# Dharmendra Kumar Tiwari v. State of U.P. & Anr

- **Citation:** (2020) 9 ILRA 1042
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-09
- **Case number:** Application U/S 482 No. 12537 of 2019
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmendra-kumar-tiwari-v-state-of-u-p-anr-45917
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860-
Section 498A of I.P.C. - Code of Criminal
Procedure, 1973- Section 177 - Territorial
Jurisdiction- The offence under section 498A
of the IPC is a continuing offence- In a case
where a trial can be held in any of the places
falling
within
the
purview
of
the
aforementioned provision, investigation can
be conducted by the officer-in-charge of the
police
station
concerned,
which
has
jurisdiction to investigate in relation there
to. Section 178(b) of Cr.P.C.-Speaks of cases
when an offence is committed partly in one
area and partly in another area, that the
courts having jurisdiction in both the areas
have got territorial jurisdiction to take
cognizance of an offence.

Since the offence u/s 498A of the IPC is a
continuing offence, hence the courts having
jurisdiction in both the areas, e.i matrimonial as
well as parental home of the wife will have the
jurisdiction to take cognizance of the said
offence.

Criminal Law -Code of Criminal Procedure,
1973- Section 227- 239- Charge- Third
round of litigation- Application u/s 482
Cr.P.C. was filed with same contentions,
which were previously declined twice. An
option was given for moving discharge
application, if any, u/s 239, 227/228
Cr.P.C., as the case may be. But it was not
raised at that time and charge has already
been framed. Pre-trial charge acquittal is
not permissible. At the time of disposal of
application
u/s
227
or
239
Cr.P.C.
meticulous
analysis
of
facts
and
circumstances with marshaling of facts
and application of judicial precedent is not
to be made by trial court at that stage.

It is settled law that charge can be framed even
on the ground of strong suspicion and the court
is not required to analyse the facts in a detailed
manner.

Criminal Application rejected. (Para 6, 7, 9,
17) (E-3)

Case law relied upon/ Discussed: -

## Text

1042 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)09ILR A1042
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.07.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 12537 of 2019

Dharmendra Kumar Tiwari ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Kamla Kant Mishra, Sri Varun Mishra

Counsel for the Opposite Parties:
A.G.A., Sri Jitendra Kumar Mishra, Sri Lok
Nath Shukla

Criminal Law - Indian Penal Code, 1860-
Section 498A of I.P.C. - Code of Criminal
Procedure, 1973- Section 177 - Territorial
Jurisdiction- The offence under section 498A
of the IPC is a continuing offence- In a case
where a trial can be held in any of the places
falling
within
the
purview
of
the
aforementioned provision, investigation can
be conducted by the officer-in-charge of the
police
station
concerned,
which
has
jurisdiction to investigate in relation there
to. Section 178(b) of Cr.P.C.-Speaks of cases
when an offence is committed partly in one
area and partly in another area, that the
courts having jurisdiction in both the areas
have got territorial jurisdiction to take
cognizance of an offence.

Since the offence u/s 498A of the IPC is a
continuing offence, hence the courts having
jurisdiction in both the areas, e.i matrimonial as
well as parental home of the wife will have the
jurisdiction to take cognizance of the said
offence.

Criminal Law -Code of Criminal Procedure,
1973- Section 227- 239- Charge- Third
round of litigation- Application u/s 482
Cr.P.C. was filed with same contentions,
which were previously declined twice. An
option was given for moving discharge
application, if any, u/s 239, 227/228
Cr.P.C., as the case may be. But it was not
raised at that time and charge has already
been framed. Pre-trial charge acquittal is
not permissible. At the time of disposal of
application
u/s
227
or
239
Cr.P.C.
meticulous
analysis
of
facts
and
circumstances with marshaling of facts
and application of judicial precedent is not
to be made by trial court at that stage.

It is settled law that charge can be framed even
on the ground of strong suspicion and the court
is not required to analyse the facts in a detailed
manner.

Criminal Application rejected. (Para 6, 7, 9,
17) (E-3)

Case law relied upon/ Discussed: -

1. Naresh Kavarchand Khatri Vs St. of Guj.,
(2008) 8 SCC 300

2. Ratilal Bhanji Mithani Vs St. of Maha. & Ors,
AIR 1979 SC 94,

3. Palwinder Singh Vs Balwinder Singh & ors,
(2008) 14 SCC 504

4. R.S. Nayak Vs A.R. Antulay & anr, AIR 1986
SC 2045

(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. This application u/s 482 of Cr.P.C.
has been filed by Dharmendra Kumar
Tiwari against State of U.P. and Ajit
Kumar Pandey with a prayer to quash
impugned judgment and order dated
16.1.2019, passed by C.J.M., Bhadohi at
Gyanpur, along with entire proceeding of
Criminal Case No. 2596 of 2015, State Vs.
Dilwar Tiwari and others, pending before
above court, arising out of Case Crime No.
147 of 2013, u/s 498A, 504, 506 I.P.C. and
3/ 4 D.P. Act, P.S. Gopiganj, District Sant
Ravidas Nagar (Bhadohi), because of being
9 All. Dharmendra Kumar Tiwari Vs. State of U.P. & Anr.
1043
beyond jurisdiction of above Court, as per
provisions of sections 177 and 178 of
Cr.P.C.

