions Judge, his recommendation is accepted and the order passed by the learned Magistrate on the 10th of August, 1970, and impugned in these proceedings, is quashed but without prejudice to the right of the complainant-respondent to file her complaint in the Court having jurisdiction.


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