SHIPRA RAJ ROY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioner has preferred the instant revisional application under Section 482 of the Code of Criminal Procedure (in short the Code) praying for quashing the criminal proceeding being G.R. Case No. 185 of 2006 arising out of Durgapur New Township Police Station (in short N.T.P.S.) Case No. 22 of 2006 dated 1.3.06 under Sections 498A/406/420/506/34 of the Indian Penal Code (in short the I.P.C.) now pending in the Court of the learned Additional Chief Judicial Magistrate (in short the ACJM), Durgapur.

(2.) Mr. Sudipto Moitra, the learned Advocate appearing for the petitioner submitted that offence under Section 406 of the I.P.C. is not a continuing offence. Elements of Section 406 of the I.P.C. starts from entrustment and in the FIR lodged by the informant/O.P. No. 2 it was only stated that during marriage complainant's father gave 41 bhories of gold ornaments and other things as per list and at the time of marriage the relatives of the complainant handed over those things to the accused person. Mr. Moitra submitted that this averment in the FIR does not attract elements of Section 406 of the I.P.C. as it fails to establish proper entrustment. In the marriage besides the parents, other relatives, guests and friends offer gifts. The FIR reveals that after the marriage ceremony was over the accused persons and the informant went to Mumbai and it does not establish entrustment as the wife herself accompanied the accused persons to Mumbai. There was no averment in the FIR that on demand the petitioner and other accused persons refused to return the 'stridhan' articles or converted the same to their own use.

(3.) Mr. Moitra further submitted that a plain reading of the FIR without adding anything to it or subtracting anything from it would reveal clearly that it is a vires of Section 498A of the I.P.C. The FIR reveals that the entire incident relating to torture on the wife demanding dowry took place at Mumbai in the flat of accused persons. The entire cause of action arose within the jurisdiction of the Mumbai Court and the learned Magistrate of Durgapur is not empowered to take cognizance of the offence and the learned Magistrate of Durgapur was not even competent to sent the written complaint to the concerned O.C. for investigation under Section 156(3} of the Code treating the complaint as FIR. It was not a FIR under Section 154 of the Code and the languages of Section 156(3) of the Code are different from the language of Section 154 of the Code. As the entire incident, took place within the jurisdiction of Mumbai Court, the learned Magistrate of Durgapur was not at all competent to direct the concerned police officer of Durgapur N.T.P.S. to cause investigation.