Accused vs The State Of Tripura
2021 Latest Caselaw 758 Tri

                                      Page - 1 of 16




                              HIGH COURT OF TRIPURA
                                    AGARTALA

                              Crl. Rev. P. No. 24 of 2021

     Sri Nimai Roy,
     Son of Late Kshirod Mohar Roy, resident of South Golaghati, P.S.-
     Takarjala, P.O.-Golaghati, District-Sepahijala, Tripura.

                                                        ----- Accused Petitioner(s)
                                       Versus


1.   The State of Tripura,
     Represented by Secretary cum Commissioner, Home Department,
     Govt. of Tripura, New Capital Complex, P.O.-Lichubagan, P.S.-West
     Agartala, Dist.-West Tripura

2.   Smt. Banani Sarkar (Roy),
     Wife of Late Manik Roy, Resident of Arundhuti Nagar, Road No.-5, PO
     & PS-A.D. Nagar, District-West Tripura
                                                              -----Respondent(s)

For Petitioner(s) : Mr. A. Acharjee, Adv.

For Respondent(s) : Mr. P. Roy Barman, Sr. Adv.

Mr. S. Bhattacharjee, Adv.

Mr. K. Nath, Adv.

Ms. A. Debbarma, Adv.

Ms. N. Ghosh, Adv.

Mr. S. Ghosh, Addl. P.P.

     Date of Hearing                   :    16th July, 2021.
     Date of Pronouncement             :    11th August, 2021.

     Whether fit for reporting         :        Yes    No
                                                       √




     Crl. Rev. P. No. 24 of 2021
                                     Page - 2 of 16




                                    B_E_F_O_R_E_
              HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
                                JUDGMENT & ORDER

By means of filing this criminal revision petition under section

401 read with section 397 of the Code of Criminal Procedure, 1973

(Cr.P.C hereunder). Petitioner Nimai Roy has challenged the judgment

and order dated 09.02.2021 passed by the Additional Sessions Judge,

West Tripura, Agartala (Court No.2) in Criminal Revision 02 of 2019

whereby the learned Additional Sessions Judge has set aside the order

dated 26.11.2018 passed by the Judicial Magistrate First Class (Court

No.7), Agartala in CR No. 299 of 2017.

[2] By his order dated 26.11.2018, the learned Judicial

Magistrate dismissed the complaint lodged by Smt. Banani Sarkar

(respondent No.2 herein) against the present petitioner and discharged

him from the case on the ground that court lacked territorial jurisdiction

to try the case since the place of occurrence was beyond the territorial

limits of its jurisdiction. Said order was challenged by Smt. Banani

Sarkar (respondent No.2) in the court of Additional Sessions Judge

(Court No.2) at Agartala. By the impugned judgment, the Additional

Sessions Judge held that findings of the trail court were incorrect

because part of the occurrence took place within the limits of territorial

jurisdiction of the trial court. Therefore, by setting aside the order of the

trial court, the learned Additional Sessions Judge directed the trial court

Crl. Rev. P. No. 24 of 2021 Page - 3 of 16

to restore the case to its file and proceed with the matter from the

stage at which it was dismissed.

[3] Aggrieved thereby, the accused petitioner has approached

this court for setting aside the order of the learned Additional Session

Judge.

[4] Essential facts relevant for disposal are as under:

Smt. Banani Sarkar (respondent No.2) lodged a written

complaint in the court of the Chief Judicial Magistrate at Agartala

against present petitioner Nimai Roy. Her complaint was registered as

case No. CR 299 of 2017 in the court of Chief Judicial Magistrate which

was later transferred to the court of Judicial Magistrate First Class

(Court No.7), Agartala. Having taken cognizance of offence punishable

under section 342 IPC, the learned Judicial Magistrate examined the

complainant under section 200 Cr.P.C and thereafter summoned the

accused (present petitioner) to appear before the court for his

examination under section 251 Cr.P.C. At that stage of the case,

accused petitioner challenged the maintainability of the proceedings on

the ground of lack of territorial jurisdiction of the trial court which was

decided in favour of accused petitioner. Case against him was dismissed

on jurisdictional ground and he was discharged from the case.

Crl. Rev. P. No. 24 of 2021 Page - 4 of 16

[5] At this juncture, it would be appropriate to give a

summary of the complaint for a better understanding of the case.

