Karnataka High Court
State Of Karnataka vs M. Balakrishna on 18 April, 1980
Equivalent citations: 1980CRILJ1145, ILR1980KAR1070, 1980(1)KARLJ387
JUDGMENT Nagappa, J.
1. The Sessions Judge, Chickmagalur, made a reference under Section 186 of the Code of Criminal procedure, 1973, in Sessions Case No. 16 of 1978, on the file of his Court, to this Court. In the said reference he has expressed a doubt whether the Court of Session at Chickmagalur has jurisdiction to try the offence punishable under Section 376 of the Indian Penal Code, which is said to have been committed by the accused not within the territorial jurisdiction of the said Court, but committed it within the territorial jurisdiction of the court of Session at Shimoga. To resolve the said doubt, he made the above reference to this Court, which came up for consideration before the learned Single Judge on 5-2-1979, who after adverting to the decision of a Bench of this Court in State v. Tavara Naika (AIR 1959 Mys. 193 : (1959 Cri LJ 1004)) arrived at the conclusion that the said decision requires reconsideration in view of the fact that the ingredients of Section 366 of the Indian Penal Code have to be taken into consideration before deciding which Court would have jurisdiction to try an offence under section 376 of the Indian Penal Code where the offence of Kidnapping punishable under section 363 of the I.P.C. takes place within the jurisdiction of one Sessions Division and the offence of rape seduction etc. to achieve which object the offence of kidnapping punishable under section 363 of the I.P.C. takes place within the jurisdiction of another Sessions Division. It is in this view of the matter regarding the position in law, the learned single Judge thought it fit and proper to refer the matter to a Division Bench and that is how the said reference is before us.
2. Few facts for proper appreciation and decision of the points involved in the case are these. The Judicial Magistrate First Class; Chickmagalur, committed the accused in C.C. No. 954 of 1978 under Section 209(a) of the Code of Criminal Procedure to take his trial before the Court of Session at Chickmagalur for offences punishable under Sections 363 and 376 of the I.P.C. as the offence under section 376 of the I.P.C. is triable exclusively by the Court of Session.
3. The case of the prosecution is that one Jamila (C.W. 2), aged about 13 years - a minor girl - was under the care and protection of her mother Salumamma (C.W. 1) and was residing at New Colony, Mudigere hand-post. On 2-1-1978 at about 10 p.m. the accused kidnapped Jamila from out of the lawful guardianship of her mother with intent to compel her to marry him. After the said Jamila was kidnapped by the accused from the lawful guardianship of her mother, it is the case of the prosecution, that the accused had forcible sexual intercourse with said Jamila on the night of 3-1-1978 in Room No. 21 of Sudha Lodge in Shimoga Town. Thus, according to the prosecution the offence of kidnapping which is punishable under section 366 of the I.P.C. has been committed at Mudigere within the jurisdiction of the Court of Session at Chickmagalur and the offence of rape punishable under Section 376 of the I.P.C. has been committed at a place within the territorial jurisdiction of the Court of Session at Shimoga.
4. The learned Sessions Judge heard arguments with regard to the legality of the committal order passed by the Judicial Magistrate First Class, Chickmagalur, in respect of the offence under section 376 of the I.P.C., as the said offence was not committed within the jurisdiction of his Court. The learned Public Prosecutor and also the learned Counsel appearing for the accused after adverting to the ratio laid down by this Court in the above referred case appears to have submitted, that a reference may be made under section 186 of the Cr.P.C. to this Court for a decision of the place where the trial for the offence under section 376 of the I.P.C., has to take place. The learned Sessions Judge accepted the arguments of both the learned counsel and thereafter, as stated above, has referred the matter for decision by this Court under Section 186 of the Cr.P.C.
