Gujarat High Court
State Of Gujarat vs Bhagchand Mohanlal Dhavan And Anr. on 19 October, 1994
Equivalent citations: (1995)1GLR201
Author: C.K. Thakker
Bench: C.K. Thakker
JUDGMENT C.K. Thakker, J.
1. This reference is made by the Sessions Judge, Kutch at Bhuj vide his letter dated Feb. 23, 1994 pursuant to an order passed by the Additional Sessions Judge below application Exh. 22 filed by the accused.
2. It appears that a complaint was filed against three accused for offences punishable under Sections 302, 364, 467, 468, 477, 420, 406, 201 read with Sections 120B and 34 of the Indian Penal Code ("IPC" for short). After the investigation, Sessions case No. 19 of 1993 was registered, charge was framed and thereafter, an application Exh. 22 was filed by the accused contending that the charge as framed against them was for different offences alleged to have been committed by them at different times and different places which was illegal and would cause serious prejudice to them. It was also stated that some of the offences have not been committed within the territorial jurisdiction of Session Court, Bhuj while some offences were triable by a Court of Judicial Magistrate, F.C., Gahdhidham and, therefore, Session Court, Bhuj should not try the case. Prosecution filed its reply Exh. 23 to application Exh. 22, contending that the charge had already been framed against the accused for offences punishable under Section 302 read with Section 34 IPC and Sessions Court, Bhuj has jurisdiction to try offences under Sections 364, 302, 201 read with Section 120B as also Section 34 IPC as they are exclusively triable by a Court of Session and also because the offences committed by the accused were continuous in nature.
3. It is the case of the prosecution that one Narandas Tarachand was kidnapped by the accused with intent to kill him in order to snatch away his property. Initially, the deceased was kidnapped from Adipur situated in Kutch District, admittedly, within the jurisdiction of Sessions Court, Bhuj, at Kutch. The deceased was taken to village Bhatvad, Taluka Vav of Banaskantha District where he was killed. Bhatvad is, admittedly, within territorial jurisdiction of Banaskantha District. The question, therefore, before the Court was as to whether the offences should be tried by Sessions Court, Kutch or by Sessions Court, Banaskantha. After hearing the parties, Additional Sessions Judge was of the opinion that the case should be tried by the Court of Session, Banaskantha. Since he had no jurisdiction to pass such order or to transter case to Sessions Court, Banaskantha, a reference under Section 395(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") is made to this Court.
4. Notices were issued to the parties. I have heard Mr. S.S. Panesar for the accused and Mr. N.D. Nanavaty, learned Public Prosecutor for the State.
5. Mr. Panesar submitted that the reference requires to be accepted and this Court may pass an order directing the Sessions Court, Banaskantha to try the case. A number of facts have been pointed out by the learned Counsel for the accused. Reliance was also placed on certain provisions of the Code and on various decisions of the Hon'ble Supreme Court as well as other High Courts. It was submitted that so far as kidnapping is concerned, the offence was complete as soon as the act of kidnapping was over. The deceased was then taken to Banaskantha District. The Counsel also submitted that even according to prosecution, the deceased was alive when he was taken to Banaskantha District. An attempt was made to kill him by throwing the deceased from the Railway but it was not successful. Thereafter, he was taken to a lonely place and was done to death. His dead body was found in Banaskantha District. A complaint was lodged. Panchnama was prepared and law was put in motion. In these circumstances, according to the learned Counsel, additional Sessions Judge is right in observing that the offence should be tried by Sessions Court, Banaskantha.
6. Mr. Nanavaty, learned P.P., on the other hand, submitted that Sessions Court, Kutch has jurisdiction to try the case and reference should not be accepted and the Sessions Court, Kutch may be directed to try the case and dispose of the same on merits in accordance with law.
7. For deciding the question raised herein, relevant provisions of the Code need be considered. Section 177 provides that every offence shall, ordinarily be inquired into and tried by a Court within whose local jurisdiction, it was committed. Section 178 provides for place of inquiry and trial and it reads as under:
178. (a) When it is uncertain in which of several local areas an offence was committed, or
(b) where an offence is committed partly in one local area and partly in another, or
(c) where an offence is continuing one, and continues to be committed in more local areas than one, or
(d) where it consists of several acts done in different local areas, It may be inquired into or tried by a Court having jurisdiction over any of such local areas.
