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Lilade Sitade Pavaiya and ors. Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1983CriLJ934; (1982)2GLR734
AppellantLilade Sitade Pavaiya and ors.
RespondentState of Gujarat and ors.
Cases ReferredPrabhu v. Emperor and Lumbhardar Zutshi
Excerpt:
- - 246 of 1982 pending investigation at karelibag police station, baroda city, pursuant to the criminal complaint filed, against the present petitioners as well as other two accused on 21-7-1982 by the complainant one mohammed hanif musabhai vora alleged to be aged 15 years, invoke interference of this court on the ground that the said investigation by the karelibag police station is illegal and unauthorised. the state of gujarat as well as officer-in-charge of karelibag police station and the learned. 1 is alleged to have told the complainant that he will provide him with good service. the aforesaid provision clearly indicates that i various offences have been committed either by the same person or by different persons at the same or different places, they all can be tried at one.....orders.b. majmudar, j.1. in this petition under articles 226 and 227 of the constitution for enforcement of fundamental rights under art, 21 of the constitution, the present three petitioners who are original accused nos. 3 to 5 respectively in criminal case no. 246 of 1982 pending investigation at karelibag police station, baroda city, pursuant to the criminal complaint filed, against the present petitioners as well as other two accused on 21-7-1982 by the complainant one mohammed hanif musabhai vora alleged to be aged 15 years, invoke interference of this court on the ground that the said investigation by the karelibag police station is illegal and unauthorised.2. the petition was admitted to final hearing by bedarkar, j. on 19-8-1982 and it has reached final hearing before me today......
Judgment:
ORDER

S.B. Majmudar, J.

1. In this petition under Articles 226 and 227 of the Constitution for enforcement of fundamental rights under Art, 21 of the Constitution, the present three petitioners who are original accused Nos. 3 to 5 respectively in criminal case No. 246 of 1982 pending investigation at Karelibag police station, Baroda city, pursuant to the criminal complaint filed, against the present petitioners as well as other two accused on 21-7-1982 by the complainant one Mohammed Hanif Musabhai Vora alleged to be aged 15 years, invoke interference of this Court on the ground that the said investigation by the Karelibag police station is illegal and unauthorised.

2. The petition was admitted to final hearing by Bedarkar, J. on 19-8-1982 and it has reached final hearing before me today. The State of Gujarat as well as officer-in-charge of Karelibag police station and the learned. Judicial Magistrate, First Class, Baroda have been joined as parties to the present proceedings.

3. In order to appreciate the grievance of the petitioners, a few relevant facts leading to the present proceedings require to be stated at the outset. The complainant Mohmed Hanif Musabhai Vora who alleges to be 15 years old has filed a criminal complaint at Karelibag police station against five accused out of whom present three petitioners as stated above, are accused Nos. 3, 4 and 5 respectively. Accused No. 1 is one Anopkunvar Kantakunvar, and accused No. 2 is one Kantakunvar Sundarkunvar. The said complaint is filed alleging that the concerned five accused have committed offences under Sections 364, 326, 506, 114 of the I. P. Code. The averments in the complaint against the relevant accused have vital bearing on the result of the present petition and hence it is necessary to note them in details. The complainant had given the aforesaid complaint originally before the Chhota Udepur police station and thereafter it was transferred to Karelibag police station at Baroda where it was registered on 27-7-1982 at 19.30 hours. The complainant has stated in the complaint that he is aged 15 years and he is carrying on occupation of begging. That he is originally resident of Chhota Udepur but at the time of complaint he is said to be residing at Baroda in Baranpura and the exact place of residence is shown to be Hijdana-Akhada which is residential area of eunuchs. The complainant states in his complaint that he is residing in station area with his father Musabhai Adambhai Patel since about one year. That he has four brothers and three sisters. He had gone to Baroda in search of service. He was doing manual labour in a canteen attached to Aradhna talkies at Baroda. He was doing the said manual work since about 1 1/2 years prior to the date of the complaint. During the time he was doing his manual work, in the said canteen, one eunuch approached him. His name was Anopkunvar, that is - accused, No. 1. Accused No. 1 is alleged to have told the complainant that he will provide him with good service. Having given this pretext., he look the complainant with him and kept him at his residence at Akota. During that time, the complainant was putting on pant and bush-shirt. During the complainant's stay with accused No. 1 at Akota, on the next day, another eunuch named Kantakunvar, original accused No. 2 came to the complainant at Akota. Both accused Nos. 1 and 2 told the complainant that they will provide the complainant with services in a hotel. Telling him accordingly, they brought the complainant to Baranpura wherein residential locality called Akhada of Eunuchs is situated. At that place, the complainant was made to put on saree, blouse and skirt. The complainant allegedly resisted but as he was surrounded by large number of eunuchs, his resistance was of no avail. The complainant was forcibly made to put on ladies' dress and on the next day, he was made to go to the surrounding villages and he was made to move therein for about a month and was made to beg. Thereafter, he was brought back to Baranpura locality of Baroda city. The complainant further alleges that he tried to run away from the said place, but he could not do so. He was made to stay at Baranpura for one day more and thereafter he was taken by the aforesaid persons to Kalol (in Mehsana district). The complainant further alleges that accused No. 2 took this complainant to Kalol. That he was threatened by the eunuchs that if he informed anybody of the incident, he would be killed. Under these circumstances, due to the threat of beating, the complainant remained in the control of these eunuchs. They took him near the water tank situated by the side of Kalol depot in Kalol town. The complainant was taken to the house of one Liladie Sitade, eunuch, who is accused No. 3 - present petitioner No. 1. The complainant further state that he stayed there for three days in lady's dress at the place of accused No. 3. On the night of 4th day, accused No. 3 brought one lady from village named Mansa. Her name was Hira who is original accused No. 4, present petitioner No. 2. The complainant was introduced to her. On that night, at about 3 O'clock, accused No. 3 awakened the complainant and took him to the third room of her residential house. The surrounding doors were closed and the radio was put on at full tone. At that time, one Shanker who is accused No. 5 and present petitioner No. 3, came there and as the complainant was shouting, his mouth was gagged and was made to lie down. Accused No. 4 Hira thereafter took out the clothes of the complainant and cut off the private part Of the complainant with a weapon which appeared to be a small sword. The complainant thereafter became unconscious and regained consciousness after six days. He was made to stay at Kalol for about a month and thereafter he was brought back to Baroda in Baranpura locality. The complainant further states that for the aforesaid work, accused Nos. 4 and 5 had, charged Rs. 2,500/- from, accused No. 2. The complainant was thereafter staying at Baroda and by then had paid about Rs. 5,000/- to accused No. 2 by collecting alms. The complainant further states that the entire incident had happened because of ignorance and minor age of the complainant and now he is made to live in this world in the form of a eunuch. That the entire incident occurred against the wish of the complainant and the accused have renamed him as Jyotikunvar Anopkunvar.