[6] In her complaint lodged against the petitioner

complainant stated that her husband Manik Roy was murdered in the

year 2006 when her daughter was only 4 years' old. On account of

murder of her husband a case was registered under section 302 IPC and

investigation was taken up by police into the said incident and after

investigation, police submitted charge sheet which culminated into trial

as ST (GTA) 54 of 2015. Complainant was made an accused in the said

murder case and she was arrested by police during investigation. At

that time she used to live at Agartala in Officers quarters lane behind

Sishu Bihar School. Her accused brother in law Nimai Roy (present

petitioner) and her father in law came to her house at Agartala and took

away her daughter along with her property documents and wrongfully

confined her daughter in their house at Golaghati in Sepahijala District.

After she was enlarged on bail, she requested her accused brother in

law (petitioner) to return her daughter. Since he did not return her

minor daughter to her, she lodged the said complaint in the court of the

Chief Judicial Magistrate at Agartala against her said brother in law for

having committed offence punishable under section 342 IPC. By filing a

separate petition she wanted search warrant for search and recovery of

her daughter from the house of her accused brother in law.

Crl. Rev. P. No. 24 of 2021 Page - 5 of 16

[7] In view of such complaint, the learned trial court held

that the alleged offence of wrongful confinement of the daughter of the

complainant took place at Golaghati at Sepahijala District. Therefore,

the complainant should have filed a complaint in the jurisdictional court

in Sepahijala Judicial District. It was held by the trial court that the case

was liable to be dismissed for lack of territorial jurisdiction of the trial

court and accordingly the complaint was dismissed with a liberty to the

complainant to file fresh complaint before the jurisdictional court.

[8] The order dated 26.11.2018 of the learned Judicial

Magistrate (Court No.7), Agartala reads as under:

"Complainant Smt Banani Sarkar is absent by fling one petition through her ld engaged counsel Mr. I. Banik.

Accused Nimai Roy is present along with his ld engaged counsel Mr J. K. Sen.

Perused the case record.

Today the case is fixed hearing/ order. It is seen that at the time of preparing the substance of accusation against the accused it was noticed that the place of occurrence is situated at Golaghati , under Takarjala PS , District Siphaijala.

Heard ld counsels for accused who submitted that this case is not maintainable as the jurisdiction falls under Siphaijala District.

Ld Counsel for the complainant Mr I. Banik strongly objected the petition and submitted that this is a case where the offence continued from Agartala, Krishnanagar to Golaghati Bishalgarh and hence this case may be continued.

Crl. Rev. P. No. 24 of 2021 Page - 6 of 16

It is seen that though the present residential address of the complainant is at A D Nagar, Road No. 5 Agartala and in the complaint petition it is mentioned that the accused took the child of the complainant away from Krishnanagar, Agartala , it is noticed that this is a case u/s.342 IPC and not under any section regarding any kidnapping.

This is a case for wrongful confinement and as per section 340 IPC the definition of wrongful confinement is who ever wrongfully restrained any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limit, is said to have wrongful confined that person.

From the evidence of the complainant u/s.200 Cr PC and from the entire complaint petition, the ingredients of wrongful confinement was found but that is outside the local jurisdiction of this court i.e. at Golaghati under the jurisdiction of Siphaijala District.

This is a summons procedure case and hence considering the overall circumstances regarding the place of occurrence, I find that this court does not have the jurisdiction to try this case.

Hence this instant case is hereby dropped with a liberty to the complainant to file afresh before the competent court within whose Local jurisdiction the case falls.

The accused Nimai Roy is discharged from the liability of this case.

Thus the case is disposed of without contest.

Make necessary entry."