5. In the above cited case (AIR 1959 Mys. 193 : (1959 Cri LJ 1004)) a similar situation had arisen. In the said case the accused was committed by the Munsiff Magistrate, Tiptur, to take his trial before the Court of Session Bangalore Division for offences under sections 366 and 376 of the I.P.C. According to the charges framed by the learned Magistrate the offence under section 366 of the I.P.C. had been committed at Gubehalli of Chikkanayakanahalli taluk. The said village was within the territorial jurisdiction of the Court of Session, Bangalore Division. But so far as the offence under section 376 of the I.P.C. was concerned, the charge disclosed that that offence had been committed at Tarikere and Peelapura. The said two places were not within the territorial jurisdiction of the Sessions Court, Bangalore Division, but were within the territorial jurisdiction of the Court of Session at Shimoga Division. The First Additional Sessions Judge, Bangalore, before whom the said Sessions case had come up for trial felt that he could not proceed with the trial in so far as an offence under section 376 of the I.P.C. was concerned as Tarikere and Peelapura, the places where the offence of rape was alleged to have been committed were not within his territorial jurisdiction. So he made a reference seeking decision of this Court under section 185 of the Cr.P.C. (old Code). This Court, after hearing the arguments, opined taking into consideration the places where the said two offences were said to have been committed by the accused, that ordinarily the trial in so far as it relates to the offence under section 376 of the I.P.C. ought not to take place before the Sessions Judge Bangalore Division, but should take place only before that Sessions Judge within whose jurisdiction Tarikere and Peelapura are situated. In the said decision, the learned Judges also referred to a decision in Assistant Sessions Judge. North Arcot v. Ramammal ((1913) ILR 36 Mad 387 : (1912-13 Cri LJ 35)) wherein it was held that where the committal by the Magistrate is to a Court of Session, which has no jurisdiction to try the case under section 177 of the Cr.P.C. (old Code) such commitment was illegal. But, however, a reference was also made to a later decision of the Madras High Court in Ganapathy Chetty v. Rex (AIR 1920 Mad 824 : (1919) 20 Cri LJ 484) wherein one of the learned Judges while referring to the earlier decision in (1913) ILR 36 Mad 387 : (1912-13 Cri LJ 35) had observed that after the trial had taken place to its termination, Section 531 of the Cr.P.C. (Old Code) might cure the defect. While adverting to the same, it was further held as follows :-
"On a plain reading of Section 531 Cr.P.C. it would appear that the curative provisions of that Section would extend also to a trial which has taken place in a wrong Sessions Division; therefore, in a case where the trial has proceeded to its conclusion and the Court is satisfied that no failure of justice has been occasioned by the trial having taken place in a wrong Sessions Division, the error may amount merely to an irregularity curable under section 531 of the Cr.P.C."
Thereafter, the court also held that when a material irregularity pertaining to jurisdiction is brought to the notice of the Court before the commencement of the trial, provisions of Section 531 of the Cr.P.C. (old Code) should not be made use of and even if the defect or irregularity having been brought to the notice of the Court even before the commencement of the Sessions trial, it is proper that the irregularity should be avoided. So, acting under section 561-A of the Cr.P.C. this Court quashed the commitment in so far as it related to the offence under section 376 of the I.P.C. without prejudice to fresh proceedings being taken before the appropriate committing Magistrate with a view to obtain a proper order of commitment for a trial before the Sessions Court having territorial jurisdiction over the places in which the said offence is alleged to have been committed.
6. Chapter XIII of the Code of Criminal Procedure (new Code) deals with the jurisdiction of the Criminal Courts in inquiries and trials. Section 177 envisages that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. Section 178 Cr.P.C. deals with place of inquiry or trial when it is uncertain in which of several local areas an offence was committed. Section 179 Cr.P.C., postulates the offence triable where act is done or consequence ensues. It reads thus :-
"When an act is an offence by reason of anything which has been done and of a consequence which had ensued the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued."
Section 184 Cr.P.C. reads thus :-
"184. Place of trial for offences triable together - 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."
