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Ramnath Sardar Vs. Rekharani Sardar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1975CriLJ1139
AppellantRamnath Sardar
RespondentRekharani Sardar
Cases ReferredShantabai v. Vishnupant
Excerpt:
- .....the first point urged by mr. das gupta is that in view of the provision of section 488 of the code of criminal procedure the magistrate at sealdah had no jurisdiction to deal with the case because the evidence shows that the parties lived together for the last time within the jurisdiction of a magisrate at alipbre, 24-parganas. the relevant portion of section 488 of criminal procedure code will appear in sub-section (8) thereof which runs as follows: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 above sub-section says that the wife-petitioner coming under section 488 for maintenance may start proceedings for such maintenance.....
Judgment:
ORDER

R. Bhattacharya, J.

1. This revisional application has been filed by Rama Nath Sardar, the petitioner before this Court who was the second party in the court below against the order passed under Section 488 of the Code of Criminal Procedure by the Police Magistrate at Sealdah, 24-Parganas, upon an application filed by Rekha Rani Sardar who was the first party before him.

2. In short, the allegation of the first party Rekha Rani Sardar, the wife of Rama Nalth Sardar, is that she was married to Rama Nath and in their wedlock two children were born. At first a female child died and thereafter a male child was born. He is of course alive. Rama Nath is a manufacturer of paper boxes. The allegation is that he spends a lot of money for his mistress. The further allegation is that Rama Nath assaults and ill treats Rekha Rani and due to the habitual illtreatment she had to take shelter in the house of her parents to get rid of the assaults. She was driven out by Ramanath from his house and she had to leave the place of the husband with the tiny daughter who was aged about 7 or 8 months. At that time she was also pregnant. The husband subsequently gave an undertaking in writing that he would treat his wife well and would also sever all connections with his mistress. Rama Nath, however, did not keep his word and he did not take his wife and child back to his own place. The story of the first party is that she has been compelled to maintain herself and the child by begging. In these circumstances, the wife prayed for an order upon the husband to pay a sum of Rs. 100/- for her maintenance and Rs. 50/- for the child. The husband, Ramnath filed a written objection to the petition. His defence was that the Police Magistrate at Sealdah had no jurisdiction to deal with the case, that he never neglected or assaulted or abused the wife, that he had no mistress as alleged that his income did not exceed Rs. 125/- per month and that his wife instituted the case with false allegations at the instance of her mother, brother and other relations. Rama Nath has further stated in the objection that he wrote a letter under pressure that he was willing to take the petitioner to his place.

3. The learned Magistrate found that he had jurisdiction to hear the case. He also held that there were assaults and illtreatment by the husband upon the wife and that the petitioner-wife had been driven away by Rama Nath. The learned Magistrate did not believe that the husband was willing to take back the wife. With regard to the allegation about keeping the mistress it was found that although he had mistress previously his subsequent living in adultery with that mistress had not been proved. On consideration of the evidence and the circumstances his finding was that the wife was justified according to law to demand maintenance and he directed the second party-husband to pay a sum of Rs. 70/- for the wife and a sum of Rs. 30/- for the child towards their maintenance. The order was to take effect from the month of February, 1973,

4. Mr. Das Gupta appears on behalf of the petitioner Rama Nath and Mr. Sanyal for Rekha Rani, the Opposite Party, before this Court. The first point urged by Mr. Das Gupta is that in view of the provision of Section 488 of the Code of Criminal Procedure the Magistrate at Sealdah had no jurisdiction to deal with the case because the evidence shows that the parties lived together for the last time within the jurisdiction of a Magisrate at Alipbre, 24-Parganas. The relevant portion of Section 488 of Criminal Procedure Code will appear in Sub-section (8) thereof which runs as follows:

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 above sub-section says that the wife-petitioner coming under Section 488 for maintenance may start proceedings for such maintenance against her husband or the father of the illegitimate child, as the case may be, in any district where he resides or where he is at the time of the institution of the proceedings or where he last resided with the petitioner. This provision clearly says and there is no ambiguity that the proceedings under Section 488, Criminal Procedure Code must be taken in the district in which the opposite party resides or is or last resided with the petitioner. Such proceedings cannot be started in any other district than the district referred to in Sub-section (81 of Section 488. In the instant case there is no denying the fact that the petitioner and the opposite party both lived together at Tapsia within the Tollygunge Police Station which falls under the jurisdiction of the Police Magistrate at Alipore in the Sadar Sub-Division in the District of 24-Parganas. According to the evidence which cannot be disputed, Ramnath used to keep his wife at another house just across the road at Tapsia the said house is within Beniapukur P. S. which falls under the jurisdiction of the Police Magistrate at Sealdah, 24-Parganas. According to the learned Magistrate when the husband kept his wife within the jurisdiction of the Sealdah court that amounted to residing together and as such he held technically that the parties resided within the jurisdiction of his court. The second branch of the decision of the learned Magistrate is that even if it is assumed that the parties did not last reside together within the jurisdiction of the Court, in view of Section 531 of the Criminal Procedure Code the proceedings taken up by him would not be illegal.

5. The learned Magistrate, I must say, was not correct in interpreting Section 531. That section says that no finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the enquiry, trial or other proceedings in course of which it was arrived at or passed took place in a wrong Sessions Division, District or Sub-Division or other local area unless it appears that the error has in fact occasioned a failure of justice. This section has got to be applied after the decision or finding or order is arrived at by any Magistral or a criminal Court in a wrong jurisdiction. If any objection to the territorial jurisdiction is taken in any proceeding or case before any Magistrate it would be the duty of the Magistrate to see whether he had according to law territorial jurisdiction to deal with the same. He cannot take resort to Section 531 and assume jurisdiction which will not be legal. This section, therefore is applicable after the decision or finding is made by a higher Court and not by the trying Magistrate himself, In the instant case the learned Magistrate's duty was to see whether he had territorial jurisdiction or not when that objection was taken up by a party. In this connection I may refer to the decision in the case of Radharani v. Rahim Sardar decided by a Division Bench of this Court reported in AIR 1946 Cal 459 : (47 Cri LJ 1020). The principle underlying Section 531 has been dealt with in paragraph 6 of the judgment and I quote below the relevant portion.

In our opinion Section 531 cures irregular proceedings wrongly held in a wrong local area unless it appears that the error as to territorial jurisdiction has in fact occasioned a failure of justice. Section 531 does not entitle a Magistrate to proceed with a trial in the wrong local area with his eyes open to the fact that he had no territorial jurisdiction. It does not in fact confer a jurisdiction on the Magistrate.

In the instant case I shall now see whether the learned Magistrate below had territorial jurisdiction to dispose of the case. In the petition under Section 488 of the Criminal Procedure Code the address of the opposite party has been given as premises No. 9, Ultadanga Main Road, P. S. Ultadanga. It is stated in that application that Rama Nath lives in a Masjid. In the service return it appears that the notice of the case was served upon Rama Nath Sardar at the said address personally and that he received the same under his own signature. There is no dispute before me as to the correctness of the service return. It is admitted before us that at the premises where the the service was effected Rama Nath has his business and he carries his business there. That address is again within P. S. Ultadanga and within the jurisdiction of the Police Magistrate at Sealdah, 24-Parganas, According to Sub-section (8) of Section 488 there can be no doubt to hold that Rama Nath was there and the word 'is' referred to in Sub-section (8) of Section 488 is applicable. His presence for carrying on his business at the said address certainly confers jurisdiction upon the Police Magistrate, Sealdah which is within the District of 24-Parganas.

6. Mr. Das Gupta has contended at the very outset, as I already indicated, that when both the parties last resided at Tapsia which was within the jurisdiction of the Police Magistrate at Alipore no proceedings could have been started within the jurisdiction of the Police Magistrate at Sealdah. This argument, I am afraid, is not acceptable in view of the clear provision appearing in Sub-section (8) of Section 488 of the Criminal Procedure Code. It has been already found as discussed earlier that the husband was and had his business place within the jurisdiction of the Sealdah Court at the time of starting the proceeding. Similarly the evidence is that the husband used to keep his wife during the day time at a particular place he secured within the jurisdiction of the Magistrate at Sealdah and during the night she was brought to the place within the jurisdiction of the Magistrate at Alipore, In these circumstances, the place appointed by the husband for keeping the wife may be stated to be a place where the husband was as required in Sub-section (8) of Section 488 of the Code of Criminal Procedure, In the second place it has been stated in that Sub-section (8) that proceedings could be started in any district where the opposite party resides or is or where the parties last resided together. Nowhere has it been indicated that the proceedings should be instituted at the criminal court within whose jurisdiction the opposite party resides or is, or both the parties resided last. The word 'district' is unqualified. Therefore, the aggrieved wife can certainly start proceedings under Section 488 in any court within the district where the opposite party resides or is or the parties last resided.