4. On the basis of the aforesaid complaint, the, officer-in-charge of Karelibag police station started investigation as the alleged offences are cognisable in nature. It is at this stage that original accused Nos, 3, 4 and 5 have come to this Court by way of the present proceedings.

5. Mr. N. K. Barot, learned Advocate for the petitioners vehemently contended that Karelibag police station officer has no authority or power to initiate and continue investigation against the present three petitioners as the complaint filed against them even though taken at its face value does not disclose any offence committed by these three accused within the local limits of Karelibag police station, Baroda. Consequently, under Section 156(1) of the Code of Criminal Procedure, Karelibag police station has no authority whatsoever to investigate the alleged offences against the, present petitioners. Mr. Barot submitted that if at all any alleged offences are committed by the petitioners, they are said to have been committed exclusively within the local limits of Kalol city police station. He contended that even if the complaint is taken at its face value, the only allegation against the present three petitioners original accused Nos, 3, 4 and 5 respectively is that the complainant was emasculated against his wish by the concerned accused in collusion with each other at Kalol at the house of accused No. 3. That consequently, the offence of forcible emasculation which at the highest may constitute an offence under Section 326 read with Sections 506 and 114, I. P. Code, is alleged to have been committed by the three accused Nos. 3, 4 and 5 respectively at Kalol. That the complaint nowhere alleges that any of these accused had anything to do with the initial offence of kidnapping the complainant which is said to have been committed by original accused Nos. 1 and 2 at Baroda. He, therefore, contended that the investigation against the present petitioners is being carried on contrary to law and consequently, the petitioners are entitled to get their fundamental rights under Article 21 enforced by issuance of a proper writ of this Court at this stage against the investigating agency.

6. In order to appreciate the aforesaid contentions of Mr. Barot for the petitioners, it is necessary to have a look at the relevant statutory provisions. As per Section 156(1) of the Code, police officer's powers to investigate cognizable cases have been enumerated. As the said section is relevant for the purpose of decision of this petition, it is necessary to reproduce it in extenso:

156 (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.

(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.

(3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.

Sub-section (1) of Section 156 authorises an officer-in-charge of a police station to investigate any cognizable case without an order of the Magistrate provided the offence is committed in the local area within the limits of the said police station. For that purpose, local jurisdiction of the court over the concerned local area where the police station is situated has to be ascertained in the light of the provisions of Chapter XIII of the Code. Before going to Chapter XIII of the Code, it is necessary to note at this stage that as per Section 156(1), two statutory requirements are provided by the legislature before the concerned officer can investigate into a cognizable case; (i) he must be the officer-in-charge of the concerned police station and (ii) he must have territorial jurisdiction to investigate into the concerned cognizable case meaning thereby that the officer-in-charge of the police station must have competence to investigate into the offence and which competence can be culled out from the nature of the jurisdiction of the court over the concerned local area as can be gathered from the relevant provisions of Chapter XIII. In other words, local jurisdiction of the concerned, court over the area in which the alleged offence is committed would run parallel to the corresponding local jurisdiction of the concerned police station situated in that area to investigate into the said offence. Thus, both the jurisdictions of the concerned police station officer to investigate into the offence and the concerned court to take cognizance of the offence are conterminous and they operate in the same field. As the jurisdiction of the officer-in-charge of the police station to investigate into the given offence is of the same nature as the corresponding jurisdiction of the concerned court to take cognizance of the concerned offence, it is necessary to turn to Chapter XIII of the Code to find out as to whether the offences alleged against the concerned accused in the present case can be tried by the learned judicial Magistrate at Baroda, because it is obvious that if the learned Magistrate at Baroda has jurisdiction to try the concerned offence against the accused, ipso facto, the police station officer at Karelibag police station, Baroda would get similar jurisdiction to investigate into these offences and not otherwise.