Section 177 (both old and new Codes) merely says that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. It does not lay down that it would be tried by such Court except in the cases mentioned in Sections 179 to 185 and 188 (old Code) or in cases specially provided by any other provision of law corresponding to Sections 179, 180, 181, 178, 183, 186 and 188 of the New Code, the place where the trial is to take place is left open. The said provisions are not made peremptory.
7. In Purshottamdas Dalmia v. State of West Bengal the Supreme Court while considering Sections 177, 235 and 239 Cr.P.C. (old Code) with regard to the criminal conspiracy and offences in pursuance of conspiracy committed in different local limits - joint trial - court having jurisdiction to try offence of conspiracy has also jurisdiction to try offences committed in pursuance of conspiracy outside its jurisdiction has laid down thus :-
"The desirability of the trial together, of an offence of criminal conspiracy and of all the overt acts committed in pursuance of it, is obvious. To establish the offence of criminal conspiracy, evidence of the overt acts must be given by the prosecution. Such evidence will be necessarily tested by cross-examination on behalf of the accused. The Court will have to come to a decision about the credibility of such evidence and on the basis of such evidence, would determine whether the offence of criminal conspiracy has been established or not. Having done all this, the court could also very conveniently record a finding of guilty or not guilty with respect to the accused said to have actually committed the various overt acts. If some of the overt acts were committed outside the jurisdiction of the Court trying the offence of criminal conspiracy and if the law be that such overt acts could not be tried by that Court, it would mean that either the prosecution is forced to give up its right of prosecuting those accused for the commission of those overt acts and the accused are put to unnecessary trouble inasmuch as the prosecution will have to produce the same evidence a second time and the accused will have to test the credibility of that evidence a second time. The time of another court will be again spent a second time in determining the same question. There would be the risk of the second Court coming to a different conclusion from that of the first court. It may also be possible to urge in the second court that it is not competent to come to a different conclusion."
Further, in the said decision the Supreme Court while adverting to the framing of the charges has observed thus :-
"It is further significant to notice the difference in the language of Section 177 and Section 233. Section 177 simply says that ordinarily every offence would be tried by a Court within the local limits of whose jurisdiction it was committed. It does not say that it would be tried by such Court except in the cases mentioned in Sections 179 to 185 and 188 or in cases specially provided by any other provision of law. It leaves the place of trial open. Its provisions are not peremptory. There is no reason why the provisions of Sections 233 to 239 may not also provide exceptions to Section 177, if they do permit the trial of a particular offence along with others in one Court. On the other hand, Section 233, dealing with the trial of offences, reads :
'For every distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in Sections 234, 235, 236 and 239.' The language is very peremptory. There is a clear direction that there should be a separate charge for every distinct offence and that any deviation from such a course would be only in cases mentioned in Sections 234, 235, 236 and 239.
It is true that it is not stated in express terms either in Section 235 or Section 239 that their provisions would justify the joint trial of offences or of persons mentioned therein in a Court irrespective of the fact whether the offences to be tried were committed within the jurisdiction of that particular Court or not. But such, in our opinion, should be the interpretation of the provisions in these two sections. The sections do not expressly state that all such offences which can be charged and tried together or for which various persons can be charged and tried together must take place within the jurisdiction of the Court trying them. The provisions are in general terms. Sub-sections (1) to (3) of Section 235 provide for the offences being charged with and tried at one trial and therefore provide for the trial of these offences at one trial in any Court which has jurisdiction over any of the offences committed in the course of the same transaction. The illustrations to Section 235 also make no reference to the places where the offences were committed. In particular, illustration (c) can apply even when the offences referred to therein were committed at places within the territorial jurisdiction of different Courts. Similarly, Section 239 provides for the various persons being charged and tried together for the same offence committed in the course of the same transaction or accused of different offences committed in the course of the same transaction. Such offences or persons would not be tried together if some of the offences are committed by some of them outside the jurisdiction of the Court which can try the other offences, if the contention for the appellant be accepted and that would amount to providing by construction an exception for these sections". It is, therefore, clear that Sections 235 and 239, Cr.P.C. (old Code) are enabling sections and the Legislature rightly did not use the expression which would have made it incumbent on the Court to try a person of the various offences at one trial or to try various persons for the different offences committed in the course of the same transaction together. Ultimately the Supreme Court in the said case, held in the above circumstances that the Calcutta High Court had jurisdiction to try the appellant therein of the offences under Section 471 read with Section 466 of the I.P.C., even though these offences in pursuance of the conspiracy were committed at Madras, as they were committed in the course of the same transaction.
