[Cites 29, Cited by 0]
Gujarat High Court
Amin Bhanjibhai Samidas vs Patel Dashrathbhai Mafatlal on 24 April, 2026
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Reserved On : 25/03/2026
Pronounced On : 24/04/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2520 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
✔
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AMIN BHANJIBHAI SAMIDAS
Versus
PATEL DASHRATHBHAI MAFATLAL & ORS.
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Appearance:
MR RAJESH K SAVJANI(2225) for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 2,4,9
MR MRUNAL R DHOLARIA(11915) for the Opponent(s)/Respondent(s) No.
10,7,8,9
MR TEJAS P SATTA(3149) for the Opponent(s)/Respondent(s) No. 1,3,5,6
MR. BHAUMIK DHOLARIYA(7009) for the Opponent(s)/Respondent(s) No.
10,7,8
MR. TIRTHRAJ PANDYA, APP for the Opponent(s)/Respondent(s) No. 11
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
CAV JUDGMENT
Table of Contents
INTRODUCTION...............................................................................................2
BRIEF FACTS....................................................................................................2
SUBMISSIONS OF THE APPELLANT..............................................................4
SUBMISSIONS OF THE RESPONDENT.........................................................8
Jurisdictional issue......................................................................................12
Whether Patan Court had the territorial jurisdiction................................14
Leave under Section 198(c) of the CRPC...............................................18
Section 201 and 461 of the CRPC..........................................................20
Section 462 of the CRPC: Proceedings at a wrong place......................22
Merits of the Appeal.....................................................................................27
CONCLUSION.................................................................................................30
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INTRODUCTION
1. This Appeal poses a narrow yet significant question of
whether a Criminal Court, upon finding absence of territorial
jurisdiction, can nevertheless proceed to examine the
matter on merits, and whether such adjudication vitiates the
proceedings.
2. The background of this issue is that a Complaint alleging
bigamy under Section 494 of the Indian Penal Code came
to be filed, where both jurisdiction of the Court and proof of
a second marriage are seriously contested.
3. Stated briefly, the present challenge is to a decision where
the Ld. Court observes that it does not possess the relevant
territorial jurisdiction to adjudicate the dispute, however
proceeds to adjudicate the same on merits. Consequently,
the tenability of such a judgment has been questioned
before this Court.
BRIEF FACTS
4. The present Complaint had been filed by the father of the
wife of Respondent No.1, alleging commission of offences
punishable under Sections 494 and 114 of the Indian Penal
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Code, 1860 ("IPC"), i.e., bigamy. During the pendency of
the Appeal, Respondent Nos. 2, 4 and 9 expired, and
accordingly, the Appeal stood abated qua the said
Respondents.
5. The Complainant, being the father of the victim, instituted a
Criminal Complaint dated 16th July 1998 before the Ld. 2nd
Additional Senior Civil Judge and Judicial Magistrate First
Class, Patan, alleging that his daughter was married to the
Respondent No. 1, on 18 th May 1989, at Village Malund,
District Patan, in accordance with customary rites and
ceremonies. The said victim, being the wife of Respondent
No.1 and daughter of the Complainant. The said parties,
i.e. the victim and Respondent No. 1 also have a female
child, namely Vidhi, was born on 29th September 1991.
6. Thereafter, upon obtaining leave of the Court, the father of
the victim filed a complaint before the Court of the Ld. 2 nd
Additional Senior Civil Judge and Judicial Magistrate First
Class, Patan, which came to be registered as Warrant Trial
Criminal Complaint No. 1847 of 1998 against the Accused
for the aforesaid offences.
7. Upon appreciation of the oral and documentary evidence on
record, the Ld. Trial Court, by its judgment and order dated
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19.12.2006, was pleased to acquit the Accused of the
offences punishable under Sections 494 and 114 of the
Indian Penal Code, 1860, on merits, while holding that the
said Court had no jurisdiction to adjudicate the present
dispute.