Chapter XIII of the Code is having caption 'Jurisdiction of the criminal courts in inquiries and trials'. Section 177 provides for ordinary place of inquiry and trial and states that every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. Taking a clue from the said section, Mr. Barot contends that if the court of Judicial Magistrate, first class, Baroda can have jurisdiction to inquire into or try the alleged offences against the present petitioners then only the officer-in-charge of the Karelibag police station at Baroda would get jurisdiction to investigate into the said offences against the petitioners on conjoint reading of Sections 156(1) and 177. Mr. Barot submits that as the alleged offences under Sections 326, 506 read with Section 114 as alleged by the aforesaid accused present petitioners are said to have been committed at Kalol within the local limits of jurisdiction of Judicial Magistrate, first class, Kalol, the criminal court at Baroda would obviously have no territorial jurisdiction to inquire into or try such offences and, therefore, officer-in-charge at Karelibag police station, Baroda would also not get any such jurisdiction. If the matter had rested only at that stage, the contention of Mr. Barot would have carried, lot of substance. But in Chapter XIII is also found Section 184 which is very material for our present purpose. It reads as under : - 'Where

(a) the offences committed by any person are such that he may be charged with, and tried at one trial for, each such offence by virtue of the provisions of Section 219, Section 220, or Section 221, or

(b) the offence or offences committed by several persons are such that they may be charged with and tried together by virtue of the provisions of Section 223,

the offences may be inquired into or tried by any court competent to inquire into or try any of the offences.

The aforesaid provision clearly indicates that i various offences have been committed either by the same person or by different persons at the same or different places, they all can be tried at one trial and court having local jurisdiction over any of the offences would become competent to inquire into and try all the aforesaid offences provided the conditions laid down in Clause (a) or (b) are satisfied in a given case. So far as the present case is concerned, Clause (a) of Section 184 is out of picture for the simple reason that the concerned accused cannot be tried together under Section 219, Section 220 or Section 221. Section 219 deals with three offences of same kind within one year which may be charged together. It is not the case of the complainant that the accused had committed three offences of the same kind within one year. Section 220 is also out of picture. Section 220(1) provides

(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.

It is obvious that it is not the case of the complainant in the present complaint that original accused No. 1 or accused No. 2 had committed series of acts connected together. But on the, contrary, his case is that various accused had committed different offences against him at two places that is at Baroda as well as at Kalol (Mehsana district). In the same way, Section 221 also cannot be of any assistance to the investigating agency. Section 221(1) provides

(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be, proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the, alternative with having committed, some one of the said offences.

It is obvious that Section 221 cannot be applied to the facts of the present case. It is, therefore, clear that Clause (a) of Section 184 can have no application to the facts of the present case. It may be stated that Clause (a) of Section 184 deals with a single accused who may have committed plurality of offences. In the present case, there are more than one accused. It is in these circumstances that Sub-clause (b) of Section 184 would assume importance. As per the said provision, if offence or offences committed by several persons are such that they may be charged with and tried together by virtue of the provisions of Section 223, all these offences can be inquired into and tried by any court competent to inquire into or try any of these offences, meaning thereby that if different persons have committed different offences under the circumstances envisaged, by Section 223, all these offences can be inquired, into or tried together by a court which may be competent to inquire into or try any of the offences. Competence to try any of the offences would by itself clothe the court with further competence to try all the rest of the offences even though they may have been committed beyond the local limits of that court. It is, therefore, necessary to have, a look at Section 223. The said section provides for charging different accused jointly and it states

The following persons may be charged and tried together.

The only relevant clause of Section 223 is Clause (d) and it reads as under:

(d) persons accused of different offences committed in the course of the same transaction.

It must, therefore, be found as to whether in the present case, the concerned five accused who are alleged to have committed different offences against the complainant have committed them in the course of the same transaction. If the answer is 'yes', Section 223(d) would clearly apply to the present case. Consequently, by virtue of Section 184(b), Baroda Court would get jurisdiction to inquire in or try all the offences against all the concerned five accused and in that eventuality, as per Section 156(1) of the Code, Karelibag police station at Baroda in its turn would also get jurisdiction to investigate into all these offences against the concerned accused. If the answer is in the negative, the result would be opposite. I have already reproduced in details the relevant averments in the complaint, A conjoint reading of the said averments leaves no room for doubt that different sets of accused are alleged to have committed distinct offences at different places. Accused Nos. 1 and 2 are alleged to have committed the offence of kidnapping the complainant at Baroda obviously within the local limits of the jurisdiction of the Criminal Court at Baroda. Mr. Barot for the petitioners submitted, before me that the offence of kidnapping is complete moment the alleged minor is taken out of the custody of his legal guardian. There cannot be any dispute about the aforesaid legal position. So far as the offence of emasculation is concerned, the complaint discloses that accused No. 2 conveyed the complainant to Kalol after allegedly threatening him and saw to it that he was emasculated at Kalol with the assistance of accused Nos, 3, 4 and 5. Mr. Barot is, therefore, right when he contends that as per the complaint, offence of emasculation was allegedly committed by accused Nos. 2 to 5 at Kalol within the local limits of the jurisdiction of the learned Judicial Magistrate, First Class, Kalol, District Mehsana. Thus, two distinct offences under Section 364 on one hand and Section 326, I.P.C. on the other are alleged to have been committed by different sets of accused at two different places in two different districts. But the matter does not rest there. A close look at the complaint show that the entire modus operandi of the concerned accused was to see that the complainant who was alleged to be a minor boy was won over to their fold and was made a eunuch. That seems to be the 'be all' and 'end all' or the prime motive of the concerned accused, at least accused Nos. 1, 2 and 3. They do not appear to be merely interested in kidnapping the minor boy and to make him a begger on his own which he was even prior to the incident, but their real object appears to be, as alleged in the complaint, (truth or falsity of allegations whereof is still to be ascertained at the time of trial and for which I obviously cannot and do not express any opinion one way or the other to make the complainant a eunuch and to have one more addition to their fold with the ultimate object of having an additional professional begger of their own type. The complainant has clearly stated that he was made to stay at the house of accused No. 1 who was eunuch, for about three days and thereafter he was taken to the residential locality of eunuchs at Baranpura, Baroda city where he was made to put on lady's dress and he was forced to put on this dress as he was surrounded by many eunuchs. It, therefore, appears clear that the real object of allegedly kidnapping the complainant was to make him a eunuch and it is with that object in view that initial offence of kidnapping was allegedly committed by accused Nos. 1 and 2. The complaint further recites that accused No. 2 and other accused who threatened the complainant forcibly took him to Kalol where with the assistance of accused Nos. 3 to 5, final object of emasculation was carried into effect and even thereafter, he was brought to the headquarters of eunuchs at Baranpura locality, Baroda city. Thus, the entire cycle was complete the moment the complainant after his emasculation was brought back to Baroda, in Baranpura locality where he was even earlier made to stay in the company of eunuchs having been forced to put on lady's dress. It, therefore, prima facie appears that the act of kidnapping is so closely intertwined with the final act of emasculation that both these offences appear to be part and parcel of a common design and are components of the same transaction. Mr. Btrot at this stage submitted that so far as accused Nos. 3, 4 and 5 are concerned,, they are not even alleged to have shared the original design of accused Nos. 1 and 2 at Baroda where they kidnapped the complainant, the alleged minor, whom they confined at Baroda with the alleged ultimate object of getting him emasculated,

