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Bai Meghi Sajan and ors. Vs. Harijan Neja Khima and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1971CriLJ717; (1971)GLR469
AppellantBai Meghi Sajan and ors.
RespondentHarijan Neja Khima and anr.
Cases ReferredHigh Courts. In Gulabrao v. Emperor A.I.R.
Excerpt:
- - 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. shah is well founded......for want of jurisdiction dated 9-3-1970, be set aside, and for giving a further direction to the learned magistrate that he should entertain the application and dispose it of in accordance with the law.2. the facts giving rise to this reference, briefly stated, are as under:the petitioners filed a maintenance proceeding under section 488 of the cr.pc against opponent no. 1. petitioner no. 1. bai meghi had formerly married one mepa bhima, brother of opponent no. 1 and through the said mepa, she had begotten two daughters-kisu & mangu- petitioners nos, 2 and 3. on the death of mepa, she contracted remarriage with opponent no. 1. according to her opponent no. 1 is her husband and she is his married wife. they both resided as husband and wife last as masitala in gondal taluka. but due to.....
Judgment:
ORDER

J.M. Sheth, J.

1. This is a reference made by the learned Additional Sessions Judge, Rajkot District, Gondal, Under Section 438 of the Criminal P.C., recommending that the order passed by the learned Judicial Magistrate, First Class, Jetpur in Misc. Criminal Application No. 19 of 1969 dismissing the application filed by the petitioners against opponent No. 1 (husband of petitioner No. 1) for want of jurisdiction dated 9-3-1970, be set aside, and for giving a further direction to the learned Magistrate that he should entertain the application and dispose it of in accordance with the law.

2. The facts giving rise to this reference, briefly stated, are as under:

The petitioners filed a maintenance proceeding Under Section 488 of the Cr.PC against opponent No. 1. Petitioner No. 1. Bai Meghi had formerly married one Mepa Bhima, brother of opponent No. 1 and through the said Mepa, she had begotten two daughters-Kisu & Mangu- petitioners Nos, 2 and 3. On the death of Mepa, she contracted remarriage with opponent No. 1. According to her opponent No. 1 is her husband and she is his married wife. They both resided as husband and wife last as Masitala in Gondal Taluka. But due to the illtreatment meted out to her by him (husband) she had to go and stay at Jetpur. She herself had no means to maintain herself and her two daughters. Her husband has refused and neglected to maintain her and her daughters. She has, therefore, claimed maintenance at a particular rate for herself and her two daughters.

3. Opponent No. 1, amongst other contentions, raised a contention regarding jurisdiction. According to him, as the parties last resided together at Masitala village, Gondal Taluka, as stated by the petitioners, Jetpur Court had no jurisdiction to hear this application. The learned Magistrate accepted that contention and passed the impugned order.

4. Against that order, the original petitioners filed Criminal Revision Application No. 26 of 1970 in the Court of Additional Sessions Judge, Rajkot District, Gondal, and the learned Additional Sessions Judge finding that this order passed by the learned Magistrate was erroneous, has made the aforesaid recommendations. According to the learned Additional Sessions Judge, in view of the provisions of Sub-section (8) of Section 488 of the Criminal P.C., Jetpur Court has also jurisdiction to hear this application as admittedly, Jetpur and Gondal are situated in the same judicial district of Rajkot. They are also within the same Sessions Division of Rajkot and Sub-division of Gondal. According to the learned Additional Sessions Judge, the learned Magistrate has committed an error in distinguishing the case of the Bombay High Court cited before him. That decision has considered the provisions of Sections 12 (1) & 12 (2) of the Criminal P.C. According to the learned Additional Sessions ' Judge, the view taken by the Bombay High Court in Shantabai v. Vishnupant : AIR1965Bom107 , is the correct view in view of the provisions of Section 12 (1) and (2) and Section 488 (8) of the Criminal P.C., as there is no express notification issued by the competent authority which has restricted the jurisdiction of the Magistrate expressly or by necessary implication to a Particular local area.

5. Mr. Deepak M. Shah, appearing for the petitioner urged that, the order passed by the learned Magistrate was erroneous and it could not be sustained in law. He invited my attention to the provisions of Section 12 (2) and Section 488 of the Criminal P.C. in support of his argument. He also invited my attention to an unreported decision of this Court in Criminal Revision Application No. 437 of 1967, D/- 6-8-1969 (Gui). He also relied upon the aforesaid Bombay decision and the decision of Kerala High Court in Balkrishna Nair v. Sulochana Amma 1962 (1) Cri LJ 40 (Ker).

6. Before adverting to the authorities cited at the Bar, it will be proper to refer to Section 488 (8) of the CrIPC. which is very material for our purposes. It reads:

(8) 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.

A plain reading of this Sub-section (8) of Section 488 of the Criminal P.C. indicates that such proceedings Under Section 488 can 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 does not state that such proceedings can be taken within the jurisdiction of the Court or place where he resides or is, .... The term of wide connotation viz. 'district' has been used. It. therefore, indicates that such proceedings can be taken in any district where he resides or is, or ....