SUBMISSIONS OF THE APPELLANT
8. Ld. Counsel for the Appellant has submitted that the victim
was driven out of her matrimonial home on 28 th April 1996
along with her minor daughter, Vidhi. It is the case of the
complainant that thereafter the victim, along with her child,
took shelter at her parental home situated at Malund. It is
further contended that during the subsistence of the first
marriage, on 26th June 1998, Respondent No.1, with the aid
and assistance of the other Respondents, solemnised a
second marriage with Respondent No.7 at Anand. It is,
therefore, alleged that the Accused-Respondents have
committed offences punishable under Sections 494 and 114
of the Indian Penal Code, 1860.
9. Ld. Counsel for the Appellant has further submitted that
from the alleged second marriage between Respondent
No.1 and Respondent No.7, a female child, namely Komal,
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was born on 12th July 1999, and the Birth Certificate in that
regard has been produced on record at Exhibit 88. It is
further submitted that the charge against the Accused came
to be framed on 24th November 2005, and thereafter, the
statements of the Accused under Section 313 of the Code
of Criminal Procedure were recorded on 14 th June 2006 at
Exhibits 56 to 65.
10. Ld. Counsel for the Appellant has mainly contended that the
Ld. Trial Court has dismissed the Complaint on the ground
that it lacked territorial jurisdiction to adjudicate the
proceedings. It is submitted that once the Ld. Magistrate
arrived at the conclusion that it did not possess jurisdiction,
it ought not to have proceeded further in the matter. It is
further contended that, in such circumstances, the Ld.
Magistrate ought to have either returned the Complaint for
presentation before the Court having proper territorial
jurisdiction or rejected the same in accordance with law.
However, in the present case, despite holding that it lacked
territorial jurisdiction, the Ld. Magistrate proceeded to
evaluate the evidence on record, which is impermissible in
law.
11. Ld. Counsel has further submitted that the Ld. Magistrate
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has committed a serious error in the interpretation and
application of the provisions contained in Chapter XIII of the
Code of Criminal Procedure, 1973 ("Code") more
particularly Sections 177, 178, 179, 182, 198, 201 and 461
thereof. It is contended that these provisions have not been
considered in their true spirit and perspective.
12. It is, therefore, submitted that the finding of the Ld. Trial
Court that the Court at Patan lacks territorial jurisdiction is
erroneous in law, inasmuch as jurisdiction goes to the very
root of the matter, and the Ld. Judicial Magistrate First
Class, Patan, has failed to properly appreciate the statutory
scheme governing territorial jurisdiction. Ld. Counsel for the
Appellant has further submitted that the Ld. Judicial
Magistrate First Class, Patan has completely lost sight of
the settled position of law that the Courts at the place where
the wife takes shelter, after being driven out of the
matrimonial home on account of the illegal acts of the
husband or his relatives, also have jurisdiction to entertain
and try a complaint alleging offences against the wife and
therefore, the Ld. Trial Court at Patan in fact had the
jurisdiction to adjudicate the matter.
13. Ld. Counsel for the Appellant has further submitted that the
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Ld. Judicial Magistrate First Class, Patan has committed a
serious error of law in not considering the statutory
provision in Section 182 (2) of the Code of Criminal
Procedure, 1973, which provides that "or the wife by the
first marriage has taken up permanent residence after the
commission of the offence". It is submitted that the said
clause was introduced by way of the Amending Act of 1978
with the specific object of facilitating the first wife to initiate
proceedings at the place where she has taken residence
after the husband has contracted a second marriage during
the subsistence of the first marriage.
14. It is further submitted that the Ld. Magistrate has failed to
properly appreciate the evidentiary material on record, more
particularly Exhibit 88, which evidences that a female child,
namely Komal, was born from the alleged second wedlock
during the subsistence of the first marriage. It is contended
that the said document was not in dispute and, therefore,
ought to have been given due weightage.
15. Ld. Counsel for the Appellant has placed reliance upon the
judgment of the Hon'ble Supreme Court in Kaushik
Chatterjee v. State of Haryana, (2020) 10 SCC 92 with
respect to the applicability and interpretation of Sections
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461 and 462 of the Code of Criminal Procedure, 1973.