7. Mr. Barot further contended that so far as accused Nos. 3, 4 and 5, the present petitioners are concerned, only accused No. 3 petitioner No. 1 is a eunuch while so far as petitioners Nos. 2 and 3, original accused Nos. 4 and 5 are concerned one of them is a female viz. accused No. 4 and accused No. 5 is a male. In my view at this stage, where the court is only concerned with the question whether investigating agency at Baroda has jurisdiction to investigate into the concerned offences alleged in the complaint, the question whether any offence can be brought home to the concerned accused on evidence does not at all arise for consideration. As it is a well settled position of law, for deciding the question about territorial jurisdiction or authority or power of the investigating agency or of the criminal court, the averments in the complaint are required to be presumed to be true and on demurrer such question of jurisdiction and power has to be resolved. The complaint alleges that accused Nos. 1 and 2 who acted at Baroda and accused No. 3 who acted at Kalol in Mehsana district are eunuchs. Mr. Barot for the petitioner has no quarrel with this factual position. But what he contends is that so far as accused Nos. 3, 4 and 5 are concerned, they are not eunuchs and whatever act is alleged to have been committed by them was entirely at Kalol beyond the local jurisdiction of the Baroda police or for that purpose, the criminal court at Baroda. As I have already indicated above, the conjoint reading of all the relevant averments in the complaint leaves no room for doubt that accused Nos. 1 and 2 at Baroda are alleged to have kidnapped the complainant with a view to ultimately getting him emasculated and to bring him into their fold of professional beggers. They seem to have indulged in the offence of kidnapping and accused No. 2 in his turn, with the assistance of accused Nos. 3, 4 and 5 is alleged to have fulfilled the ultimate object of getting the complainant emasculated at Kalol after requisitioning the expert services of accused No. 4 who according to Mr. Barot appears to be acting like an experienced mid-wife in such adventures. Accused No. 5 is alleged to have contributed his mite in making the adventure a complete success. Thus, the role played by accused Nos. 4 and 5 represents the role of persons who have allegedly acted, as limbs of other accused who were admittedly eunuchs. It must, therefore be held prima facie at this stage that the offence of emasculation alleged to have been committed at Kalol in Mehsana district was part and parcel of the comprehensive transaction of kidnapping and castrating the concerned victim with a view to making him a eunuch who could be a useful addition to their class of professional beggers.

8. At this stage, it is necessary to have a look at a few decisions to which my attention was invited by Mr. Barot for the petitioners. He invited my attention to the Supreme Court judgment in State of A. P. v. Chemalapati Ganeswara Rao : [1964]3SCR297 , In the aforesaid case, the Supreme Court was concerned with the interpretation of the provisions of Section 239 of the Code of Criminal Procedure, 1898. The said section is practically pari materia with Section 223 of the present Code. Section 239(d) of the old Code is couched in the same language in which Section 223(d) of the present Code is couched. Certain offences of criminal conspiracy in connection with misappropriation and, falsification of accounts were alleged to have been committed by the concerned accused. The question before the Supreme Court was whether there was any misjoinder of parties. In the sense the Supreme Court had, therefore, to decide whether for the applications of Section 239(d) it was necessary to ascertain anything more than this that the different offences were committed in the course of the same transaction or whether it must further be ascertained whether the acts are intrinsically connected with one another. Under these circumstances, the question about the true connotation of the words 'same transaction' squarely arose for decision of the Supreme Court. Mudholkar, J. speaking for the Supreme Court made the following pertinent observations:

What is meant by 'same transaction' is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and, it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design of continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that these acts form part of the same transaction. The connection between a series of acts seems to us to be an essential ingredient for these acts to constitute the same transaction and, therefore, the mere absence of She words 'so connected together as to form' in Clauses (a), (c) (sic) and (d) of Section 239 would make little difference. Now, a transaction may consist of an isolated act or may consist of a series of acts. The series of acts which constitute a transaction must of necessity be connected with one another and if some of them stand out independently they would not form part of the same transaction but would constitute a different transaction or transactions. Therefore, even if the expression 'same transaction' alone had been used in Section 235(1) it would have meant a transaction consisting either of a single act or of a series of connected acts. The expression 'same transaction' occurring in Clauses (a), (c) (sic) and (d) of Section 239 as well as that occurring in Section 235(1) ought to be given the same meaning according to the normal rule of construction of statutes

