Misra, J.

1. Rama Chandra Choudhury (complainant) filed a complaint on 10-5-1963 alleging that Debi Rani Choudhury (accused No. 1) is his legally married wife and that they lived as husband and wife till August, 1961. They have a daughter aged about 6 years and a son aged 2 years. Narayan Chandra Ghose (accused No. 2), the proprietor of Milap Hotel at Visakhapatnam in Andhra Pradesh, kidnapped his wife and children from his lawful guardianship during his absence. Accused No. 1 started a case for divorce in the Court of the District Judge at Visakhapatnam which was dismissed. Accused Nos. 1 and 2 went through a void marriage and are living as husband and wife. The complaint was thus filed under Sections 363 and 494, Indian Penal Code against accused No. 1 and under Sections 363, 497 and 498, Indian Penal Code against accused No. 2. On the very day the learned Magistrate passed the following order:

Statement of complainant recorded on S.A. I am satisfied that there is prima facie case under Sections 363, 498 against accused Narayan Prasad Ghosh and under Section 494 against Debi Rani Choudhury. Cognizance taken. Summon the accused persons. ... ... ... ... ...

On 7-8-1963 an application was filed before the learned Magistrate to review his order dated 10-5-1963 on the allegation that the offences of which cognizance had been taken were triable by a competent Magistrate at Visakhapatnam, and that the Sub-Divisional Magistrate, Titilagarh, before whom the complaint had been tiled, had no jurisdiction to try the said offences. The learned Magistrate accepted the contention and passed the following order on that very day:

Heard the advocates of the parties. On the facts already stated in the complaint petition and in the initial deposition of the complainant, I am satisfied that there is no case under Section 494, Indian Penal Code against Debi Rani Choudhury. Relying on the decision of our own High Court reported in Krishna Mohan v. Sudhakar Das : 19 C.L.T. 330 A.I.R. 1953 Ori 281, I hold that this Court has inherent powers to review its own orders and therefore

(I) discharge accused Debi Rani Choudhury as this, Court has no jurisdiction.

This order has been set aside by the learned Sessions J. judge, Bolangir, on 21-8-1964. He held that there was no material on record to show that the second marriage took place at Visakhapatnam and that the proper course for the Magistrate was to r record evidence as to the place where the second marriage took place and thereafter to decide whether he had jurisdiction or not. This revision is against the order of the- learned Sessions Judge.

2. Mr. Rath advanced the following contentions

(i) The complaint petition closely scrutinised, shows that the second marriage is alleged to have taken place at Visakhapatnam.

(ii) It is for the complainant to show that the Court has jurisdiction to try a particular offence. If the complaint petition is silent as to where the second marriage took place, it is liable to be dismissed in limine and the learned Magistrate should not have taken cognizance.

(iii) If the complaint petition and the examination of the accused on oath under Section 200, Code of Criminal Procedure did not indicate the place of second marriage, and illegal process had been issued against the accused, it was open to the learned Magistrate to quash the proceeding on the protest of the accused, after their appearance in obedience to the summonses, without taking further evidence as to the question of territial jurisdiction.

3. The first contention that the complaint shows that the second marriage took place at Visakhapatnam is not correct. From the chronology of facts, narrated in the complaint petition, one may largely infer that the second marriage might have taken place at Visakhapatnam. There is, however, no unequivocal admission. In the circumstances, it would be difficult to bold that the second marriage took place at Visakhapatnam and not within the jurisdiction of the Sub-Divisional Magistrate, Titilagarh.

4. The second contention that the complaint petition should indicate that the Magistrate had territorial jurisdiction to try offence under Section 494, Indian Penal Code is correct. Section 494, Indian Penal Code runs as follows:

Whoever, having a husband or wife living, married in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Under Section 177, Criminal Procedure Code, every offence shall ordinarily be enquired into and tried by a Court within the local limits of whose jurisdiction it was committed. It is for the complainant to indicate in the complaint petition that the offence under Section 494, Indian Penal Code was committed within the local limits of the Magistrate, First Class, Titilagarh. Mr. Mohanty, however, contended that even if the second marriage had taken place at Visakhapatnam, the Magistrate would get jurisdiction to try the case at Titilagarh under Section 179, Criminal Procedure Code. Section 179, Code of Criminal Procedure says:

When a person is accused of the commission of any offence by reason of anything which has been done, and of any consequence which has ensued, such offence may be inquired into or tried by a Curt within the local limits of whose jurisdiction any such consequence has ensued.

It was argued that if the second marriage had taken place at Visakhapatnam, consequences had ensued at Titilagarh.

