Gujarat High Court
Bhavinbhai Babubhai Patel vs State Of Gujarat & 3 on 4 April, 2014
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.MA/2394/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 1434 of 2014
WITH
CRIMINAL MISC.APPLICATION (FOR VACATING INTERIM RELIEF) NO. 2394 of 2014
In CRIMINAL MISC.APPLICATION NO. 1434 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India, 1950 or any order made
thereunder ?
5 Whether it is to be circulated to the civil judge ?
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BHAVINBHAI BABUBHAI PATEL ....Applicant(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR ND NANAVATY, SR. ADV. WITH MR SK PATEL ADVOCATE for the applicant
MS. MAITHILI MEHTA, ADDITIONAL PUBLIC PROSECUTOR
MS TEJAL A VASHI, ADVOCATE for the Respondent No. 2
RULE SERVED FOR RESPONDENTS NOS. 3 AND 4.
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 04/04/2014
CAV JUDGMENT
Page 1 of 12
R/CR.MA/2394/2014 CAV JUDGMENT
This petition under section 482 of the Code of Criminal Procedure (for short `Cr.P.C.') is preferred for quashment of First Information Report, being I- C.R. No.I-1 of 2004, registered with Ranip Police Station, Ahmedabad, on 1 st January 2014, alleging offences punishable under sections 365, 328, 302 and 120B of the Indian Penal Code qua the petitioner.
2. Brief facts leading to the petition, as are relevant for the purpose of dealing with the controversy involved herein, are discussed as under:
2.1 The informant, Sangitaben is the wife of deceased Kaushalbhai Ramanbhai Panchal. Wife of the petitioner, Bhavinkumar and the deceased Kaushal and his brother Umesh Panchal were partners in the firm `Advance Deny Feb' since 2005.
2.2 The deceased accompanied the petitioner on 16th March 2013 at about 12.00 noon in an Indica car driven by Keshubhai for the purpose of recovery of business dues to Udaipur. According to the informant, before that, the deceased was reluctant to go there, making a grievance that the business accounts were not being settled since long, and that the efforts in past for such recovery were proved futile. The petitioner, however, persisted, stating that they should go for the recovery, as their debtors were waiting to pay, and that they may not get such chance of recovery in future. According to the informant, thus with much reluctance, the deceased went to Udaipur with the petitioner. After reaching Udaipur, the informant and her father-in-law interacted telephonically with the deceased respectively at about 6.30 p.m. and 8.30 p.m. They were informed that the deceased and the petitioner had lodged in hotel `Labgarh Palace', and were scheduled for Bhilwara on the next morning.
2.3 It is further alleged in the First Information Report that on the next day at about 10.00 a.m., her brother-in-law Umesh Panchal was telephonically Page 2 of 12 R/CR.MA/2394/2014 CAV JUDGMENT informed by his partner Pravin Shantibhai about the death of her husband Kaushal as a result of heart attack. It is alleged in the First Information Report that her brother-in-law sensing something fishy learnt on enquiry from the petitioner that the deceased consumed excessive beer on the preceding night, and had frequently vomited. He also informed the petitioner having registered an accidental death report being No. 14 of 2013 under section 174 of Cr.P.C. in Sukher Police Station of Udaipur city. It is alleged that suspecting a foul play, her brother-in-law Umesh Panchal pursued the matter further, and because of non-cooperation of Sukher Police Station, he had a resort to an application under Right to Information Act for collection of necessary information, whereupon various documents were supplied to him, including an F.S.L. Report, wherein a poisonous substance found in the viscera of the deceased was stated as deceased's cause of death. The informant further suspects in the First Information Report the unwarranted presence of one Jital Kansara, who, according to her, had not accompanied the deceased and Bhavinkumar, when they left for Udaipur on 16th March 2013 in the car, as aforesaid. According to the informant, dispute as regards partnership accounts was the motive for murder of her husband.
2.4 In so far as proceedings under section 174 of Cr.P.C. are concerned, it is a common ground that the investigation for a limited purpose of ascertaining the cause of death of the deceased is being carried out by Sukher police. It is also a common ground that the brother-in-law of the informant Umesh Panchal pursued the said matter through senior police officials raising various points for investigation as enumerated in the letter dated 25th March 2013 addressed by the informant's brother-in-law to Sukher police produced at Annexure `B' to the petition.