[9] Aggrieved complainant (respondent No.2 herein)

challenged the said order of the Judicial Magistrate in the court of the

Additional Sessions Judge (Court No.2), Agartala in West Tripura District

Crl. Rev. P. No. 24 of 2021 Page - 7 of 16

in Criminal Revision Petition 02 of 2019. It was held by the learned

Additional Sessions Judge that the daughter of the complainant was

taken away from the rented house of the complainant at Agartala

though afterwards she was allegedly kept in confinement at Golaghati in

Sepahijala District. Learned Additional Sessions Judge, therefore,

viewed that the alleged offence commenced when the accused (present

petitioner) had taken the daughter of the complainant from her house

at Agartala and as such the offence was partly committed under the

jurisdiction of the trial court at Agartala. Therefore, in terms of section

178(b), Cr.P.C, both the courts at Agartala as well as the court at

Bishalgarh in Sepahijala Judicial District were having jurisdiction to try

the case and the trial court at Agartala committed error in holding that

it had no jurisdiction to try the case. Accordingly, the learned Additional

Sessions Judge set aside the order dated 26.11.2018 of the learned trial

court and directed the trial court to proceed with the case from the

stage at which it was dismissed holding as under:

"4....................................The facts as prima facie emerges from the record of trial court that the petitioner while was in judicial custody, her daughter was taken away by the respondent at Golagati and wrongfully confined her there. There is no allegation of kidnapping. It therefore, appears that the respondent had taken away the daughter of petitioner from the place which is situated well within the local jurisdiction of the trial court. But the daughter of petitioner was allegedly wrongfully confined at Golagati. The intention of the respondent as to keep the daughter of petitioner in wrongful confinement while taking her away needs

Crl. Rev. P. No. 24 of 2021 Page - 8 of 16

investigation and a decision on merit to be rendered by trial court. What therefore, surfaces is that the alleged offence commenced when the respondent had taken the daughter of petitioner from the quarters at Agartala. Therefore, taking reference to Section 178 of CrPC it can be said that alleged offence was committed partly in the local area under the jurisdiction of trial court and was completed within the jurisdiction of the court at Sepahijala. So both the competent courts at Agartala, West Tripura and the courts at Sepahijala have the jurisdiction to entertain the case of the petitioner.

Regard being had to such circumstances I am of the opinion that the impugned order dated 26.11.2018 is liable to be interfered with which I hereby do.

5. Having observed thus, we are of the considered opinion that the order so passed by the court cannot sustain. Accordingly, the order dated 26.11.2018 passed by the trial court in CR 299 of 2017 stands set aside with direction to the trial court to restore the case to its file and to proceed with the case from the stage at which it was dismissed.................................."

[10] In view of the facts and circumstances presented before

this court the following questions arise for consideration of this court:

(i) Whether the trial court lacked territorial jurisdiction over the case.

(ii) Whether the trial court can arrive at the conclusion with regard to its

territorial jurisdiction in such matter without recording evidence.

[11] Mr. A. Acharjee, counsel appearing for the accused

petitioner has simply argued that the trial court rightly decided that it

Crl. Rev. P. No. 24 of 2021 Page - 9 of 16

had no territorial jurisdiction to try the offence since the offence was

committed within the territorial jurisdiction of the Chief Judicial

Magistrate of Sepahijala Judicial District. Counsel argued that the

impugned order passed by the learned Additional Sessions Judge is

erroneous because the offence was committed only at Golaghati in

Sepahijala District where the daughter of the complainant was

wrongfully confined and no part of it was committed within the

jurisdiction of the trial court at Agartala. Therefore, the trial court had

no territorial jurisdiction to try the offence. Counsel, therefore, urges

the court for allowing his petition.

[12] Ms. N. Ghosh, counsel appearing for the complainant has

vehemently opposed the petition. Counsel submits that impugned order

passed by the learned Additional Sessions Judge is based on proper

appreciation of facts and law which does not call for any interference in

criminal revision. Counsel, therefore, urges for dismissal of the petition.

[13] It would appear from the facts of the case that the

complainant respondent is the sister in law of the petitioner. After her

husband was murdered, the complainant respondent was booked for

killing her husband. At that time she was residing in the Official

quarters of her deceased husband at Agartala. Her accused brother in

law and her father in law met her in the said Official quarters and they

had taken her 4 years' old daughter with them for performing the

Crl. Rev. P. No. 24 of 2021 Page - 10 of 16

funeral rituals of her deceased father. Thereafter, the complainant was

arrested by police and put to jail. She was in jail for about six months.

It was complained by her at the trial court that inspite of her repeated

requests from jail, her daughter was never shown to her by her in laws.