Reliance is also placed upon the judgment reported in Indu
Bhagya Natekar v. Bhagya Pandurang Natekar (1992) 1
BomCR 390, wherein it has been held that merely because
a Marriage Registration Certificate is not produced, the
factum of second marriage cannot be discarded, particularly
when the name of the priest who performed the marriage
has been disclosed. It is, therefore, submitted that the Ld.
Trial Court has erred in law in doubting the validity of the
second marriage despite the existence of cogent material
on record.
SUBMISSIONS OF THE RESPONDENT
16. Per contra, Ld. Counsel appearing for Respondent Nos. 7, 8
and 10, Mr. Bhaumik Dholariya, has supported the
impugned judgment and order passed by the Ld. Trial
Court. It is submitted that the Complaint has been filed by
the father of the victim and even the address mentioned
therein is that of the father. It is further contended that, at
the time of filing of the Complaint, the victim was not
residing within the territorial jurisdiction of Malund, District
Patan, but was in fact working at Kutch, which aspect has
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been duly admitted by the complainant in his oral deposition
at Exh. 33.
17. It is further submitted that the Ld. Magistrate has rightly
appreciated the factual position that the alleged offence had
taken place at Anand and that the victim and Accused No.1
had last resided together at Anand. In view thereof, it is
contended that the Court at Patan did not have territorial
jurisdiction to entertain, try and decide the Complaint, and
the finding recorded by the Ld. Trial Court on the issue of
jurisdiction is legal and proper.
18. It is further contended, without prejudice to the aforesaid
submissions, that the Complainant has failed to establish
the factum of marriage between Accused No.1 and
Respondent No.7. It is submitted that in absence of cogent
and reliable evidence proving a valid second marriage, no
offence under Section 494 of the Indian Penal Code, 1860
can be said to have been made out. It is, therefore, urged
that the Ld. Trial Court has rightly dismissed the Complaint
and the impugned judgment does not call for any
interference.
19. Ld. Counsel for the Appellant has further submitted that
once the Ld. Magistrate came to the conclusion that it was
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not competent to take cognizance of the case, the
procedure contemplated under Section 201 of the Code of
Criminal Procedure, 1973 ought to have been followed. It is
contended that since the Complaint was in writing, the Ld.
Magistrate was required to return the same to the
complainant for presentation before the proper Court with
an appropriate endorsement to that effect. It is submitted
that the Ld. Magistrate could not have dismissed the
Complaint, and further, having held that it lacked territorial
jurisdiction, it was impermissible for the Ld. Magistrate to
enter into the merits of the case.
20. Per contra, Ld. Counsel for Respondent Nos. 7, 8 and 10
has contended that once the Ld. Magistrate had already
issued process under Section 204 of the Code of Criminal
Procedure, 1973, it was no longer permissible to return the
Complaint under Section 201 on the ground of lack of
jurisdiction, in absence of any express provision enabling
such course. It is, therefore, submitted that the procedure
adopted by the Ld. Trial Court does not suffer from any
illegality.
21. In support of the aforesaid submissions, Ld. Counsel for the
Appellant has placed reliance upon the judgment of the
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Hon'ble Supreme Court in Devendra Kishanlal Nagalia v.
Dwarkesh Diamonds Pvt. Ltd.
22. Ld. Counsel for the Respondents has further submitted that
the Birth Certificate produced at Exh. 88, at the highest,
establishes that a child was born to Respondent Nos. 1 and
7; however, the same cannot be construed as proof of a
valid marriage in the eyes of law. It is contended that mere
proof of cohabitation or birth of a child would not, by itself,
establish the essential ingredients required to prove an
offence under Section 494 of the Indian Penal Code, 1860.
In support of the said contention, reliance has been placed
upon the decisions in Krishnaveni v. Rajendran and Smt.
Dhara Dei v. Prafulla Swain.
23. It is further submitted that the complainant has failed to
place on record any cogent evidence to establish the
solemnization of the alleged second marriage in accordance
with the requisite ceremonies and rituals. It is, therefore,
contended that in absence of proof of essential ceremonies
constituting a valid marriage, the offence alleged cannot be
said to have been made out, and the Ld. Magistrate has
rightly appreciated this aspect while dismissing the
Complaint.