(emphasis supplied)

The Supreme court held that various clauses of Section 239(1) are cumulative in nature and they are not mutually exclusive. In the light of the aforesaid settled legal position, it will have to be seen whether various acts alleged against different sets of accused in the present case show unity of purpose and design. If they show unity of purpose or design, several acts would form part of the same transaction. As I have already stated above, for that purpose, the averments in the complaint have to be taken at their face value. In my view, various averments in the complaint clearly indicate a common thread which runs through the entire transaction viz. minor boy was sought to be kidnappned with ultimate object of emasculation and to bring him within the fold of begging eunuchs. This common threat runs throughout the length and breadth of various allegations in the complaint. It must, therefore, be held that though accosted Nos. 3, 4 and 5 may have come on the scene later on at a different place altogether, accused No. 2 who seemed to have master-minded the entire operation-castration against the complainant is alleged to have acted all throughout from beginning to an end and hence, it can prima facie be held, that there was unity of purpose or design or continuity of action in respect of various acts committed by the accused at different places. Consequently, even applying the ratio of the Supreme Court in the aforesaid decision, in my view, present accused-petitioners can squarely be covered, by the provisions of Section 223(d) which is analogous to the provisions of Section 239(d) of the old Code with which the Supreme Court was concerned.

9. Mr. Barot then invited my attention to two decisions of the Punjab and Haryana High Court and Travancore-Cochin High Court viz. . So far as the aforesaid decisions are concerned, they go on the same lines as the Supreme Court and, therefore, it is not necessary to burden this judgment by repeating what other High Courts have stated on the aspect of the 'same transaction'. Before parting with the first contention of Mr. Barot, I must note one submission of Mr. Barot. He submitted that looking to the averments in the complaint, no offence of kidnapping is disclosed even against accused Nos. 1 and 2 much less against accused, Nos. 3, 4 and 5. As I have stated earlier, so far as accused Nos. 3, 4 and 5 are concerned, it is not the complainant's case that they had kidnapped him. But the reading of the complaint shows that accused Nos. 1 and 2 had kidnapped the complainant at Baroda and kept him in their company against his wish and it is accused No. 2 who brought the complainant to Kalol where with the assistance of accused Nos. 3, 4 and 5, he was got emasculated. Under those circumstances, once a view is taken that the entire transaction was one viz. kidnapping, wrongful confinement and emasculation and in fact emasculation was the main object of the modus operandi adopted by the concerned accused, applicability of Section 223(d) is clearly made out on the averments made in the complaint and in light of the aforesaid Supreme Court decision. I must make it clear that on the question whether the complaint discloses any offence of kidnapping and abetment against accused Nos. 1 and 2, I am not required to make any observation whatever at this stage as they are not before me. The only grievance made before me is on behalf of accused, Nos. 3, 4 and 5 against starting of investigation against them by the Baroda police on the ground that the complaint discloses no offence alleged, to have been committed by these accused within Baroda limits. As observed by me above, the relevant averments in the complaint which have got to be taken as true at this stage clearly indicate that various offences are alleged to have been committed by different concerned, accused as part and parcel of a comprehensive one and the same transaction. It must, therefore, be held that on a combined reading of Sections 156(1), 184(b) and Section 223(d), the criminal court at Baroda has ample jurisdiction to try the offences alleged against the concerned accused. Automatically, the police at Baroda would get parallel jurisdiction to investigate into these offences. The only contention raised by Mr. Barot in support of the petition is, therefore, repelled.

10. Once the aforesaid conclusion is reached, the present criminal proceedings must come to an end against the petitioners. But in order to complete this judgment, it is necessary to note an alternative legal position which squarely emerges on the record of the case at this stage. Even assuming that the offences alleged to have been committed by accused Nos. 3, 4 and, 5 at Kalol in Mehsana district are independent offences which do not form part and parcel of the same transaction and even assuming that Mr. Barot is right in his contention, even then, there is an insurmountable difficulty in his way in getting any relief from this Court in the present proceedings, His contention is that accused Nos. 3, 4 and 5 are alleged to have committed offence of emasculation against the complainant beyond the local limits of the jurisdiction of the criminal court at Baroda, as the said offence had allegedly taken place at Kalol in Mehsana district and, therefore, under Section 150(1), Baroda police would have no power to investigate into the said offence committed at Kalol. Even if Mr. Barot is right, so far the legislature has provided a safety valve, by enacting Section 156(2) which has already been extracted by me earlier. To recapitulate at this stage, the said provision in terms stales that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate, meaning thereby that any irregularity in the process of investigation regarding an offence which the concerned police officer was not empowered under Section 156(1) to investigate into, cannot be called in question during the continuation of such investigation. It is necessary to recall at this stage that Section 156(1) of the Code empowers a police officer in charge of a police station to investigate any cognizable case which the court having jurisdiction over the local area can inquire into and/or try. Mr. Barot's contention is that Sub-section (2) of Section 156 carves out a limited exception to Section 156(1) viz. that if in a given case it is found that a police officer other than the officer-in-charge of the police station is investigating a cognizable case which otherwise falls within the territorial limits of that station, then in such an eventuality such an irregularity in conducting of investigation by an unauthorised police officer is sought to be insulated against by Section 156(2). But if the police officer in charge of the police station has no territorial jurisdiction to investigate into any cognizable case, that absence of power is not shielded by Section 156(2). It is not possible to agree with the aforesaid contention of Mr. Barot. It is true that under Section 156(1), the officer-in-charge of the police station is the designated police officer who has to investigate into the cognizable offence which falls within the territorial jurisdiction of the. local area of the concerned court wherein the police station is situated. Thus, under Section 156(1), the legislature has pinpointed the concerned officer in charge of the police station who has to investigate the cognizable case and the area of his operation is also ear-marked by laying down that he can investigate into the cognizable case which falls within the territorial jurisdiction of the concerned court in the local area in which the police station is situated. Sub-section (2) of Section 156 in terms lays down that no proceedings of police officer in any such case can be called in question on the ground that such officer was not empowered under this sub-section to investigate. Now, it is obvious that the term 'police, officer' is the genus while the officer-in-charge of the police station is its species as defined by Section 2(o) of the Code which states - ' 'Officer in charge of a police station' includes when the officer in charge of the police stations is absent from the station house or unable from illness or other cause to perform his duties, the police officer present at the station house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present'.