In Kasiram Meheta v. King Emperor : A.I.R. 1934 All. 499 it was held that Section 179, Code of Criminal Procedure contemplates cases where the act done and the consequence ensuing therefrom together construe the offence. If the offence is complete in itself by reason of the act having been done, and the consequence is a mere result of it which was not essential for the completion of the offence, then Section 179 would not be applicable. The consequence that arises from the act of second marriage is that the complainant is deprived of the consortium of the wife at his place. Though the consequence arises at the house of the complainant, it is not at all an ingredient of the offence under Section 494, Indian Penal Code. The consequence is wholly immaterial. The liability of the offender does not at all depend upon that consequence. Section 179, Code of Criminal Procedure has no application to an offence under Section 494, Indian Penal Code, See Ibarat Husain v. State : A.I.R. 1955 All. 363 [LQ/AllHC/1955/26] and M.H. Alexander v. Claira Alexander : A.I.R. 1959 All. 67 [LQ/AllHC/1958/190 ;] .

If in the complaint petition there were clear recitals that the second marriage took place at Visakhapatnam, the Magistrate would be perfectly justified in not taking cognizance and is dismissing the complaint. Ibarat Husain v. State : A.I.R. 1955 All. 363, [LQ/AllHC/1955/26] illustrates such a case. In the complaint petition in that case, the complainants wife was taken away from his house in Kanpur to district Gonda where she was remarried to the accused. Complaint was filed in Kanpur. It was contended that the Court at Kanpur had no jurisdiction to try an offence under Section 494, Indian Penal Code. Though cognizance had been taken and process had been issued, the complaint was dismissed on the ground of want of jurisdiction without prejudice to the right of the complainant to file a fresh complaint in a Court of competent Jurisdiction. This case was correctly decided. Though lack of territorial jurisdiction was writ large, on the face of the plaint petition the Magistrate failed to take notice of it, took cognizance and issued process. The objection of the accused to the lack of territorial jurisdiction on the basis of the complaint petition was rightly upheld and the proceeding dropped. That case does not, however, establish the consequent proposition that if the complaint was silent as to the existence of lack of territorial jurisdiction, the proceeding is to be quashed on the basis of lack of averment in the complaint petition, without taking further evidence, even after issue of process.

In M.H. Alexander v. Claira Alexander4 the complaint was filed at Lucknow. It did not disclose as to when and where the bigamous marriage was performed. Even in the statement on oath under Section 200, Criminal Procedure Code, no such information was supplied. The learned Judge observed that the complaint should not have been entertained at all.

It may be observed that cognizance is taken on complaint when the Magistrate applies his mind for proceeding under the various provisions of Chapter XV I of the Code of Criminal Procedure. In Jamuna Singh v. Bhadai Shah : 1964 S.C.D. 103 : A.I.R. 1964 S.C. 1541, their Lordships clarified thus. That section (Section 200, Criminal Procedure Code) itself states that the Magistrate taking cognizance of an offence on a complaint shall at on examine the complainant and the witnesses present, if any, upon oath. This examination by the Magistrate under Section 200 of the Code of Criminal Procedure puts it beyond doubt that the Magistrate did take cognizance of the offences mentioned in the complaint. After completing such examination and recording the substance of it to writing as required by Section 200, the Magistrate could have issued process at once under Section 204 of the Code of Criminal Procedure or could have dismissed the complaint under Section 203 of the Code of Criminal Procedure.

In this case, the Magistrate, while examining the complain ant under Section 200, Code of Criminal Procedure could have put a question as to where the second marriage took place to determine his territorial jurisdiction and could have dismissed the complaint under Section 494, Indian Penal Code, if the answer was that it took place at Visakhapatnam. He was not alive to the existence or otherwise of the territorial jurisdiction and accordingly issued processes under Section 204, Criminal Procedure Code.

Mr. Mohanty placed reliance on Ram Narain v. The State : A.I.R. 1956 P&H 127, in support of his contention that facts relating to the existence of territorial jurisdiction need not be mentioned in the complaint petition as there is no specific provision in the Code prescribing it. In that case, cognisance was taken under Section 190(1)(b), Code of Criminal Procedure on the basis of a charge sheet filed by the police on first information report. The principle discussed therein would, however, apply to the case of a complainant when cognizance is taken under Section 190(1)(a). His Lordship made a reference to Order 7, Rule 1 and Order 14, Rule 2, of the Code of Code of Civil Procedure in drawing the analogy that in civil cases, facts showing that the Court has jurisdiction are to be stated in the plaint and that there is no corresponding provision in the Code of Criminal Procedure. With respect, I am unable to accept the reasoning as correct. Whether there is any specific provision in the Code or not, the Court itself must that it has got jurisdiction. It is the duty of the party initiating a proceeding to show that the Court is competent and has jurisdiction to entertain the complaint. I am clearly of opinion that it is open to a Magistrate to dismiss a complaint if it does not indicate the existence of territorial jurisdiction, either in the complaint petition itself or in the examination of the complainant on oath under Section 200, Criminal Procedure Code.