3. It appears that initially the informant's attempt to get her First Information Report registered in Ranip Police Station failed for want of jurisdiction to investigate the matter. However, on further persuasion with the Home Ministry Page 3 of 12 R/CR.MA/2394/2014 CAV JUDGMENT of the State, and various representations, it came to be registered in Ranip Police Station, Ahmedabad, on 1st January 2014. The said First Information Report is being questioned in the present petition, mainly for want of jurisdiction with Ranip Police Station, Ahmedabad to investigate it.
4. Learned senior advocate fairly conceded that petitioner's case was not based upon section 174 of the Cr.P.C. He also submitted that the scope of section 174 of Cr.P.C. as urged by the respondents, particularly, respondent No.2 herein, is also not disputed. Thus, no extensive discussion is called for in relation to section 174 of Cr.P.C.
5. The bone of contention of the petitioner in the petition is that the accidental death under registration No. 14 of 2013 was thoroughly investigated by Sukher Police Station, Udaipur, and that First Information Report in question came to be filed after unexplained delay of nine months, that it is nothing but a malicious prosecution, and is a second First Information Report. That in none of the documents preceding the First Information Report, the allegation of kidnapping was made, and thus, the story of kidnapping is a product of fertile mind so as to confer Ahmedabad police with the jurisdiction to investigate the case. That the factum of informant's husband going to Udaipur on 16th March 2013 was within her knowledge, and therefore, such an act cannot be nomenclated as an act of kidnapping.
6. Learned senior advocate would argue that so called case of kidnapping as pleaded in the First Information Report does not attract any of the ingredients of sections 359 and 362 of the Indian Penal Code, as the acts of persuading the deceased to go to Udaipur cannot be interpreted as deception or compulsion. It was argued that even the mens rea of kidnapping cannot be inferred from the averments made in the First Information Report, in asmuch as, concededly, twice the deceased had telephonic interaction with the informant and her father-in-law, during which also, no complaint of deceased having been kidnapped was made Page 4 of 12 R/CR.MA/2394/2014 CAV JUDGMENT by the deceased, to them. It was argued that a mere initiation of a journey from Ahmedabad would not confer a jurisdiction on Ahmedabad police to investigate the matter. It was argued that, therefore, the offence if any, did not occur in Ahmedabad, but at Udaipur, even if the facts alleged by the informant are taken at their face value. He, therefore, would contend that the question that requires consideration herein is as to who should investigate the offence.
7. According to the learned senior advocate, as per sub-section (1) of section 156 of Cr.P.C., in-charge police officer is entitled to investigate the offence occurring within the area over which the Magistrate concerned exercises his jurisdiction under Cr.P.C. As per his submission, sub-section (2) of section 156 does not save the jurisdiction to investigate the occurrence of an offence beyond the territorial limits of the Magistrate concerned. He would contend that, it is only in the eventuality of carrying out the investigation by an officer other than the officer in-charge of the Police Station, that the investigation is sought to be saved by sub-section (2) of section 156 of Cr.P.C. Learned senior advocate would rely upon section 2(h), 2(j), 2(o) and 2(s) as also section 173(2) and section 156(2) of Cr.P.C. in support of the aforementioned contention.
8. Learned senior advocate would also contend that the substantial part of the investigation under section 174 of Cr.P.C. was carried out by Sukher Police Station, Udaipur, and the transaction which is sought to be investigated in pursuance to the First Information Report in question is the same, and therefore, no fresh First Information Report was permissible, and consequently, no investigation can be carried out by different agencies. Reliance was placed upon Amitbhai Anilchandra Shah v. Central Bureau of Investigation [(2013) 6 SCC 348] in support of such contention.