7. Section 12 (1) of the Criminal P.C. empowers the State Government tc appoint as many persons as it thinks fit besides the District Magistrate, to be Magistrate of the first, second or third class in any district and the Sessions Judge has been empowered subject to the control of the High Court to define local areas from time to time within which such persons may exercise all or any of the powers with which they may respectively be invested under this Code. 8. Sub-section (2) of Section 12 of the Criminal P.C., which is material for our purposes, reads:

(2) Except as otherwise provided by such definition, the jurisdiction and powers of such persons shall extend throughout such district.

It, therefore, appears that in the absence of words restricting the jurisdiction expressly or by necessary implication the Jurisdiction and powers of such Magistrates appointed shall extend throughout such district.

8. It is admitted by Mr. Chhaya, learned Assistant Government Pleader that there is no such notification issued which restricts the jurisdiction of such Magistrates to a particular local area either expressly or by necessary implication suggesting thereby that it does not extend throughout such district.

9. In the aforesaid Bombay decision, Kotwal, J., (as he then was), has observed:

In interpreting word 'district' in Section 488 (8) of the Code, it is not only the word 'district' which one must have regard to, but the entire expression 'any district where he resides'. The express use of word 'district' should not be given any meaning different from normal connotation of that word and, in view of express use of words 'any district where he (husband) resides,' it cannot be limited only to a Court within that district within whose jurisdiction husband resides.

The object of Section 488 appears to be clear enough: where a husband and wife have fallen out and the wife is required to make an application either for herself or for her child, she should not be put to the harassment of going to the very place where the husband is at the time of the application residing. If that were so, the recalcitrant husband who has fallen out with the wife could move about from place to place and thus make it impossibe for the wife to choose a place in which to prefer her application for maintenance. At the same time, it is clear that a fractious woman should not be enabled to harass her husband by making an application at any place very far from the place where the husband resides after their separation, and having regard to these rival claims of the two spouses the legislature limited the jurisdiction Under Section 488 to the district where the husband resides, that is to say, the jurisdiction was given to any magistrate in the district so long as the husband was resident in the district over which the magistrate held jurisdiction.

In the instant case, the husband resided within the District of Rajkot. The Court at Jetpur is situated in that district. It is, therefore, evident that the Judicial Magistrate at Jetpur had jurisdiction to entertain this proceeding as the husband resided within the Rajkot district.

10. At page 108, in para 5, the provisions of Section 12 of the Criminal P.C. have been considered and the following observations have been made:

In this respect it may be pointed out that the exercise of jurisdiction Under Section 488 is limited to a Presidency Magistrate or a Magistrate of the first class and a first class Magistrate's jurisdiction is defined by Section 12 of the said Code. The jurisdiction Under Section 12 (1) is conferred upon a Magistrate districtwise and it is with reference to that jurisdiction that it seems to me the provisions of the other sections of the Code will have to be construed, particularly Section 488 (8).

11. A single Judge of Kerala High Court in 1962-1 Cri LJ 1 (Ker) (Supra), has taken the same view. After referring to Section 488 (8) of the Criminal P.C., the following pertinent observations have been made at pages 40 and 41:

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 found it easy to move the Malappuram Magistrate and she can do so since Malappuram and Naduvattam are within the same District Kozhikode,

It is however, contended by the learned Counsel for the revision petitioner that Section 488 (8) is controlled by Section 12 of the Criminal P.C. and since Naduvattam is not one of the areas specified in the notification published in the Kerala Gazette, Part I, dated 1st September, 1959, which defines the territorial iurisdiction 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 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

After refering to Sections 12(1) and 12(2) of the Criminal Procedure Code, the observations made therein are:

Regarding 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 on 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.

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

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.

I am in respectful agreement with this principle enunciated by Beaumont, C. J.

13. In Criminal Revn. Appln. No, 437 of 19G7. D/- 6-8-1969 (Guj) by N. G. Shelat. J., a similar view has been taken. The relevant observations made therein are as under: -

The contention in the Courts below, and faintly repeated before this Court, was that the Court of the learned Magistrate at Jamnagar had no jurisdiction to entertain the application inasmuch as the parties last resided at Khambhalia and not at Jamnagar. The Court at Khambhalia has, therefore, jurisdiction to hear the application Under Section 488 of the Criminal P.C. The provisions contained in Sub-section (8) of Section 488 of the Criminal P.C. relate to the jurisdiction of the Court in which proceedings Under Section 488 of the Code can be taken. It runs thus:

X X X X XThe words used 'in any district where he resides or is, or where he last resided with his wife', contemplate not the place but the district in which they last resided. It does not refer to 'any place' so as to give jurisdiction to the Court within which that place is situated as in this case at Khambhalia. The words 'in any district where he resides or is, or where he last resided with his wife' came to be considered in the case : AIR1965Bom107 .

That Bombay view has been preferred by Shelat, J.

14. Taking into consideration the clear language of Section 12 (1) and (2) and Section 488 of the Criminal P.C. and the aforesaid decisions, it is evident that the submission made by Mr. Shah is well founded. Mr. Chhaya, appearing for the State also fairly conceded to that position. It is, therefore, evident that the order passed by the learned Magistrate dismissing the application for want of jurisdiction cannot be sustained. Reference has, therefore, to be accepted.

15. Reference is accepted. The order passed by the learned Magistrate, dated 9-3-1970 dismissing the miscellaneous Criminal Application No. 19 of 1969 for want of jurisdiction is set aside and he is directed to proceed further with this application and dispose it of, in accordance with law. Rule is made absolute.


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