8. Section 235 of the old Code corresponding to Section 220 of the new Code deals with trial for more than one offence. Sub-section (1) of Section 220 of the Cr.P.C. (new Code) reads thus :-
"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".
9. In Chhotey Mian v. State (1973 Cri LJ 908) (Allahabad High Court) after following the law laid down by the Supreme Court in Purshottam Dalmia's case (1961 (2) Cri LJ 728) has held that a Court having jurisdiction to try certain offence committed in the course of a transaction, can hold an enquiry of trial even in respect of an offence committed in the course of the same transaction but beyond its jurisdiction. In the said case one Chhotey Mian was alleged to have kidnapped a girl less than 18 years, from the lawful custody of her parents at Bareilly and thereafter took her to Haldwani where he committed rape on her. The offence of kidnapping was alleged to have taken place at Bareilly on 26-7-1967 while the offence of rape said to have taken place at Haldwani. The Magistrate of Bareilly held an inquiry and committed the accused to sessions to stand his trial of both the offences of kidnapping and rape even though the latter offence was committed at Haldwani. During the sessions trial the accused moved an application for quashing the commitment in respect of the offence of rape before the Assistant Sessions Judge. That application was dismissed. Thereafter, the accused filed an application before the Sessions Judge, who had made the reference to the High Court. It is in this context the High Court while adverting to the relevant observations made in that behalf by the Supreme Court in Purshottam Dalmia's case ultimately held that the Court can hold an inquiry or trial in respect of the offence committed outside the jurisdiction, if the offences were committed in the course of the same transaction as in the said case and accordingly rejected the reference and directed the Sessions Judge to proceed with the case.
10. Now, the point for consideration is whether the offences alleged against the accused in the present case namely, kidnapping and raping could be said to have been committed by him during the course of the same transaction. In C. N. Krishna Mutrthy v. Abdul Subhan, AIR 1965 Mys 126 : (1965 (1) Cri LJ 565), Hegde, J., (as he then was) while adverting to the tests to determine what amounts to the 'same transaction' appearing in Section 235, Cr.P.C. (old Code) corresponding to Section 220, Cr.P.C. (new Code) has observed thus :-
"The word 'transaction' is not intended to be interpreted in any artificial or technical sense; common sense and ordinary use of language must decide whether on the facts of a particular case, one is concerned with one transaction or several transactions. In order that a series of acts be regarded as the same transaction, they must be connected together in some way as for instance by proximity of time, unity of place, unity or community of purpose or design and continuity of action. Proximity of time and unity of place are not essential though they furnish good evidence of what unites several acts. The main test must really be continuity of action by which is meant the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts come to an end either by attainment of the object or by being put an end to or abandoned. If any of these things happens and the whole process is begun ever again it is not the same transaction but a new one in spite of the fact that the same general purpose may continue. The vinculum juris which interlinks a series of acts so intimately as to form the same transaction is different in each case. It may be proximity of time and place, or continuity of action, or community of purpose and design, or relation of cause and effect, or that of principal and subsidiary".
Therefore, it is clear, to constitute 'same transaction' the series of acts alleged against the accused must be connected together in some way as for instance by proximity of time, unity of place, unity or community of purpose or design and continuity of action and the main test must really be continuity of action by which is meant the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts come to an end. It is, therefore, necessary to find out whether the offences alleged against the accused could be stated to be one committed during the same transaction.