11. It is, therefore, obvious that the officer-in-charge of the police station is also a police officer, but he is designated police officer by express words of Section 156(1). But when we come to Sub-section (2), advisedly the legislature has used wider word 'police officer' meaning thereby that immunity is sought to be given to the investigation proceedings initiated by any police officer, which in Its turn would include even an officer in charge of the police station and this immunity against any attack on the investigation procedure is a comprehensive immunity which states that such investigation shall not be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. Consequently, if any police officer was not empowered to investigate the offence, even then, his investigation cannot be called m question at any stage of investigation. Empowerment of the officer to investigate may be qua his designation or qua the territorial jurisdiction within which he functions. Both these aspects are aspects of empowerment under Section 156(1). But the attempt of Mr. Barot was to show that Sub-section (2) of Section 156 may be so read as to provide only for immunity against procedural irregularity regarding investigation by the designated police officer and that this immunity may not be extended to cover cases of absence of territorial jurisdiction. On the express language of Section 156(2), it is not possible to agree with the aforesaid contention of Mr. Barot. It must be held that any sort of irregularity or illegality in the conducting of investigation by any police officer with respect to any type of empowerment under Section 156(1) including territorial jurisdiction, is all taken care of by the provisions of Section 156(2). The net result, therefore, is that even assuming that a police officer in charge of a police station seeks to investigate into an offence which is beyond his territorial jurisdiction or alternatively, an officer other than the officer in charge of the police station seeks to investigate into the offence which otherwise falls within the territorial jurisdiction of the said police station, in either case, Section 156(2) immunises this investigation against any possible attack on the ground of absence of power with the concerned investigating officer. Mr. Barot's submission that immunity can be confined to the latter type of cases and not to the former does not stand scrutiny in the face of the express statutory language of Section 156(2). In this connection, it would be profitable to have a look at a few relevant decisions on the point. In H. N. Rishbud v. State of Delhi : 1955CriLJ526 , the Supreme Court was concerned with the, question whether cognizance taken by a Magistrate on a police report which was vitiated by breach of a mandatory provision relating to investigation, can be found fault with at any later stage. The illegality in the investigation alleged in the case before the Supreme Court was that the investigating officer who had conducted the investigation was not empowered to investigate into the alleged offence as per the requirement of Section 5 (4) and proviso to Section 3 of the Prevention of Corruption Act as it stood prior to its amendment by Act 59 of 1952 and the corresponding Section 5-A as inserted by Amending Act 59 of 1952. The Supreme Court held that the said provisions were mandatory and the investigation conducted in violation thereof would bear the stamp of illegality. It is in this connection that the Supreme Court had to consider the corresponding provisions of the Code of Criminal Procedure - Section 156 onwards and the further question whether once cognizance is taken by a criminal court under Clause (a) or (b) of Section 190(1) of the Code, the alleged illegality of the police report can be made a ground to vitiate the cognizance. In this connection, it is necessary to notice a few relevant observations made by Jagannadhadas, J. in the aforesaid decision on the interpretation of Sections 155 and 156 of the Code. In connection with the provisions of Section 156(2) of the, Code, 1898 which are pari materia with the provisions of Section 156(2) of the new Code, the following pertinent observations are made:

What Sub-section (2) of Section 156, Criminal Procedure Code cures is investigation by an officer not empowered under that section i. e. with reference to Sub-sections (1) and (3) thereof. Sub-section (1) of Section 156 is a provision empowering an officer in charge of a police station to investigate a cognizable case without the order of a Magistrate and delimiting his power to the investigation of such cases within a certain local jurisdiction. It is the violation of this provision that is cured under Sub-section (2). Obviously, Sub-section (2) of Section 156 cannot cure the violation of any other specific statutory provision prohibiting investigation by an officer of a lower rank than a Deputy Superintendent of Police unless specifically authorised.