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24. Ld. Counsel appearing for Respondent Nos. 1, 3, 5 and 6
has adopted and supported the submissions advanced by
Ld. Counsel Mr. Bhaumik Dholariya. It is further contended
that the impugned judgment and order passed by the Ld.
Trial Court is in consonance with the provisions of law, does
not suffer from any illegality or perversity, and therefore
does not warrant any interference. It is, accordingly, prayed
that the present Appeal be dismissed.
ANALYSIS AND FINDINGS
25. Therefore, two questions arise for consideration of this
Court. First, does the Court at Patan have the requisite
jurisdiction to adjudicate and try the Complaint in question.
Second, assuming if such a jurisdiction was not there with
the Ld. Trial Court, are the proceedings vitiated.
Jurisdictional issue
26. Having heard Ld. Counsel for the respective parties and
having considered the provisions of law applicable to the
facts of the present case, it emerges that the Complaint has
been filed by the father of the victim after obtaining leave of
the Court, in accordance with the provisions of Section
198(1)(c) of the Code of Criminal Procedure, 1973.
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27. Complainant was examined at Exhibit 33, whilst a friend of
the Complainant was examined at Exhibit 50.
28. The respondents examined are as under;
Res. no Name of the Respondent Exh Relation
.
1. Patel Dashrathbhai Mafatlal 56 Husband of Urvashi
2. Patel Mafatlal Revabhai 57 Father-in-law of Urvashi
(passed away, Appeal
abated)
3. Patel Narmadaben Mafatlal 58 Mother-in-law of Urvashi
4. Patel Bharatkumar Mafatlal, 59 Brother of Resp.No.1
(passed away, Appeal
abated)
5. Patel Yogitaben Bharatkumar 60 Wife of Resp. No. 4
6. Patel Bakulaben Bipinkumar 61 Sister of Resp. No. 1
d/o. Mafatlal Revabhai
7. Patel Kailashben 62 Alleged second wife of
8. Patel Ishvarbhai Harjibhai 63 Father of Resp. No. 7
9. Patel Raiben Ishwarbhai 64 Mother of Resp. No. 7
(passed away, Appeal
abated)
10. Patel Jagdishbhai Ishwarbhai 65 Brother of Resp. No. 7
29. It is the case of the Complainant that during the subsistence
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of the first marriage between the victim and Respondent
No.1, which was solemnised on 18 th February 1989,
Respondent No.1, with the aid and assistance of the other
Respondents, contracted a second marriage with
Respondent No.7 on 26th June 1998.
30. However, upon appreciation of the material on record, it
prima facie appears that the factum of the alleged second
marriage has not been strictly proved by the complainant.
The complainant has primarily relied upon Exh. 88, i.e., the
Birth Certificate of a female child, Komal, stated to have
been born out of the alleged wedlock between Respondent
No.1 and Respondent No.7.
Whether Patan Court had the territorial jurisdiction
31. Before adverting to the question as to whether the Court at
Malund, District Patan, had the territorial jurisdiction to
entertain and decide the present Complaint, it would be
apposite to consider the relevant provisions of law
governing jurisdiction, namely Sections 177, 178 and 182(2)
of the Code of Criminal Procedure, 1973, which read as
under:
"Section 177- Ordinary place of inquiry
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and trial- Every offence shall ordinarily be
inquired into and tried by a Court within
whose local jurisdiction it was committed.
Section 178- Place of inquiry or trial-
(a) when it is uncertain in which of several
local areas an offence was committed, or
(b) where an offence is committed partly in
one local area and partly in another, or
(c) where an offence is a continuing one,
and continues to be committed in more local
areas than one, or
(d) where it consists of several acts done in
different local areas, it may be inquired into
or tried by a Court having jurisdiction over
any of such local areas.
Section 182(2)- Offences committed by
letters, etc.
(2)- Any offence punishable under section
494 or section 495 of the Indian Penal Code
(45 of 1860) may be inquired into or tried by
a Court within whose local jurisdiction the
offence was committed or the offender last
resided with his or her spouse by the first
marriage, [or the wife by first marriage has
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taken up permanent residence after the
commission of offence]."
