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Ambalal Narandas Patel Vs. Dhiben Dahyabhai Patel - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Revn. Appln. No. 260 of 1960
Judge
Reported inAIR1963Guj91; 1963CriLJ594; (1963)GLR501
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 488, 488(8) and 531
AppellantAmbalal Narandas Patel
RespondentDhiben Dahyabhai Patel
Appellant Advocate M.L. Bhaleja, Adv.; H.M. Choksi, Govt. Pleader
Respondent Advocate P.V. Nanavati, Adv.
DispositionRevision dismissed
Cases ReferredState v. Tavara Naika
Excerpt:
.....word 'last' before the word 'resided' would clearly show that the idea of the distinction between permanent residence and casual residence is ignored for this purpose, although this idea is taken into account at the beginning of the section. the unava court only would have jurisdiction and the ahmedabad court would have no jurisdiction on this ground as well as on the ground that the husband is admittedly a resident of unava. -no finding, sentence or order of any criminal court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, subdivision or other local area, unless it appears that such error has in fact occasioned a failure of justice. therefore in a..........contended that in this case the husband is a resident of unava and he also last resided with his wife at unava and therefore the ahmedabad court had no jurisdiction but only the unava court. in the application under section 488, criminal procedure code, the husband's residence was shown as unava. it is also stated in the application that the husband and wife last resided together as husband and wife at unava. it is, therefore, contended that the unava court only had jurisdiction and not the ahmedabad court.3. in answer, the learned counsel for the opponent contends that residence means permanent residence, and not temporary or casual residence. it is admitted that in the application under section 488, criminal procedure code, the husband's place of residence is shown as unava. but the.....
Judgment:
ORDER

V.B. Raju, J.

1. The only point urged in this criminal revision application, which arises out of anorder passed by the City Magistrate, 5th Court, Ahmedabad, under Section 488, Criminal Procedure Code, is that that Court had no jurisdiction,

2. Section 488 (8), Criminal Procedure Code, provides as under :-

'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.'

It is contended that in this case the husband is a resident of Unava and he also last resided with his wife at Unava and therefore the Ahmedabad Court had no jurisdiction but only the Unava Court. In the application under Section 488, Criminal Procedure Code, the husband's residence was shown as Unava. It is also stated in the application that the husband and wife last resided together as husband and wife at Unava. It is, therefore, contended that the Unava Court only had jurisdiction and not the Ahmedabad Court.

3. In answer, the learned counsel for the opponent contends that residence means permanent residence, and not temporary or casual residence. It is admitted that in the application under Section 488, Criminal Procedure Code, the husband's place of residence is shown as Unava. But the contention is that the husband and wife last resided at Ahmedabad and not at Unava, although it is admitted that the wife was driven away at Unava, where she was beaten. His contention is that the couple paid casual visits to Unava, while they permanently resided at Ahmedabad.

4. Under Sub-section (8) of Section 488, Criminal Procedure Code, proceedings may be taken against the husband in any district where he resides or is, or where he last resided with his wife. A distinction is made between the District where the husband resides and the place where the husband is. The idea of permanent residence and a casual or temporary residence is therefore implicit in this expression, namely, 'where he resides or is', but the next expression is 'where he last resided with his wife'. In my humble opinion, this expression does not recognise the distinction between the permanent residence and casual residence. There can be only one permanent residence, and the words 'last resided' would be inappropriate, if the words 'last resided' have reference to permanent residence. The very use of the word 'last' before the word 'resided' would clearly show that the idea of the distinction between permanent residence and casual residence is ignored for this purpose, although this idea is taken into account at the beginning of the section. The use of the past tense, namely, 'resided' also would tend to show that the word has reference to any type of residence and not necessarily to permanent residence. In this case, even according to the wife, she last stayed with her husband at Unava, and, therefore, the Unava Court would have jurisdiction. The Unava Court only would have jurisdiction and the Ahmedabad Court would have no jurisdiction on this ground as well as on the ground that the husband is admittedly a resident of Unava. In the application, the husband's place of residence is given as Unava. It is however contended that there is no evidence to show that the husband didnot have permanent residence at Ahmedabad. It is for the applicant to prove that the husband had a permanent residence at Ahmedabad. She has not alleged in her application that the husband had a permanent residence at Ahmedabad nor has she led any evidence to prove that the husband had a permanent residence at Ahmedabad. Therefore only the Unava Court would have jurisdiction and not the Ahmedabad Court.

5. But Section 531, Criminal Procedure Code, provides thus: -

'No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, subdivision or other local area, unless it appears that such error has in fact occasioned a failure of justice.'

In view of the provisions of this section and the decision of the Supreme Court in Ram Chandra Prasad v. State of Bihar, AIR 1961 SC 1629, I must dismiss the revision application. The learned counsel for the applicant, however, relies on State v. Tavara Naika, AIR 1959 Mys 193, where it was held as under:-

'On a plain reading of Section 531 it would appear that the curative provisions of that section would extend alto to a trial which has taken place to a wrong Sessions Division; therefore in a case where the trial has proceeded to its conclusion and the Court is satisfied that no failure of justice has been occasioned by the trial having taken place in a wrong Sessions Division, the error may amount merely to an irregularity curable under Section 531 of the Criminal Procedure Code. But at the same time, the fact that the curative provisions of Section 531 may be available at a later stage, should not be 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.'

That was a case of a husband, who filed a written statement and also gave evidence in the proceedings. But in the case before me the husband did not go into the witness box and he merely filed a written statement. When the husband does not go into the witness box, much importance cannot be attached to his statement in the written statement.

6. I, therefore, dismiss the revision application.


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