(Emphasis supplied)

12. Mr. Barot is right when he contends that the Supreme Court was concerned with a case in which power of the concerned designated police officer to take cognizance was on the anvil. Still however, the Supreme Court interpreted the provisions of Section 156(2) to mean that they gave complete immunity to investigation of cognizable cases by a police officer with respect to his power to investigate such case within any local jurisdiction and any violation of the prosions of Section 156(1) was held to be cured by Sub-section (2) of Section 156. It must, therefore, be held as a settled legal position that any alleged infection of Sub-section (1) of Section 156 by any police officer is taken care of by the insulating provisions of Section 156(2). In the aforesaid Supreme Court decision, it has been further held, that:

A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190, Criminal P. C. as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the court to take cognizance. Section 190, Cr. P.C. is one out of a group of sections under the heading 'Conditions requisite for initiation of proceedings'. The language of this section is in marked, contrast with that of the other sections of the group under the same heading i.e. Sections 193 and 195 to 199. These latter sections regulate the competence of the court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While, no doubt, in one sense, Clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under Clause (a) or (b) of Section 190(1) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537, Criminal P. C. is attracted.

The Supreme Court placing reliance on two Privy Council decisions in Prabhu v. Emperor and Lumbhardar Zutshi v. The King AIR 1950 PC 26 : 1950-51 Cri LJ 644, has further observed:

If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality m the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial is well settled.

13. Mr. Barot fairly stated that it is true that if he does not challenge the investigation at this stage, and if police report ultimately results and if the Baroda court takes cognizance on the basis of the police report which in his view would be an invalid police report, cognizance taken by the Baroda court cannot be challenged save and except on the ground of prejudice, as laid down by Section 462 of the present Code. He, therefore, submitted that he has awaken in time and has, therefore, rushed to this Court at this time as for him it is now or never. It is true that the legal situation which may emerge after taking cognizance strictly does not arise at this stage, but the legislative intention also has to be kept in view while considering the' grievance of Mr. Barot at this stage where police report has not resulted and investigation is in progress. The combined reading of Section 156(2) and Section 462 of the Code, leaves no room for doubt that errors in conducting of investigation or in conducting of inquiries or trials which have nexus with territorial jurisdiction are not treated by the legislature to be fatal errors but mere irregularities which can be cured and can have clinching effect only when failure of justice and material prejudice are demonstrated by the concerned accused. If the legislature in its wisdom has insulated inquiries and trials before the criminal courts against the attacks on the ground of absence of territorial jurisdiction, save and except in a given contingency where failure of justice and material prejudice are demonstrated, it would be too much to hold that at prior stage of investigation, a police officer who is investigating into the offence which does not fall within his territorial jurisdiction, would be required to be totally prohibited from proceeding with investigation on the ground that some of the offences into which he is investigating fall outside the ambit of his local jurisdiction. Even otherwise Section 156(2) which is a corresponding provision to Section 462 which takes care of inquiries and trials can certainly be held to be a reflection of legislative intention that even pending investigation in such cases would not be thwarted on the ground of absence of power of the concerned officer. It is not necessary for me to dilate further on the question as there are series of judgments of the Supreme Court as well as the court, taking the view that once cognizance is taken by a criminal court, may be on illegal or invalid police report, cognizance is not affected on merits and the only right open to the accused is to demonstrate failure of justice and material prejudice to challenge the result of the trial, I may only note a few of these decisions which were noticed by me during the course of arguments in the present cases

1. : AIR1962SC605 .

2. : 1957CriLJ892 .

3. : 1959CriLJ1120 .

4. : AIR1962Bom202 .

5. .

14. The last decision is required to be noted in a bit detail as the question that arose before the learned single Judge of the Rajasthan High Court directly touched the question of territorial jurisdiction of the investigating police officer. In the aforesaid Rajasthan decision, the facts were that an offence of gambling was committed within the jurisdiction of Railway Police. The investigation was, however, made by the District Police and, the charge sheet was submitted not to the railway Magistrate but to the judicial Magistrate. The Magistrate not only registered the case and called upon the party to bring evidence but he took further proceedings in that he supplied copies of the investigation papers to the accused and adjourned the case for hearing arguments with regard to the framing of charges and also bound them down for appearing in his court. An argument was raised before the Rajasthan High Court to the effect that the report submitted by the railway police was illegal report as it suffered from absence of territorial jurisdiction and consequently the proceedings before the learned Magistrate were bad in law. The learned single Judge relying upon the Supreme Court decision in H. N. Rishbud's case 1955 Cri LJ 526 (supra), turned down the said, contention. While doing so, C. B. Bhargava, J. noticed provisions of Section 156(1) and Section 156(2) of the Code. Placing reliance on Section 156(2) of the Code, Bhargava, J. stated : -

In view if the provisions of Section 156(2) Cr. P.C., it was not open to the accused to question the investigation proceedings on the ground that the District police officer was not empowered to make investigation into an offence which was committed outside the local area of his police station. The learned Magistrate was not right in entertaining this objection and discharging the accused on this ground. The purpose of investigation is to ascertain facts and to collect evidence. No question of prejudice to the accused arises when investigation has been made by an officer in charge of the police station even in contravention of provisions of Sub-section (1) of Section 156 Cr. P.C. It is for this reason that under Sub-section (2) such proceedings cannot be called in question.

15. It is, therefore, obvious that provisions of Section 156(2) of the Code were so interpreted as to furnish a cloak of immunity to investigation by a police officer for offences beyond his territorial jurisdiction. I concur with the aforesaid, reasoning adopted by Bhargava, J. of Rajasthan High Court. As I have already stated above, there is no reason to cut down (he wide scope and ambit of Section 156(2) and to narrow it down to procedural irregularities pertaining to concerned, designated police officer who may not be officer in charge of the police station as tried to be submitted by Mr. Barot.

15A. Mr. Barot then invited my attention to Section 461(L) of the Code which states

If any Magistrate not being empowered by law in this behalf, does any of the following things, namely

X X X X

(1) tries an offender;

X X X X

his proceedings shall be void.