2. Learned counsel for applicant
argued that Dharmendra Kumar Tiwari was
married with Madhulika, daughter of O.P.
No. 2 on 2.12.2007, as per Hindu rituals.
Child Ansh Tiwari was born on 7.1.2011 at
Bangluru, where his parents were residing.
On 2.11.2011 Sohan Lal Pandey, father of
O.P. No. 2 and grandfather of Madhulika,
took Madhulika, leaving behind a tiny child
of ten months at Bangluru, to Mungra
Badshahpur, District Jaunpur, where O.P.
No. 2 was residing, because of being at job
of
Manager
at
Hawkins
Company,
Sathariya, Mungra Badshahpur, District
Jaunpur. It was a journey by Flight, born by
applicant. Then after Smt. Madhulika
refused to cohabitate with applicant at
Bangluru. Letters, dated 13/14.6.2013 as
well as 1.7.2013, were written for and on
behalf of applicant to Smt. Madhulika,
requesting her to resume her marital
obligations, but she was not amenable.
Rather this case crime number was got
registered at Police Station Gopiganj,
District Sant Ravidas Nagar Bhadohi, with
a concocted story on 7.3.2013. A Criminal
Misc. Writ Petition No. 14704 of 2013 was
filed before this court, with a prayer for
quashing of F.I.R. of Case Crime No. 147
of 2013 and it was decided on 5.8.2014.
Subsequently, a case for maintenance u/s
125 Cr.P.C. being Case No. 70/21 of 2013,
was filed by Madhulika before the Court of
Judicial Magistrate Bhadohi and it was
decided on 4.12.2017 by the court of
Principal Judge, Family Court, Bhadhohi,
wherein a restoration application was
moved and was decided on 28.8.2018.
Investigation resulted in submission of
charge sheet for offences punishable u/s
498A, 504, 506 I.P.C. and 3/ 4 D.P. Act,
whereas no part of offence ever accrued
within
the
territorial
jurisdiction
of
Sessions Division Bhadohi or Police
Station
Gopiganj,
because
just
after
marriage Madhulika went with applicant at
Bangluru, where she resided and from there
she was taken by her grandfather to
Mungra Badhshahpur, District Jaunpur.
Hence cause of action, if any, may be said
to have accrued either within the territorial
area of Court of Bangluru or Jaunpur. But
without any jurisdiction this case crime
number was filed and cognizance was
taken. This trial was in utter disregard to
provisions of sections 177 and 178 of
Cr.P.C. and thereby it was beyond
jurisdiction of Court of C.J.M., Bhadohi.
Madhulika, in her testimony, recorded as
PW1 before Court of Additional Judge,
Family Court, Bhadohi at Gyanpur, in Case
No. 70 of 2013 u/s 125 Cr.P.C., has
categorically stated that she was residing
with her father at Mungra Badshahpur,
District Jaunpur, and this piece of evidence
was an evidence under section 3 of the
Evidence Act. A proceeding u/s 482 No.
29730 of 2015, Dharmendra Kumar Tiwari
and four others Vs. State of U.P. and
another, was filed with a prayer to quash
the proceeding of aforesaid criminal case,
wherein, leaving applicant, for remaining
accused persons, accusation was quashed.
Then after applicant appeared before Court,
wherein he was granted bail. Trial
proceeded. Again a proceeding u/s 482
Cr.P.C. was filed before this court with a
prayer for quashing proceeding because of
devoid of jurisdiction and it was dismissed
with an observation of moving discharge
application before trial court. Thereafter
discharge application was moved before
trial court and those facts were mentioned.
But the trial court dismissed above
application without applying its judicial
mind and giving reason for the same.
1044 INDIAN LAW REPORTS ALLAHABAD SERIES
Hence this application has been filed with
above prayer for ends of justice and
avoiding misuse of process of law.