11. In Rampratap v. State, while dealing with the offences of kidnapping and rape and the place of inquiry, after applying the provisions of Section 235 Cr.P.C. (old Code) - Section 220, Cr.P.C. (New Code) the Rajasthan High Court has held that since the offences were interlinked, inquiry could be held at either of the places in view of Sections 180, 177 and 235, Cr.P.C. (old Code) and therefore the offences under section 366 and Section 376, in the circumstances of the case, it appears, are so related to one another that their inquiry can be justified both under the provisions of Section 180 Cr.P.C., as well as Section 177 read with the provisions of Section 235 Cr.P.C. (old Code). In the said decision, it is further held thus :-
"Section 177 speaks of the relationship of two acts each one of which is an offence and capable of being tried in isolation. Yet where they have a certain amount of relationship such as kidnapping and the concealment of the kidnapped person, they can be tried in the Court of the place where either the kidnapping took place or the concealment took place. Probably this relationship which has been expressed in the term 'transaction' in Sections 235 and 239, Cr.P.C. was responsible for persuading their Lordships of the Supreme Court in the abovementioned judgment to say that these may also in appropriate cases be treated as exceptions to the flexible language of Section 177. Examined from that angle also, the alleged kidnapping of the girl from 'B', their going together to T and staying in a hotel where the rape is alleged to have been committed, in my opinion, can, in the circumstances of the case, constitute a 'transaction'. Even from this point of view, both these offences could be enquired into before the Magistrate at Bhawanimandi".
12. What emerges from the aforesaid principles laid down by the Supreme Court which were followed by the various High Courts, are that the offences which consist of series of acts connected together so as to form the same transaction and more offences than one are committed by the same person, he may not only be charged and tried at one trial, but also be tried at any one of the places where such offence is committed by him. In other words, the main ingredients necessary for a trial of such a person at one of the places, are the series of acts which constitute an offence or offences must form the same transaction. The acts alleged against the accused must be connected in some way which spells out a continuity of action followed by its consequences and incidents until the series of acts or group of connected acts come to an end either by attainment of the object or by being put an end to or abandoned.
13. One more criterion under which place of trial of the offence of kidnapping could be determined is to have regard to the ingredients contained in Section 366 of the I.P.C. Section 366 of the I.P.C., is an aggravated form of the offence under section 363 of the I.P.C. The essential part of this offence is an intention to seduce subsequent to development which is more fully detailed in this section, such as kidnapping or abducting any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse. It is the intention mentioned in the former part of Section 366 of the I.P.C., which gives an indication whether the offence of kidnapping and rape form part of the same transaction. The said intention cannot be read in isolation and intention to kidnap for a particular purpose which ultimately constitute an offence under section 366 of the I.P.C. shall have to be taken into consideration in all such cases. That means, the initial place where the offence of kidnapping was committed or the place where the intention of kidnapping was achieved could both be the places where the offences could be tried, as the said offences are committed during the same transaction. The decision of this Court to the contrary reported in AIR 1959 Mys 193 : (1959 Cri LJ 1004) (State v. Tavara Naika) was rendered before the pronouncement of the Supreme Court in Purshottamdas Dalmia's case and that therefore the said decision is no longer a good law. If that is so, the committal order passed by the learned Magistrate for the offence under section 376 of the I.P.C., to the Court of Session at Chickmagalur need not be quashed and the committal order for an offence under Section 376 of the I.P.C., has to stand. On the other hand, the committal order in regard to both the offences under section 366 and 376 of the I.P.C., are legal and the Court of Session at Chickmagalur has got jurisdiction to try the said offences - under sections 366 and 376 of the I.P.C. - though the offence under section 376 of the I.P.C., is committed outside the jurisdiction of the said Court.
14. Accordingly, the referred petition stands disposed of and the Sessions Judge is directed to proceed with the case and dispose of the same according to law expeditiously in the light of the observations made above.
15. Ordered accordingly.