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Balkrishnan Nair Vs. Sulochana Amma - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1962CriLJ40
AppellantBalkrishnan Nair
RespondentSulochana Amma
Cases Referred and Jesukhlal v. Prabhaben
Excerpt:
- - the magistrate overruled the objection on the ground that since malappuram as well as kozhikode (? naduvattam) are within the kozhikode district, the petitioner is at liberty to move either of the sub-divisional magistrates as per section 488(8) of the criminal procedure code. i think the sub-section clearly requires some provision excluding jurisdiction in the rest of the district, which is either express or must be inferred by necessary implication......12 reads;12(1) the state government may appoint as many persons as it thinks fit, besides the district magistrate, to be magistrates of the first, second or third class in any district outside the presidency-towns; and the state government or the district magistrate, subject to the control of the state government may, from time to time, define local areas within which such persons may exercise all or any of the powers with which they may respectively be invested under this code.2. except as otherwise provided by such definition, the jurisdiction and powers of such persons shall extend throughout such district.reading the section as a whole it is clear that the mere definition of the territorial jurisdiction of a magistrate cannot by itself prevent him from exercising jurisdiction in.....
Judgment:
ORDER

Anna Chandy, J.

1. The Revision Petitioner is the respondent in a proceeding for maintenance under Section 488, Criminal Procedure Code, pending before the Malappuram Sub-Divisional Magistrate. He is a resident of Naduvattam and that is also the place where he last resided with his wife. As Naduvattam is within the territorial jurisdiction of the Sub-Divisional Magistrate, Kozhikode, he contended that the Sub-Divisional Magistrate, Malappuram was not competent to conduct the proceedings. The Magistrate overruled the objection on the ground that since Malappuram as well as Kozhikode (? Naduvattam) are within the Kozhikode District, the petitioner is at liberty to move either of the Sub-Divisional Magistrates as per Section 488(8) of the Criminal Procedure Code.

2. The order of the learned Magistrate, is, I think, correct. Section 488(8) is that:

'Proceedings' under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife, or as the case may be, the mother of the illegitimate child.

The language is quite clear that the wife can proceed against her husband under Section 488 in any of the districts where he resides, or is, or where he last resided with her. This wide choice of forum, given presumably as a concession to the neglected wife, is not to be narrowed by any unduly strict interpretation of the term district. The aggrieved person in this case who is living with her parents at Tirur tound it easy to move the Malappuram Magistrate and she can do so since Malappuram and Naduvattam are within the same District, Kozhikode.

3. It is however contended by the learned Counsel for the revision petitioner that Section 488(8) is controlled by Section 12 of the Criminal Procedure Code and since Naduvattam is not one of the areas specified in the notification published in the Kerala Gazette, Part I dated 1st September, 19591 which defines the territorial jurisdiction of the Sub Divisional Magistrate, Malappuram, he has no jurisdiction to entertain the proceedings. The said notification is to the effect that Government is pleased to 'establish a Sub-Divisional Magistrate Court at Malappuram in the District of Kozhikode with effect from the 17th day of August, 1959, and fix the jurisdiction of the said Sub-Division to comprise the jurisdiction of the Sub-Magistrates of Manjeri and Tirur, that is, the local limits of the following police stations:....' Fourteen stations are mentioned including Tirur but not Naduvattam. However having regard to Section 12 of the Criminal Procedure Code, I do not think that the said notification by itself will have the effect of rendering the Sub-Divisional Magistrate at Malappuram incompetent to conduct the present proceedings.

Section 12 reads;

12(1) The State Government may appoint as many persons as it thinks fit, besides the District Magistrate, to be Magistrates of the first, second or third class in any district outside the presidency-towns; and the State Government or the District Magistrate, subject to the control of the State Government may, from time to time, define local areas within which such persons may exercise all or any of the powers with which they may respectively be invested under this Code.2. Except as otherwise provided by such definition, the jurisdiction and powers of such persons shall extend throughout such district.

Reading the section as a whole it is clear that the mere definition of the territorial jurisdiction of a Magistrate cannot by itself prevent him from exercising jurisdiction in other areas of the same district unless the order fixing his territorial jurisdiction does either expressly or by necessary implication exclude the other areas from his jurisdiction.

4. I am fortified in this view by several decisions of the various High Courts. In Gulabrao v. Emperor AIR 1935 Bom 409, while considering the combined effect of Section 12(1) and (2) His Lordship Beaumont, C.J., observed that:

Sub-section (2) seems to me to be a saving clause which prevents the mere carving up of the district into areas amongst Magistrates from having the effect of depriving Magistrates of jurisdiction in the whole district, unless the order defining the areas so provides. It is obvious to my mind that the mere definition of areas cannot be taken as a provision excluding jurisdiction in the rest of the district for if it did, Sub-section (2) would be meaningless. I think the Sub-section clearly requires some provision excluding jurisdiction in the rest of the district, which is either express or must be inferred by necessary implication.

This decision of the Bombay High Court was followed in several later cases among which may be mentioned State Government M.P. v. Krishnadas AIR 1955 Nag 189, K.N.N. Ayyangar v. State AIR 1954 Madh Bha 101, Radhey v. Girwar and Parichhan Singh v. Heman Singh : AIR1961Pat94 .

5. A different construction of Section 12 seems to have been given in the following cases cited by the learned Counsel for the revision petitioner viz., Syed Ali v. Emperor AIR 1938 Nag 448, Kunj Behari Lal v. Lanua AIR 1921 All 123 and Jesukhlal v. Prabhaben AIR 1953 Sau 104. The decision of the Nagpur High Court does not appear to have been followed in the later Division Bench decision-of the same Court reported in AIR 1955 Nag 189 and the Allahabad decision was considered in AIR 1935 Bom 409 and the construction put upon Section 12 was not considered to be the proper one by Beaumont, C.J. In AIR 1953 Sau 104 (a case under Section 488, Criminal Procedure Code) it wag held that as the Saurashtra Government had prescribed the local limits of the jurisdiction of the First Class Magistrate, Rajkot where the proceedings were initiated and the 1st Class Magistrate Gondal (the place of residence of the husband as also the place where the couple last resided) the application should have been filed in the latter Court. Though Section 12 of the Criminal P.C. was referred to, the scope of it was not considered. The High Court confirmed the order of the lower Court on the ground that the reasons given by the lower Court are correct. However the report does not specify what those reasons were.

6. I therefore hold that the Malappuram Sub-Divisional Magistrate has jurisdiction to conduct the prosecutor. It must be mentioned here that both the learned Counsel and the public prosecutor to whom notice was issued assure me that the only notification defining the jurisdiction of the Sub-Divisional Magistrate of Malappuram is the one referred to and the Public Prosecutor was supporting the position that the Magistrate, Malappuram had jurisdiction to try the case.

7. In the result the revision petition is dismissed.


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