9. It was contended that the enquiry under section 174 of Cr.P.C. was still pending, and therefore also, lodgment of the First Information Report on the same subject was an abuse of process of law.Page 5 of 12 R/CR.MA/2394/2014 CAV JUDGMENT
10. As against that, the learned Additional Public Prosecutor would contend that the proceedings pending under section 174 of Cr.P.C. may ultimately result into lodgment of First Information Report under section 154 of the Cr.P.C. on discovery of a cognizable offence. The learned Additional Public Prosecutor contended that otherwise, having regard to the documents placed on record, particularly the F.S.L. Report, the informant's version in relation to the occurrence in question, prima facie, requires acceptance. The learned Additional Public Prosecutor would rely upon Ashok Kumar Todi v. Kishwar Jahan (AIR 2011 SC 1254 and Radha Mohan Singh @ Lal Saheb v. State of Uttar Pradesh (AIR 2006 SC 951).
11. The learned counsel for the second respondent, the informant, would contend that the question of jurisdiction to investigate cannot be raised at this preliminary stage in view of section 156(2) of the Cr.P.C., and such question can be addressed at the time of framing of the charge after taking cognizance of the offence. Reliance was placed on various authorities, including Satvinder Kaur (NCT of Delhi) v. State [1999 (0) GLHEL-SC 25549]. It was argued that if the entire facts of First Information Report are taken into consideration, it would appear that the claim of the petitioner that Kaushal died of heart attack is belied by the F.S.L. Report, which indicated presence of insecticides in deceased's viscera and no alcohol as claimed by the petitioner was found, and thus, the so called persuasions, inducing or compelling the deceased to accompany the petitioner to Rajasthan, were ill designed, and were aimed at securing his custody so as to make the petitioner's ulterior motive easy, and thus, the offence of kidnapping as defined under section 362 of Cr.P.C. was made out. It was argued that thus a serious conspiracy was hatched to eliminate the deceased.
12. It was lastly contended that the accused cannot have any say in the matter of jurisdiction, which is the question between the police and the informant.Page 6 of 12 R/CR.MA/2394/2014 CAV JUDGMENT
13. From the aforesaid facts and the rival contentions, the main question that needs to be answered for the purpose of resolution of the dispute raised herein is as to whether, in view of section 156(2) of Cr.P.C., this Court under section 482 of Cr.P.C. would interfere in the investigation on mere ground of lack of jurisdiction with the Ahmedabad police to investigate the matter. Another question requiring consideration is whether in view of substantial part of the investigation having been carried by Sukher Police Station, Udaipur, under section 174 of the Cr.P.C., can the informant be directed to approach the same Police Station?
14. The answer to the first question would require interpretation of various provisions of Cr.P.C., including section 156. Such an exercise came to be made by Hon'ble Supreme Court in Satvinder Kaur (supra). There, place of occurrence was Patiala, and First Information Report was filed in Delhi. The Delhi High Court quashed the First Information Report for want of jurisdiction with the investigating officer at Delhi. After addressing the submission made before it, the Honourable Supreme Court in paragraphs 8, 9, 10, 11, 12 and 14 observed as under:
"8. In our view, the submission made by the learned Counsel for the appellant requires to be accepted. The limited question is whether the High Court was justified in quashing the FIR on the ground that Delhi Police Station did not have territorial jurisdiction to investigate the offence. From the discussion made by the learned Judge, it appears that learned Judge has considered the provisions applicable for criminal trial. The High Court arrived at the conclusion by appreciating the allegation made by the parties that the S.H.O., Police Station Paschim Vihar, New Delhi was not having territorial jurisdiction to entertain and investigate the F.I.R. lodged by the appellant because the alleged dowry items were entrusted to the respondent at Patiala and that the alleged cause of action for the offence punishable under Section 498A I.P.C. arose at Patiala. In our view, the findings given by the High Court are, on the face of it, illegal and erroneous because:Page 7 of 12 R/CR.MA/2394/2014 CAV JUDGMENT
(1) The S.H.O. has statutory authority under Section 156 of the Criminal Procedure Code to investigate any cognizable case for which an F.I.R. is lodged.
(2) At the stage of investigation, there is no question of interference under Section 482 of the Criminal Procedure Code on the ground that the Investigating Officer has no territorial jurisdiction.
(3) After investigation is over, if the Investigating Officer arrives at the conclusion that the cause of action for lodging the F.I.R. has not arisen within his territorial jurisdiction, then he is required to submit a report accordingly under Section 170 of the Criminal Procedure Code and to forward the case to the Magistrate empowered to take cognizance of the offence.