Even after her release, when she went to her matrimonial house to take

back her daughter she was ousted from there by her in laws. Though

her daughter was willing to return to her complainant mother, she was

wrongfully restrained by the accused. For redress, complainant filed the

said complaint against her accused brother in law for committing the

offence of wrongful confinement punishable under section 342 IPC.

[14] Obviously, the parties to the dispute are closely related

and their dispute involves a trivial issue but the merit of her complaint

is not in issue in the present case. As discussed, this court is required to

decide only two issues, one of which relates to the territorial jurisdiction

of the trial court and the other relates to the correctness of the

procedure adopted by the trial court for deciding its territorial

jurisdiction.

[15] I have considered the entire facts and circumstances of

the case and the submissions of learned counsel appearing for the

parties.

[16] The jurisdiction of criminal courts including territorial

jurisdiction in respect of inquiries and trials are dealt with under

Crl. Rev. P. No. 24 of 2021 Page - 11 of 16

Chapter XIII of the Code of Criminal Procedure, 1973 mainly in sections

177 to 184. The Hon'ble Supreme Court in the case of Kaushik

Chatterjee Vs. State of Haryana & Ors. reported in 2020 CRI. L.J. 4923:

AIROnline 2020 SC 751 has summarized the principles laid down under

sections 177 to 184, Cr.P.C with regard to the jurisdiction of the

criminal courts in inquiries and trials as under:

"20. Chapter XIII of the Code of Criminal Procedure, 1973 contains provisions relating to jurisdiction of criminal Courts in inquiries and trials. The Code maintains a distinction between (i) inquiry; (ii) investigation; and (iii) trial. The words "inquiry" and "investigation" are defined respectively in clauses (g) and (h) of Section 2 of the Code.

21. The principles laid down in Sections 177 to 184 of the Code (contained in Chapter XIII) regarding the jurisdiction of criminal Courts in inquiries and trials can be summarized in simple terms as follows:

(1) Every offence should ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. This rule is found in Section

177. The expression "local jurisdiction" found in Section 177 is defined in Section 2(j) to mean "in relation to a Court or Magistrate, the local area within which the Court or Magistrate may exercise all or any of its or his powers under the Code"

(2) In case of uncertainty about the place in which, among the several local areas, an offence was committed, the Court having jurisdiction over any of such local areas may inquire into or try such an offence.

(3) Where an offence is committed partly in one area and partly in another, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.

Crl. Rev. P. No. 24 of 2021 Page - 12 of 16

(4) In the case of a continuing offence which is committed in more local areas than one, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.

(5) Where an offence 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. (Numbers 2 to 5 are traceable to Section 178)

(6) Where something is an offence by reason of the act done, as well as the consequence that ensued, then the offence may be inquired into or tried by a Court within whose local jurisdiction either the act was done or the consequence ensued.(Section 179)

(7) In cases where an act is an offence, by reason of its relation to any other act which is also an offence, then the first mentioned offence may be inquired into or tried by a Court within whose local jurisdiction either of the acts was done. (Section

180)

(8) In certain cases such as dacoity, dacoity with murder, escaping from custody etc., the offence may be inquired into and tried by a Court within whose local jurisdiction either the offence was committed or the accused person was found.

(9) In the case of an offence of kidnapping or abduction, it may be inquired into or tried by a Court within whose local jurisdiction the person was kidnapped or conveyed or concealed or detained.

(10) The offences of theft, extortion or robbery may be inquired into or tried by a Court within whose local jurisdiction, the offence was committed or the stolen property was possessed, received or retained.

(11) An offence of criminal misappropriation or criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property

Crl. Rev. P. No. 24 of 2021 Page - 13 of 16

was received or retained or was required to be returned or accounted for by the accused person.

(12) An offence which includes the possession of stolen property, may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property was possessed by any person, having knowledge that it is stolen property. (Nos. 8 to 12 are found in Section 181)

(13) An offence which includes cheating, if committed by means of letters or telecommunication messages, may be inquired into or tried by any Court within whose local jurisdiction such letters or messages were sent or received.

(14) An offence of cheating and dishonestly inducing delivery of the property may be inquired into or tried by a Court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person.