5. The third question for consideration, however, is either a Magistrate has jurisdiction to drop a proceeding even after issue of process merely on the basis of lack of averment in the complaint petition or assertion in the examination on oath conferring territorial jurisdiction without giving opportunity to the prosecution to establish by evidence facts showing existence of territorial jurisdiction. In my view, the answer must be in the affirmative. A Magistrate is competent to decide at any stage whether he has jurisdiction or not. The point of jurisdiction also be raised by parties at any stage-(See Mt. Bhagwati v. Emperor : A.I.R. 1925 Pat 187. Section 531, Code of Criminal Procedure, lays down:

No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong area, unless it appears that such error has in fact occasioned a failure of justice.

On its basis it has been contended that when process had been issued, the trial should proceed as ultimately it cannot be set aside unless the error of jurisdiction has in fact occasioned a failure of justice. In Radharani and Anr. v. Rahim Sardar A.I.R. 1946 Cal. 459 [LQ/CalHC/1946/31] their Lordships formulated the proposition of law thus:

It is even then open to question whether the Naogaon Court has any jurisdiction to try the charge under Section 373. Mr. Chakravarty opposing this rule has adopted the argument of the learned Magistrate and argued that Section 531, Criminal Procedure Code, gives the Magistrate jurisdiction. We do not read Section 531 in that sense. In our opinion Section 531 cures irregular proceedings wrongly held in a wrong area unless it appears that the error as to territorial jurisdiction has in fact occasioned a failure of justice. Section 531 does not entitle a Magistrate to proceed with a trial in the wrong local area with his eyes open to the fact that he has no territorial jurisdiction. It does not in fact confer a jurisdiction; on the Magistrate.

This decision lays down the correct law.

In this case, the Court was not alive to the question of absence of territorial jurisdiction until the accused put in objection after issue of processes. At this state, the Court can determine whether it has jurisdiction or not. Merely from the absence of materials in the complaint petition and the examination of the complainant on oath, the Court cannot hold that it has no jurisdiction. It thus becomes elementary that the Magistrate would go into the question of jurisdiction and allow the parties to adduce evidence in support of their respective cases. Processes had been issued on the assumption that the Court had jurisdiction. The clock, cannot be put back unless the Court positively finds on evidence absence of jurisdiction. : A.I.R. 1959 All 67, [LQ/AllHC/1958/190 ;] does not lay down any contrary view. In that case, the revision was at the instance of the complainant challenging the order of the Magistrate in not allowing him to lead evidence to prove the factum of marriage at Allahabad and it was not for quashing the proceeding. The complaint had been filed at Lucknow and the complainant stated that the second bigamous marriage was performed at Allahabad. If the application had been filed by the accused, in that case, for quashing of the proceeding, his Lordship would have presumably allowed the revision on his own reasonings.

6. Mr. Mohanty placed strong reliance on Section 253, Code of Criminal Procedure and 1963 (1) Criminal Law Journal, 347 (a decision of a learned Single Judge of the Allahabad High Court) in support of his contention that some evidence must be taken under Section 253(2), Code of Criminal Procedure before discharging the accused on a finding that the Magistrate has no jurisdiction. The entire Section 253 relates to the discharge of the accused on merits in the absence of evidence. The section throws no light as to powers of the Court to examine its jurisdiction after the issue of process. Section 253 is therefore of no help.

7. The legal position on the basis of aforesaid discussion may be summed up

(i) If the complaint petition does not disclose the existence of territorial jurisdiction, the Magistrate has got power to dismiss it. The same is the position relating to the examination of the complainant on oath under Section 200, Criminal Procedure Code.

(ii) If either in the complaint petition or in the statement on oath, there are statements of fact Gusting the jurisdiction, the Magistrate can drop the proceeding even after issue of process without giving further opportunity for adducing evidence.

(iii) If, however, the complaint petition and the statement on oath are silent as to facts relating to the existence of territorial jurisdiction, the Magistrate cannot drop the proceeding after issue of process without giving further opportunity to the parties to lead evidence to establish existence or otherwise of territorial jurisdiction.

8. The learned Sessions Judge took the correct view and the revision is dismissed. The trial Magistrate is directed to give opportunity to the parties to lead evidence as to where the second marriage took place. If he comes to the conclusion that it took place at Visakhapatnam, the proceeding against accused No. 1 under Section 494, Indian Penal Code is to be dropped. The trial against accused No. 2 would, however, proceed in any case.

Revision dismissed.