7. In this connection I may refer to Section 12 of the Criminal Procedure Code which speaks about the local limits of the jurisdiction of the Subordinate Magistrates. The section is quoted below:

Subordinate Magistrates. Local limits of their jurisdiction - (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 Dist. 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 jurisditcion and powers of such persons shall extend throughout such district.

Along with this section I may mention Section 177, Criminal Procedure Code. This section says that every offence shall ordinarily be enquired into and tried by a court within the local limits of whose jurisdiction it was committed. Section 177 is included in Chapter XV of the Code which deals with the jurisdiction of the criminal courts in enquiries and trials. Section 177 speaks about enquiry and trial in respect of any offence. 'Offence' has been defined in Section 40. According to this definition, offence means any act or omission made punishable by any law for the time being in force. Whereas in cases of offences there is the provision for trial or enquiry by a Magistrate within whose local jurisdiction it was committed, in Sub-section (8) of the Section 488 there is the absence of any indication that proceedings under that section should be started in a court within whose local jurisdiction the opposite party resides or is or the parties resided last. The intention of the legislature that the proceedings 'under Section 488 can be started within any part of the district referred to in Sub-section (8) of Section 488 is clear. It means such proceedings can be started in any portion of the district as mentioned there. In this connection I may refer to a decision of the Bombay High Court in the case of Shantabai v. Vishnupant : AIR1965Bom107 . This question of jurisdiction arose in that case and Kotval, J., after consideration from different angles of reasonings held that a proceeding for maintenance under Section 488, Criminal Procedure Code would be started anywhere in the district as mentioned in Sub-section (8) of Section 488, Criminal Procedure Code. I quote the relevant portion of his judgment below;

It seems to me that the interpretation which the learned Sessions Judge has put upon the word 'district' is not correct. It is not only the word 'district', which one must have regard to, but the entire expression 'any district where he resides'. There appears to be no reason why the express use of the word 'district' by the Legislature should be given any meaning different from the normal connotation of that word and I can see no reason at all why in spite of the use of the words any district where he (the husband) resides, it should be limited only to a Court within that district within whose jurisdiction the husband resides'. This decision has been arrived at in the way I have read the Section 488 of the Criminal Procedure Code. In view of my discussion above, I must, therefore, hold that even if it is assumed that both the parties last resided together within the jurisdiction of the Police Magistrate at Alipore, the first party-wife had ample right to start proceedings at the court of the Police Magistrate at Sealdah because it is within the district of 24-Parganas where they last resided. The point of Mr. Das Gupta raised in this case is, therefore, unacceptable.

8. It has been next argued by Mr. Das Gupta that the husband offered at the time of hearing to maintain the wife and therefore, the learned Magistrate was wrong in passing the order of maintenance against him. I fail to appreciate this branch Of argument because the learned Magistrate was already satisfied from the evidence and the circumstances that the husband had neglected to maintain the wife, that there were practically habitual assaults upon the wife which could not be tolerated by any reasonable wife as it was dangerous for her life and health and that in fact he had always been refusing to maintain the wife and the child. Mere promise to maintain in future will not be enough to nullify the effect of the order passed by the learned Magistrate.

9. Lastly, Mr. Das Gupta submitted that the amounts to be paid by the husband to the wife and the child are excessive. The learned Magistrate has considered the evidence adduced in this case and he has been satisfied that the husband earns no less than a sum of Rs. 150/- per month. According to him out of the business the husband earns more than that amount. I, however, do not think that there is any justification to reduce the amount assessed by the learned Magistrate.

10. In the result, the application fails and the Rule stands discharged.


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