One of the irregularities catalogued in Section 461 pertains to trying an offender by a Magistrate not empowered by law in this behalf. Mr. Barot submitted that as per the aforesaid provisions, if the learned Magistrate has no jurisdiction to try an offender, his trial would be void. With respect, this would amount to arguing in a circle. If the Magistrate is not permitted by law to try any accused, it would obviously be an irregularity which would vitiate the proceedings. But so far as Section 462 is concerned, it has in terms pointed out that any infringement of procedure about trial of offences falling within a given territorial jurisdiction has not been treated by the legislature on the same footing as an irregularity vitiating the trial by itself as envisaged, by Section 461 (L). Therefore, Section 461 (L) will be confined to those cases in which the Magistrate may be inherently lacking power in himself to try an offender and which lack of power must be such lack of power which has no nexus with absence of territorial jurisdiction. Even otherwise, the alleged illegal investigation in a case which results into an illegal police report is finally held by the Supreme Court as not resulting in any illegality in taking cognizance by the concerned Magistrate of the offence disclosed thereby. Consequently, Section 461 (L) can obviously have no play so far as such cases are concerned. The present case is alleged to be involving an irregularity in investigation procedure which has a nexus with territorial jurisdiction of the police authority and which is likely to have effect on the ultimate police report which might result at the end of investigation. To such a case provisions of Section 461 (L) can never apply. It must also be observed that notwithstanding the provisions of Section 461 (L) or its equivalent provisions in the old Code, being Section 530 (p), the Supreme Court in a series of judgments has taken the view that cognizance taken on an illegal police report does not by itself vitiate the trial. It is not open to Mr. Barot to contend before me that the ratio of various Supreme Court judgments would have no binding effect in view of the non-consideration of Section 461 (L) or its corresponding provisions by the Supreme Court. Even otherwise, as I have shown above, provisions of Section 461 (L) have no relevance to the present question in controversy between the parties.

16. Before parting with the discussion in the present case, I must note one more argument raised by Mr. Barot. He invited my attention to two Supreme Court judgments reported in : 1982CriLJ819 as well as 1982 Criminal Law Journal 867, para 12 (Sic), in support of his contention that the accused have a fundamental right under Article 21 of the Constitution of India to be proceeded against in accordance with law before any agency, may be investigating agency or court and that if such right is violated or infringed, action of the concerned officer would be a nullity. There cannot be any dispute so far as this proposition of law is concerned. Article 21 of the Constitution enjoins that no person shall be deprived of his life or personal liberty except according to procedure established by law. It may be stated that at this stage when a police officer investigates into alleged offences against he accused, no question of deprivation of life arises. But the question of deprivation of personal liberty can squarely arise if such police officer arrests any accused without warrant in a cognizable case. But even then, the Article itself provides that such type of attack on personal liberty may become permissible if the procedure established by law is followed by the concerned authority. It cannot be disputed, and in fact it was not disputed by Mr. Barot that the Code of Criminal Procedure does establish a procedure according to law. But his grievance was that the said Code did not empower the investigating authority at Baroda t0 investigate into the offences in question against accused Nos. 3, 4, and 5 who are the petitioners before me. Consequently, mere reliance on Article 21 can be of no assistance to Mr. Barot. He, therefore, rightly concentrated, his attack on the applicability of various provisions of the Code including Section 156(2). As discussed, there appears no room for doubt that both on merits as well as on the ground of immunity under Section 156(2), the impugned investigation at Baroda cannot be faulted in the present proceedings at this stage and consequently the alleged violation of Article 21 pales into total insignificance.

17. Before parting, I may usefully refer to the latest judgment of the Supreme Court laying down limited, scope and ambit of the jurisdiction of the High Court under Article 226 while it seeks to interfere with pending investigation proceedings. In State of Bihar v J.A.C. Saldanna : 1980CriLJ98 , D. A. Desai, J. in this connection observed as under:

Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. The power of the police to investigate into a cognizable offence is ordinarily not to be interfered, with by the judiciary. The High Court in exercise of the extraordinary jurisdiction commits a grave error by making observations on seriously disputed questions of facts taking its clue from affidavits which in such a situation would hardly provide any reliable material. The High Court is clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete.

It is, therefore, obvious that only in exceptional cases, the High Court in its extraordinary jurisdiction under Article 226 of the Constitution can interpose at the stage of investigation. As discussed above, the present is not one of those cases. On the contrary, it is a case in which no need for interference with pending investigation is made out both on merits as well as on the ground of statutory immunity granted to this investigation by Section 156(2) of the Code.

18. In the result, the present proceedings fail as indicated above. Rule issued therein shall stand discharged, Mr. Barot at this stage made an oral application before me to certify this case to be fit one for appeal to the Supreme Court. The oral application is made almost immediately on the completion of the dictation of this oral judgment. But as per rules of this Court, question of grant of certificate on such request will have to be resolved by a Division Bench. I accordingly direct that consideration of the oral request of Mr. Barot may be entrusted to a Division Bench at the earliest. The papers, therefore, may be placed before the learned Chief Justice for passing suitable orders in this behalf. Mr. Barot made it clear that while he makes this oral request, he reserves his right to prefer a Letters Patent Appeal if permissible according to law. Mr. Barot also requested me to grant some time to him to enable him to approach the proper court for obtaining suitable interim relief. The request is reasonable. I, therefore, direct that the police may not submit any charge-sheet against the present petitioners for a period of four weeks from today during which time the petitioners may do the needful.


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