The Gauhati High Court has quashed criminal proceedings instituted by a husband against his estranged wife, ruling that the Judicial Magistrate First Class (JMFC), Barpeta, failed to comply with the mandatory provisions of Section 202 of the Code of Criminal Procedure (Cr.P.C.) before issuing process against an accused residing beyond the court’s territorial jurisdiction.
The Bench of Justice Sanjeev Kumar Sharma, in the instant petition, also held that the allegations in the complaint did not prima facie constitute an offense under Section 406 of the Indian Penal Code (IPC), as the essential ingredient of “entrustment” was absent.
Background of the Case
The petitioner-wife married the respondent-husband in the year 2000. They have two children. The petitioner alleged that during the subsistence of the marriage, the respondent married another woman and subjected her to cruelty. Consequently, she left the matrimonial home on March 7, 2022, and has since been residing at her parental home in Dhubri district.
Following her departure, the petitioner filed a case under the Protection of Women from Domestic Violence Act, 2005, and a maintenance petition under Section 125 Cr.P.C., both of which are pending before the Sub-Divisional Magistrate, Bilasipara. An interim maintenance order was passed in her favor.
Subsequently, the respondent-husband instituted a complaint case before the Chief Judicial Magistrate, Barpeta, alleging that on March 7, 2022, the petitioner had “stolen all necessary documents” belonging to him and their children and kept them in her custody. The case was transferred to the JMFC, Barpeta. After recording the depositions of the complainant and witnesses, the Magistrate took cognizance of the offence and issued process against the petitioner on November 23, 2022.
The petitioner approached the High Court seeking the quashing of the cognizance order and the proceedings, arguing procedural illegality and lack of merit.
Arguments
Mr. S. S. Ahmed, learned counsel for the petitioner, submitted that the impugned order was “wholly illegal” because the Magistrate issued process without adhering to Section 202 Cr.P.C. He argued that since the petitioner resides in Dhubri, which is outside the territorial jurisdiction of the JMFC, Barpeta, the Magistrate was required to postpone the issue of process and either inquire into the case himself or direct an investigation.
Per contra, Mr. H. A. Ahmed, learned counsel for the respondent-husband, contended that since the Magistrate had recorded the depositions of the complainant and his witnesses, there was no necessity to order a police investigation, notwithstanding the fact that the accused resided outside the court’s jurisdiction.
Court’s Analysis and Observations
Mandatory Compliance with Section 202 Cr.P.C.
The High Court examined Section 202 of the Cr.P.C., specifically the amendment regarding accused persons residing beyond the area of the Magistrate’s jurisdiction.
Justice Sharma observed:
“A bare perusal of Section 202 Cr.P.C. would show that where the accused resides at a place beyond the jurisdiction of the Magistrate, the Magistrate is mandatorily required to postpone the issuance of process and either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.”
The Court rejected the respondent’s argument that examining witnesses under Section 200 Cr.P.C. negates the need for investigation under Section 202 when the accused is outside the jurisdiction. The Court clarified that while examining the complainant and witnesses is a prerequisite before directing an investigation in private complaints, it does not replace the mandatory requirement of inquiry or investigation under Section 202(1) for out-of-jurisdiction accused.
The Court noted:
“In the instant case, the learned JMFC straightaway took cognizance of the matter after recording the initial depositions of the complainant and the witnesses present, without directing an investigation to be made by a police officer or other person for the purpose of deciding whether or not there was sufficient ground for proceeding.”
No Offense under Section 406 IPC
The Court also examined the merit of the charges. The Magistrate had taken cognizance under Section 406 IPC (Criminal Breach of Trust). The Court referred to the definition under Section 405 IPC, highlighting that “entrustment of property” and “dishonest misappropriation” are essential ingredients.
Upon reviewing the complaint, the Court found that the husband alleged the petitioner “stole” the documents.
The Court observed:
“There is no allegation that the petitioner dishonestly misappropriated or converted the said documents, articles, or any cash to her own use, nor is there any allegation that she dishonestly used or disposed of the property in violation of any direction of law or any legal contract… which would amount to ‘criminal breach of trust’.”
The Court concluded that no offense under Section 406 IPC was made out even on the face of the complaint.
Decision
Relying on the principles laid down by the Supreme Court in State of Haryana v. Bhajan Lal, the High Court allowed the criminal petition.
Justice Sharma held:
“In view of the aforesaid discussion, the impugned order dated 23.11.2022 as well as the criminal proceedings in Complaint Case No. 375/2022 are hereby quashed.”
Case Details:
Case Title: Narjina @ Narzina Khatun vs. The State of Assam and Anr
Case No.: Crl.Pet./285/2025
Bench: Justice Sanjeev Kumar Sharma