Section 179 enacts that when an offence by reason of anything which has been done and a consequence which has 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. It is not in dispute that so far as offence of kidnapping is concerned, according to the prosecution, it took place in Kutch District and, therefore, Sessions Court, Kutch undoubtedly possesses territorial jurisdicton to try that offence. It is also not in dispute that the case is triable by a Court of Session. Thus, Sessions Court, Kutch has jurisdiction to try the case of kidnapping against the accused. There cannot be controversy to die above proposition of law. Mr. Panesar, learned Counsel for the accused, however, submitted that the offence of murder took place in Banaskantha District and since the deceased was alive and according to the prosecution, was killed in Banaskantha, the offence of kidnapping also should be inquired into by Sessions Court, Banaskantha. In this connection, reliance was placed on two decisions of the Hon'ble Supreme Court. In Parshottamdas Dalmiya v. State of West Bengal , the accused was charged for offences punishable under Section 120B read with Sections 471 and 466 of the Indian Penal Code. It was the case of the prosecution that appellant Parshottamdas was one of the partners of the firm of M/s. Laxminarayan Gaurishankar having head office at Gaya and Brach at Calcutta. Allegations were levelled against him that he had committed offences of preparation of forged documents as genuine at Madras and prosecution was launched at Calcutta. It was contended that Calcutta High Court had jurisdiction to try offence under Section 471 read with Section 461 of the Code. Dealing with the question, the Supreme Court observed as under:
The jurisdiction of the Calcutta High Court was to try an offence of criminal conspiracy under Section 120B IPC is not disputed. It is also not disputed that the overt acts committed in pursuance of the conspiracy were committed in the course of the same transaction which embraced the conspiracy and the acts done under it. It is, however, contended for the appellant, in view of Section 177 of the Code of Criminal Procedure that the Court having jurisdiction to try the offence of conspiracy cannot try an offence constituted by such overt acts which are committed beyond its jurisdiction and reliance is placed on the decision in Jiban Banerjee v. State. This case undoubtedly supports the appellant's contention. We have considered it carefully and are of the opinion that it has not been rightly decided.
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 "non-guilty" with respect to the accused said to have actually committed the various overt acts. If some of the overt acts were committed out side 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 or that both the prosecution and the accused are put to unnecessary trouble inasmuch as the prosecution will have to produce the same evidence for 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 in view of what has been said by this Court in Pritam Singh v. State of Punjab , p. 422;
The acquittal of Pritam Singh Lohara of that charge was tantamount to a finding that the prosecution has failed to establish the possession of the revolver Exh. P-56 by him. The possession of that revolver was a fact in issue which had to be established by the prosecution before he could be convicted of the offence with which he had been charged. That fact was found against the prosecution and having regard to the observations of Lord Mac Dermott quoted above, could not be proved against Pritam Singh Lohara in any further proceedings between the Crown and him."
[Emphasis supplied] The ratio laid down in case of Parshottamdas (supra) was reiterated by the Hontjle Supreme Court in case of I.N. Mukerjee v. State of Madras , observing that "the Court having jurisdiction to try the offences committed in pursuance of the conspiracy can try the offence of conspiracy even if it was committed outside its jurisdiction.
8. Relying upon the above observations of the Hon"ble Supreme Court in Mukerjee's case (supra), Mr. Panesar submitted that even if the case of the prosecution is of kidnapping of deceased from Adipur, Kutch and Section 120B is pressed in service, such allegation can be inquired by Court of Session, Banaskantha while deciding the offence of murder.
9. My attention was also invited by Mr. Panesar to two more decisions, one by the High Court of Punjab and Haryana, in Jagan Nath and Anr. v. State of Haryana 1983 Cri.LJ. 1574 and the other by the High Court of Allahabad in State v. Sri Lal and Ors. 1971 Cri.LJ. 141. In my opinion, neither of the case helps the accused. It was held in both the cases that as soon as the act is over, the offence can be said to be complete and thereafter, the provisions of Section 179 of the Code cannot be pressed in service.
10. Mr. Nanavaty placed reliance on the decision of the Supreme Court in State of U.P. v. K.P. Ghiara AIR 1967 SC 196 and submitted that venue of enquiry or trial of case is primarily to be determined by the averments contained in the complaint or charge-sheet and unless the facts there are positively disproved, ordinarily the Court, where the charge-sheet or complaint is filed, has to proceed with it, except where action has to be taken under Section 202 of the Code. He also drew my attention to Satvant v. State of Punjab it was held that if misrepresentation by A to X was made at Simla and consequences ensued at Lahore, the offence of cheating could be tried either at Lahore or at Simla. In Banwarilal Zunzunwala v. Union of India , the petitioners were partners of firm at Matunga at Bombay. Certain orders were booked at various places in Kerala and in other States. The question arose as to whether the offence under Section 420 IPC could be tried by a Court of Poona. Considering earlier decisions, the Hon'ble Supreme Court observed that, "a Court trying an accused for an offence of conspiracy is competent to try him for all the offences committed in pursuance to that conspiracy irrespective of the fact that any or all the other offences were not committed within its territorial jurisdiction."
11. In the instant case also, as per the prosecution version, the offence of kidnapping was committed in Adipur, Kutch. In pursuance of criminal conspiracy, all other acts have been committed by the accused. In my opinion, therefore, Sessions Court, Kutch has jurisdiction to try the case. On the contrary, as held by the Hon'ble Supreme Court, "it would be proper if the case is tried by Sessions Court, Kutch so as to avoid a plea of issue estoppel" which may be put forth as observed in Parshottamas's case (supra) in light of the observations made by the Hon'ble Supreme Court in Pritam Singh's case (supra). The case, therefore, should be tried by a Court of Session, Kutch. The reference is answered accordingly. Rule is discharged.
Since the accused are in jail, it is directed that the Court of Session, Kutch-Bhuj will dispose of the matter as expeditiously as possible.