32. The aforesaid provision assumes significance in the present
case, inasmuch as the Complaint pertains to an offence
punishable under Section 494 of the Indian Penal Code,
1860. In terms of Section 182(2) of the Code of Criminal
Procedure, 1973, such an offence may be inquired into and
tried by a Court within whose local jurisdiction the offence
was committed, or where the offender last resided with his
or her spouse by the first marriage, or where the wife by the
first marriage has taken up permanent residence after the
commission of the offence.
33. Thus, a plain reading of Section 182(2) makes it clear that
the local jurisdiction to inquire into and try an offence under
Section 494 of the Indian Penal Code, 1860 is not confined
to a single place, but is spread across three alternative
jurisdictions, namely: (i) the place where the offence was
committed; (ii) the place where the husband last resided
with the first wife; and (iii) the place where the first wife has
taken up permanent residence after the commission of the
alleged offence.
34. In the aforesaid background, if the first limb of jurisdiction
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is taken into consideration, namely the place where the
offence is alleged to have been committed, it is the specific
case of the complainant that the alleged second marriage
was solemnised at District Anand. The Complaint itself
records that the said second marriage had taken place at
Anand, and therefore, in terms of Section 182(2) of the
Code of Criminal Procedure, 1973, the Courts at Anand
would have jurisdiction under this limb.
35. Insofar as the second limb of jurisdiction is concerned,
namely the place where the offender last resided with the
spouse from the first marriage, the material on record
indicates that the victim and Respondent No.1 had last
resided together at District Anand. Thus, even under this
limb, the Courts at Anand would have jurisdiction.
36. For the third limb, namely the place where the wife from
the first marriage has taken up permanent residence after
the commission of the offence, the deposition of the
complainant at Exhibit 33 assumes significance. The
Complainant has categorically stated that even prior to the
alleged incident, the victim was employed as a teacher at
District Kutch, Taluka Anjar, and continued to be so
employed even at the time of filing of the Complaint. It is
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further admitted that the victim was not residing at Patan,
and that as she was unable to travel from Kutch, the
Complaint came to be filed by the father on her behalf.
37. A further reading of the Complaint also does not disclose
any assertion that the victim had taken up permanent
residence within the territorial jurisdiction of Malund, District
Patan, after the commission of the alleged offence.
38. On the contrary, the Complaint is premised on the allegation
that Respondent No. 1 contracted a second marriage with
Respondent No. 7 on 26th June 1998 during the subsistence
of the first marriage. The basis for invoking jurisdiction of
the Court at Patan is stated to be that the Complainant
resides within such jurisdiction and that the marriage
between the victim and Respondent No.1 was earlier
solemnised at Malund.
39. However, Section 182(2) of the Code of Criminal
Procedure, 1973 does not confer jurisdiction upon the Court
where the first marriage was solemnised, nor does it
recognize the residence of the complainant (Father) as a
determinative factor for jurisdiction.
Leave under Section 198(c) of the CRPC
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40. The leave sought by the complainant is under Section
198(1)(c) of the Code of Criminal Procedure, 1973, which
pertains to locus to file the Complaint, and cannot be
conflated with the issue of territorial jurisdiction. Section 198
of the Code of Criminal Procedure. More particularly, 198(c)
which reads as;
c. "where the person aggrieved by an
offence punishable under section 494 or
section 495 of the Indian Penal Code (45 of
1860) is the wife, complaint may be made
on her behalf by her father, mother, brother,
sister, son or daughter or by her father's or
mother's, brother or sister, [or with the leave
of the Court, by any other person related to
her by blood, marriage or adoption]."
41. Therefore, while granting leave under Section 198(1)(c) of
the Code of Criminal Procedure, 1973, the Court was only
required to consider whether the Complaint had been validly
instituted on behalf of the wife by her father. The said
provision pertains to the locus of the complainant and does
not, in any manner, enlarge or confer territorial
jurisdiction upon the Court. Merely because the father of
the victim resides within the jurisdiction of the Court at
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Malund, District Patan, the same cannot be a ground to vest
jurisdiction in such Court, when the statutory requirements
governing territorial jurisdiction are otherwise not satisfied.