3. Learned counsel for O.P. No. 2 has
vehemently opposed the application by
pressing counter affidavit, filed by O.P. No.
2, that it was a marriage solemnized in
between applicant and Madhulika at
parental
house
situated
at
Village
Bhawanipur, within the area of P.S.
Gopiganj, and Sessions Division Bhadohi
at Gyanpur. Dowry, as per rituals, were
given, then after Smt. Madhulika was taken
to Bangluru, where persistent demand of
dowry, in form of Rs. Five lacs, and cruelty
with regard to it was there. Sometimes, it
was partly fulfilled and persuasion with
request was being made for not doing such
cruelty. In between child Ansh was born.
Then
after
cruelty
accelerated.
The
grandfather of Madhulika brought her from
Bangluru to Delhi and from Delhi to
Mungra Badshahpur, District Jaunpur,
where father of Madhulika was at job as
Manager in Hawkins Company, Sathariya,
District Jaunpur and was residing there at.
Subsequently she was taken by applicant,
her child was snatched and she was brought
by Bolero and was thrashed, abused and
left over near a tubewell of village
Bhawanipur,
P.S.
Gopiganj,
District
Bhadohi, at 9.00 A.M. of 01.6.2013, from
where she went to her ancestral house in
above village and this report was got
lodged, wherein two times proceedings
were challenged in applications moved u/s
482 Cr.P.C. and this fact was taken by
applicant. For husband both of applications
were dismissed and this was not accepted
by this court in above proceedings u/s 482
Cr.P.C. Though, an option for moving
discharge application at appropriate stage
was given. But the charge was already
framed and trial was proceeding, wherein
three witnesses including victim were
examined and then after an application u/s
239 Cr.P.C. was moved with same
repetition of allegations and vide impugned
order it was rejected. This order is a
reasoned and elaborate order. Offence
punishable u/s 498A I.P.C. is a continuing
offence.
Admittedly,
marriage
was
performed at Village Bhawanipur, within
the area of P.S. Gopiganj, and of Sessions
Division Bhadohi at Gyanpur, and since
marriage, performed on 2.12.2007, there
was persistent demand of dowry coupled
with cruelty with regard to it. The sequence
of cruelty was there, including one
occurrence
wherein
grandfather
of
Madhulika had brought her to Jaunpur.
This occurrence of 1.6.2013 was the last
cruelty made by applicant and his relatives
and this occurred as a part of cruelty at
above village of Bhawanipur within the
area of Sessions Division Bhadohi at
Gyanpur. Hence this application is of no
force, be dismissed.

4. Learned AGA has also vehemently
opposed the application.

5. The submissions made by learned
counsel
for
the
applicant
call
for
adjudication on pure questions of fact,
which may be adequately adjudicated upon
only by the trial court and while doing so
even the submissions made on points of
law can also be more appropriately gone
into by the trial court in this case. Veracity
of the statements are material evidence of
fact and is not to be ascertained in this
proceeding u/s 482 Cr.P.C. by this Court.
Because the same is within the jurisdiction
of Trial Court and is a point of fact to be
seen in the trial.

6. Offence punishable u/s 498A of
I.P.C. was added in the Penal Code by
9 All. Dharmendra Kumar Tiwari Vs. State of U.P. & Anr.
1045
Criminal Law (Second Amendment) Act of
1983, which came into force with effect
from 25th of December, 1983. This section
reflects the anxiety to extend protection of
the weaker spouse. Traditionally in any
society, a woman is subjected to the whims
or caprices of man, especially when it
relates to the relationship of husband and
wife. Life for a woman in the family of the
husband is sometimes so intolerable and so
miserable that it drags the woman towards
suicide and it is in such cases that Section
498-A I.P.C. comes into play. This offence
is a continuing offence.

7. Section 177 of Chapter XI of Code of
Criminal Procedure, 1973 provides about
ordinary place of enquiry and trial that every
offence shall ordinarily be inquired into and
tried by a Court within whose local
jurisdiction it was committed. This section
has been elaborately discussed by the Apex
Court in Naresh Kavarchand Khatri Vs.
State of Gujarat, (2008) 8 SCC 300 that
whether an officer-in-charge of a police
station has the requisite jurisdiction to make
investigation or not? will depend upon a large
number of factors, including those contained
in section 177, 178 and 181 of the Code of
Criminal Procedure. In a case where a trial
can be held in any of the places falling within
the purview of the aforementioned provision,
investigation can be conducted by the officerin-charge of the police station concerned,
which has jurisdiction to investigate in
relation there to. Section 181(4) Cr.P.C. is
also relevant in this regard.

8. Section 178 in the Code Of
Criminal Procedure, 1973 provides 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.

9. Meaning thereby section 178(b) of
Cr.P.C. does not envisage a position in
which one ingredient of the offence is
committed at one place and other is
committed at another place. But it speaks
of cases when an offence is committed
partly in one area and partly in another
area, that the courts having jurisdiction in
both
the
areas
have
got
territorial
jurisdiction to take cognizance of an
offence.