(15) Some offences relating to marriage such as Section 494, IPC (marrying again during the life time of husband or wife) and Section 495, IPC (committing the offence under Section 494 with concealment of former marriage) may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with the spouse by the first marriage. (Nos. 13 to 15 are found in Section 182)

(16) An offence committed in the course of a journey or voyage may be inquired into or tried by a Court through or into whose local jurisdiction that person or thing passed in the course of that journey or voyage. (Section 183).

(17) Cases falling under Section 219 (three offences of the same kind committed within a space of twelve months whether in respect of the same person or not), cases falling under Section 220 (commission of more offences than one, in one

Crl. Rev. P. No. 24 of 2021 Page - 14 of 16

series of acts committed together as to form the same transaction) and cases falling under Section 221, (where it is doubtful what offences have been committed), may be inquired into or tried by any Court competent to inquire into or try any of the offences. (Section 184)."

[17] Relying on its earlier decision in Purushottam Das Dalmia

Vs. State of West Bengal reported in AIR 1961 SC 1589 and also in the

case of Raj Kumari Vijh Vs. Dev Raj Vijh reported in AIR 1977 SC 1101

the Hon'ble Supreme Court in the said case of Kaushik Chatterjee

(Supra) further held as follows with regard to territorial jurisdiction of

criminal courts:

"36. It was specifically held by this Court in Raj Kumari Vijh (supra) that the question of jurisdiction with respect to the power of the Court to try particular kinds of offences goes to the root of the matter and that any transgression of the same would make the entire trial void. However, territorial jurisdiction, according to this Court "is a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular court, the convenience of the accused and the convenience of the witnesses who have to appear before the Court."

[18] It has been held by the Apex Court that where the

controversy relates solely to the territorial jurisdiction of the Magistrate

who is otherwise competent to try the case, the case would normally be

covered by saving clause under section 462 Cr.P.C which is in pari

materia with such section 531 of the old Code of 1898.

Crl. Rev. P. No. 24 of 2021 Page - 15 of 16

[19] Moreover, it would appear from the record that simply

after taking cognizance of offence and without recording any evidence

in the case, the learned trial court held that it had no territorial

jurisdiction to try the offence. In this regard the Apex Court in the case

of Kaushik Chatterjee (Supra) had held that issue of jurisdiction of a

court to try an offence or offender or issue of territorial jurisdiction,

depend on the facts established through evidence. Observation of the

Apex Court is as under:

"39. But be that as it may, the upshot of the above discussion is (i) that the issue of jurisdiction of a court to try an "offence" or "offender" as well as the issue of territorial jurisdiction, depend upon facts established through evidence (ii) that if the issue is one of territorial jurisdiction, the same has to be decided with respect to the various rules enunciated in sections 177 to 184 of the Code and (iii) that these questions may have to be raised before the court trying the offence and such court is bound to consider the same.

40. Having taken note of the legal position, let me now come back to the cases on hand.

41. As seen from the pleadings, the type of jurisdictional issue, raised in the cases on hand, is one of territorial jurisdiction, at least as of now. The answer to this depends upon facts to be established by evidence. The facts to be established by evidence, may relate either to the place of commission of the offence or to other things dealt with by Sections 177 to 184 of the Code. In such circumstances, this Court cannot order transfer, on the ground of lack of territorial jurisdiction, even before evidence is marshaled. Hence the transfer petitions are liable to be dismissed. Accordingly, they are dismissed.

Crl. Rev. P. No. 24 of 2021 Page - 16 of 16

41A. However, it is open to both parties to raise the issue of territorial jurisdiction, lead evidence on questions of fact that may fall within the purview of Sections 177 to 184 read with Section 26 of the Code and invite a finding. With the above observations the transfer petitions are dismissed. There will be no order as to costs."

[20] In view of the facts and circumstances of the case and

the principles laid down by the Hon'ble Supreme Court in the case of

Kaushik Chatterjee (Supra), the criminal revision petition stands

dismissed with a direction that if either of the parties re-agitates the

issue with regard to territorial jurisdiction the trial court at Agartala will

decide the matter with regard to territorial jurisdiction only after

recording evidence. Otherwise the trial court at Agartala will proceed

with the trial of the case and dispose the matter as early as possible.

[21] In terms of the above, the case is disposed of. Send

down the LCR. Pending application(s), if any, shall also stand disposed

of.

(JUDGE)

Rudradeep

Crl. Rev. P. No. 24 of 2021