Section 201 and 461 of the CRPC
42. Ld. Counsel for the Complainant has further contended that
in view of Section 201 of the Code of Criminal Procedure,
1973, the Ld. Magistrate ought to have returned the
Complaint for presentation before the competent Court,
instead of proceeding to decide the same.
43. It is further submitted that in light of Section 461 of the
Code, more particularly clauses (l) and (m), any
proceedings conducted by a Magistrate not empowered in
that behalf would stand vitiated, inasmuch as if a Magistrate
not so empowered tries an offender or tries an offender
summarily, such proceedings would be rendered void.
44. In support of the aforesaid contention, reliance has been
placed upon the decision of the Hon'ble Supreme Court in
Kaushik Chatterjee v. State of Haryana.
45. Insofar as the contention that the Ld. Magistrate ought to
have returned the Complaint for presentation before the
competent Court in view of Section 201 of the Code of
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Criminal Procedure, 1973 is concerned, Ld. Counsel for
Respondent Nos. 7, 8 and 10 has placed reliance upon the
judgment of the Hon'ble Supreme Court in Devendra
Kishanlal Nagalia v. Dwarkesh Diamonds Pvt. Ltd.,
(2014) 2 SCC 246. While considering a similar issue, the
Hon'ble Court, in paragraph 12 of the said judgment, has
observed as under:
"Section 201 CrPC, as noticed earlier, can
be applied immediately on receipt of a
complaint, if the Magistrate is not competent
to take cognizance of the offence. Once the
Magistrate taking cognizance of an offence
forms his opinion that there is sufficient
ground for proceeding and issues summons
under Section 204 CrPC, there is no
question of going back following the
procedure under Section 201 CrPC. In
absence of any power of review or recall the
order of issuance of summons, the
Magistrate cannot recall the summons in
exercise of power under Section 201 CrPC.
The first question is thus answered in the
negative and in favour of the appellant."
46. Therefore, as the Ld. Magistrate Court at Malund had taken
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cognizance of an offence that there is sufficient ground for
proceeding, and issued summons under Section 204, there
was no question of going back following the procedure
under Section 201 Criminal Procedure Code. Even as per
the judgment reported in Kaushik Chatterjee v. State of
Haryana and Ors, (2020), which has been relied on by the
learned advocate for the Appellant, the Apex Court has held
that in the circumstances on hand the Court cannot order
transfer on the ground of lack of territorial jurisdiction even
before evidence is marshalled, and therefore the argument
of the appellant that if the Trial Court came to the
conclusion that the Magistrate did not have jurisdiction, the
Magistrate could not have gone to decide the case on
merits of no substance.
47. Moreover, Respondent No. 7 has already taken contention
before the Ld. Magistrate, that the said Court did not have
territorial jurisdiction to decide the dispute, and even if a trial
had taken place in the wrong place where the Court has no
territorial jurisdiction to try the case, still unless failure of
justice is pleaded and proved, the trial cannot be quashed
and set aside.
Section 462 of the CRPC: Proceedings at a wrong place
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48. However, upon consideration of the said judgment, it would
also be necessary to advert to the provisions of Section 462
of the Code of Criminal Procedure, 1973, which provides:
"Proceedings in wrong place.-- No finding,
sentence or order of any Criminal Court shall be
set aside merely on the ground that the inquiry,
trial or other proceedings in the course of which
it was arrived at or passed, took place in a
wrong Sessions Division, district, sub-division
or other local area, unless it appears that such
error has in fact occasioned a failure of
justice."
49. Thus, a conjoint reading of the aforesaid provisions
indicates that while lack of territorial jurisdiction is a relevant
consideration, the same would not ipso facto render the
proceedings void, unless it is shown that such defect has
resulted in a failure of justice.