10. In the present case, it is an
undisputed fact that the marriage was
performed at Village Bhawanipur, within
the area of police station Gopiganj falling
in the jurisdiction of Sessions Division
Bhadohi at Gyanpur and accusation is of
leaving Smt. Madhulika near Tubewell of
Village
Bhawanipur,
P.S.
Gopiganj,
District Bhadohi, on 1.6.2013 at 9.00 A.M.
after threshing and abusing her by her
husband and his relatives, after snatching
her son i.e. this part of offence was
specifically said to have been committed
within the area of P.S. Gopiganj, District
Bhadohi. Now veracity of this part is to be
seen by trial court on the basis of evidence
led before it and it is within the jurisdiction
of trial court itself. This court in exercise of
inherent jurisdiction u/s 482 Cr.P.C. is not
to analyse facts and evidence.
1046 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Judgement of Court of Additional
District Judge/ Judge, Family Court,
Bhadohi at Gyanpur, in Case No. 70 of
2013 dated 4.12.2017 has been very
vehemently pressed by learned counsel for
applicant. Wherein in this case too specific
occurrence of snatching of child and
leaving Smt. Madhulika near Tubewell of
village Bhawanipur within district of
Bhadohi, after threshing and abusing her on
1.6.2013 has been said and contention of
applicant was not accepted by above court.

12. Applicant himself has filed M.C.
No. 1023 of 2015 u/s 9 of Hindu Marriage
Act before the Court at Bangluru and copy
of petition has been filed by applicant,
which
reveals
that
the
address
of
Madhulika has been given as of Village
Bhawanipur,
P.S.
Gopiganj,
District
Bhadohi.
Meaning
thereby
applicant
himself has given the address of Smt.
Madhulika as of district Bhadohi. It itself
proves that Madhulika was residing at
Village Bhawanipur within the area of
Sessions Division Bhadohi at Gyanpur.

13. Applicant, along with others, had
filed an Application u/s 482 No. 29730 of
2015, Dharmendra Kumar Tiwari and four
others Vs. State of U.P. and another, with
same contentions and after hearing both
sides,
this
court,
vide
order
dated
15.10.2015, has refused to give any relief
to the applicant. Meaning thereby his
contention was not accepted and there was
no abuse of process of law with regard to
present
applicant-husband.
Again
subsequent proceeding u/s 482 Cr.P.C. was
filed by applicant. Though, first one was
dismissed and this subsequent proceeding
i.e. Application u/s 482 No. 40268 of 2018,
Dharmendra Vs. State of U.P. and another,
was with specific defence regarding nonjurisdiction of court of C.J.M., Bhadohi at
Gyanpur. This too was dismissed having no
substance in it. Meaning thereby present
contention was previously taken, it was
heard and declined. Again this third round
Application u/s 482 Cr.P.C. was filed with
same contentions, which were previously
declined twice.

14. No doubt an option was given for
moving discharge application, if any, u/s
239, 227/228 Cr.P.C., as the case may be.
But it was not raised at that time and charge
has already been framed. Whereas trial
court has specifically mentioned that trial
was being proceeded wherein charge was
framed. Hence as per law laid down by
Apex Court in Ratilal Bhanji Mithani Vs.
the State of Maharashtra and others, AIR
1979 SC 94, that after framing of charge
the Magistrate remains with no jurisdiction
for hearing over discharge application.

15. Apex Court in Palwinder Singh
Vs. Balwinder Singh and others, (2008) 14
SCC 504, has propounded pre-trial charge
acquittal is not permissible. Jurisdiction of
trial court while exercising power u/s 227
or 239 Cr.P.C. Charges can be framed also
on
the
basis
of
strong
suspicion.
Marshaling of facts and appreciation of
evidence is not in the domain of the Court
at that point of time.

16. Apex Court in R.S. Nayak vs A.R.
Antulay and another, AIR 1986 SC 2045,
has propounded that at the time of disposal
of
discharge
application
no
detailed
evaluation of the material or meticulous
consideration of possible defences need be
undertaken at this stage. Meaning thereby
at the time of disposal of application u/s
227 or 239 Cr.P.C. meticulous analysis of
facts and circumstances with marshaling of
facts and application of judicial precedent
is not to be made by trial court at that stage.
9 All. Dharmendra Kumar Tiwari Vs. State of U.P. & Anr.
1047

17. In the present case ,plea of
jurisdiction was raised by applicant in two
proceedings filed u/s 482 Cr.P.C. and it
was declined. Charge was framed, but this
was not disclosed. Hence option was given
for moving of discharge application, if any,
and it was decided by a reasoned and
elaborate order. There is no abuse of
process of law or failure of ends of justice.

18. Accordingly, this application
merits its dismissal. Dismissed as such.
----------