50. Hon'ble Supreme Court in State of Karnataka v.
Kuppuswamy Gownder, (1987) 2 SCC 74 held as follows:
15. It is therefore clear that even if the trial
before the III Additional City Civil and
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Sessions Judge would have in a Division
other than the Bangalore Metropolitan Area
for which III Additional City Civil and
Sessions Judge is also notified to be a
Sessions Judge still the trial could not have
been quashed in view of Section 462. This
goes a long way to show that even if a
trial takes place in a wrong place where
the court has no territorial jurisdiction to
try the case still unless failure of justice
is pleaded and proved, the trial cannot
be quashed. In this view of the matter
therefore reading Section 462 alongwith
Section 465 clearly goes to show that the
scheme of the Code of Criminal
Procedure is that where there is no
inherent lack of jurisdiction merely either
on the ground of lack of territorial
jurisdiction or on the ground of any
irregularity of procedure an order or
sentence awarded by a competent court
could not be set aside unless a prejudice
is pleaded and proved which will mean
failure of justice. But in absence of such
a plea merely on such technical ground
the order or sentence passed by a
competent court could not be quashed.
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51. Even the Bombay High Court in Rafiuddin v. Saleha
Khatoon, 2007 SCC OnLine Bom 850 held as follows:
11. The wording of section 462 of Criminal
Procedure Code is very clear that the order
shall not be set aside on the ground that the
trial, enquiry or proceedings took place in a
wrong district or place. The contention of
Mr. Vyawahare, therefore, has to be upheld.
This Court, therefore, in revision cannot set
aside the order of the Family Court on the
ground of want of territorial jurisdiction.
Lack of territorial jurisdiction may at the
most be irregularity and not an illegality.
The order, therefore, cannot be set aside on
that count.
52. This principle has been by and large followed by many
Courts of the Country even after the stage of evidence was
over.
53. The reliance placed on Section 461, therefore, has to be
appreciated in the context of the statutory scheme,
particularly in light of Section 462, which curtails
interference on mere technical grounds of territorial
jurisdiction.
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54. Therefore, in the facts of the present case, it is evident that
while the Ld. Magistrate was otherwise competent to try an
offence of the nature alleged, the issue that arises is limited
to the aspect of territorial jurisdiction. The material on record
indicates that (i) the alleged offence had taken place at
District Anand, (ii) that the victim and Respondent No.1 had
last resided together at District Anand, and (iii) further that
at the relevant point of time the victim had taken up
residence at District Kutch. In such circumstances, none of
the ingredients contemplated under Section 182(2) of the
Code of Criminal Procedure, 1973 are satisfied so as to
confer jurisdiction upon the Court at Malund, District Patan.
55. In view of the aforesaid, though the Ld. Magistrate
possessed the jurisdiction to try the class of offence in
question, it cannot be said that the Court at Malund, District
Patan had territorial jurisdiction to entertain the present
Complaint.
56. However, having regard to the saving provision contained in
Section 462 of the Code of Criminal Procedure, 1973, the
proceedings cannot be set aside merely on the ground of
such defect, unless it is demonstrated that the same has
occasioned a failure of justice. In the present case, no such
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failure of justice is either pleaded or made out, and
therefore, no interference is warranted on this ground.
57. Therefore, on the plain reading of Section 462, which shows
the scheme of Criminal Procedure Code, that where there is
no inherent lack of jurisdiction, and merely either on the
ground of lack of territorial jurisdiction, the order of the
competent Court could not be set aside, unless a prejudice
is pleaded and proved, which will mean failure of justice,
and in absence of a plea merely on such technical ground,
the order of the Court could not be quashed.
Merits of the Appeal
58. Insofar as the issue regarding proof of the alleged second
marriage between Respondent Nos. 1 and 7 is concerned, it
is required to be noted that the victim herself has not
entered the witness box to depose on the said aspect.
59. The complainant (father) has examined himself at Exh. 33;
however, even from his oral testimony, the factum of
second marriage is not established. In his deposition, he
has stated that the alleged second marriage took place at
Anand and that certain persons, namely Vinodbhai
Keshabhai and Praveen Mohan, had attended the same. He
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has further stated that the marriage had taken place inside
a room. However, he has candidly admitted that he was not
present at the time of the alleged ceremony, that he is not
aware of the exact place where such ceremony was
performed, and that even the victim was not aware of the
alleged second marriage and came to know about it only
after the Complaint was filed.
60. The Complainant has thereafter examined one Vinodbhai
Keshabhai at Exh. 50, who is stated to be an eyewitness to
the alleged marriage. The said witness has deposed that
the marriage took place at his quarters at D.M. School.
However, upon appreciation of his evidence, it emerges that
the same is vague and does not disclose the performance
of essential ceremonies required for a valid marriage in law.
61. There is no clear or cogent evidence indicating that the
mandatory rituals constituting a valid Hindu marriage were
performed. The complainant has also relied upon Exh. 88,
being the Birth Certificate of the child Komal, alleged to
have been born from the relationship between Respondent
Nos. 1 and 7.
62. At this stage, it would be apposite to note that for
establishing an offence under Section 494 of the Indian
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Penal Code, 1860, it is incumbent upon the complainant to
prove that a valid second marriage was solemnised during
the subsistence of the first marriage.
63. The entire case of the complainant rests upon the testimony
of PW-2 (Vinodbhai) at Exh. 50 and the documentary
evidence at Exh. 88. However, the Ld. Trial Court has, upon
appreciation of the evidence, declined to place reliance on
the testimony of PW-2 on the ground that it does not
establish the essential ceremonies of marriage. The said
finding cannot be said to be perverse or contrary to the
evidence on record so as to warrant interference in an
appeal against acquittal.
64. Insofar as the Birth Certificate at Exh. 88 is concerned, the
same may indicate that a child was born to Respondent
Nos. 1 and 7; however, it cannot, by itself, be treated as
proof of a valid marriage. The law is well settled that
marriage cannot be presumed merely from cohabitation or
from the birth of a child, particularly in criminal proceedings
where strict proof beyond reasonable doubt is required. The
reliance placed on the decision in Krishnaveni v. Rajendran
also supports the proposition that a Birth Certificate, in
absence of proof of essential ceremonies, is insufficient to
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establish a valid marriage.
65. Thus, the complainant has failed to establish, by cogent and
reliable evidence, that the alleged second marriage
between Respondent Nos. 1 and 7 was solemnised in
accordance with law. The standard of proof required in
criminal proceedings is that of proof beyond reasonable
doubt, and not mere preponderance of probabilities. In
absence of proof of the essential ingredients constituting a
valid marriage, no offence under Section 494 of the Indian
Penal Code, 1860 can be said to have been made out.
CONCLUSION
66. Insofar as the issue of territorial jurisdiction is
concerned, this Court is of the considered view that the
Court at Malund, District Patan did not possess territorial
jurisdiction to entertain and decide the present Complaint,
inasmuch as none of the contingencies contemplated under
Section 182(2) of the Code of Criminal Procedure, 1973 are
satisfied.
67. However, having regard to the provisions of Section 462 of
the Code, and in absence of any demonstrated failure of
justice, the proceedings cannot be vitiated on this ground
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alone and hence, are not quashed on this count.
68. Insofar as the merits of the case are concerned, this Court
finds that the complainant has failed to establish, by cogent
and reliable evidence, the factum of a valid second
marriage between Respondent Nos. 1 and 7 so as to attract
the offence under Section 494 of the Indian Penal Code,
1860.
69. The findings recorded by the Ld. Trial Court, therefore, do
not suffer from any legal infirmity warranting interference.
70. In view of the aforesaid discussion and upon re-appreciation
of the entire evidence on record, this Court does not find
any illegality, perversity or infirmity in the impugned
judgment and order passed by the Ld. Trial Court. The
findings recorded are in consonance with the evidence on
record as well as the settled principles of law, and no case
is made out for interference in an appeal against acquittal.
71. The present Appeal, being devoid of merits, is hereby
dismissed. The impugned judgment and order passed by
the Ld. Judicial Magistrate First Class, Patan in Criminal
Case No. 1847 of 1998 is hereby confirmed.
(SANJEEV J.THAKER,J)
ADITYA SINGH