9. This would be clear from the following discussion. Section 156 of the Criminal Procedure Code empowers the Police Officer to investigate any cognizable offence. It reads as under:
156. Police Officer's power to investigate cognizable case:
(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 above-mentioned.
10. It is true that territorial jurisdiction also is prescribed under Sub-section (1) to the extent that the Officer can investigate any cognizable case which a court having jurisdiction over the local area within the limits of such police station would have power to inquire into or try under the provisions of Chapter XIII. However, Sub-section (2) makes the position clear by providing that no proceeding of a police officer in any such case shall at any stage be called in Page 8 of 12 R/CR.MA/2394/2014 CAV JUDGMENT question on the ground that the case was one which such officer was not empowered to investigate. After investigation is completed, the result of such investigation is required to be submitted as provided under Sections 168, 169 and 170. Section 170 specifically provides that if, upon an investigation, it appears to the Officer in charge of the police station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit for trial. Further, if the Investigating Officer arrives at the conclusion that the crime was not committed within the territorial jurisdiction of the police station, then F.I.R. can be forwarded to the police station having jurisdiction over the area in which crime is committed. But this would not mean that in a case which requires investigation, the police officer can refuse to record the FIR and/or investigate it.
11. Chapter XIII of the Code provides for "Jurisdiction of the Criminal Courts in inquiries and trials". It is to be stated that under the said Chapter there are various provisions which empower the Court for inquiry or trial of a criminal case and that there is no absolute prohibition that the offence committed beyond the local territorial jurisdiction cannot be investigated, inquired or tried. This would be clear by referring to Sections 177 to 188. For our purpose, it would be suffice to refer only to Sections 177 and 178 which are as under:
177. Ordinary place of inquiry and trial - Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.
178, Place of inquiry or trial. - (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, Page 9 of 12 R/CR.MA/2394/2014 CAV JUDGMENT it may be inquired into or tried by a Court having jurisdiction over any of such local areas.
12. A reading of the aforesaid sections would make it clear that Section 177 provides for 'ordinary' place of inquiry or trial. Section 178 inter alia provides for place of inquiry or trial when it is uncertain in which of several local areas an offence was committed or where the offence was committed partly in one local area and partly in other and where it consisted of several acts done in different local areas, it could be inquired into or tried by a court having jurisdiction over any of such local areas. Hence, at the stage of investigation, it cannot be held that S.H.O. does not have territorial jurisdiction to investigate the crime.
14. Further, the legal position is well settled that if an offence is disclosed the Court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed. If the F.I.R., prima facie, discloses the commission of an offence, the Court does not normally stop the investigation, for, to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. (Re: State of West Bengal v. Swapna Kumar .) It is also settled by a long course of decision of this Court that for the purpose of exercising its power under Section 482, Cr. P.C. to quash an FIR or a complaint, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se; it has no jurisdiction to examine the correctness or otherwise of the allegations."
Thus the questions raised as above stand answered. It is clear from the above passages that no interference is called for on the mere ground of jurisdiction at the stage of investigation, and such questions can be addressed only under the relevant provisions of Chapter XIII, when that stage is reached.
Page 10 of 12 R/CR.MA/2394/2014 CAV JUDGMENT15. Thus, the question as to whether the ingredients attracting the provisions of sections 359 and 362 of Cr.P.C. are present or not in the contents of the First Information Report can only be gone into after the investigation.
16. A bare look at sections 174 and 154 of the Cr.P.C. indicates that both the provisions operate in different fields. Therefore, notwithstanding the proceedings under section 174, the right of an aggrieved person to move the police under section 154 does not stand obliterated. That being the legal position, the informant cannot be non-suited on a mere ground of lack of jurisdiction with the investigator or on the mere ground of pendency of proceedings under section 174 of the Cr.P.C. in Sukher Police Station in Udaipur. True, that an investigation under section 174 of the Cr.P.C. may result into a finding as to commission of cognizable offence, and in that event, the concerned police official would be under an obligation to lodge a First Information Report, but concededly, such stage has not been attained so far, and therefore, there is no question of duplication of the proceedings, the scope of section 174 and 154 being different.
17. Reliance placed upon Amitbhai Anilchandra Shah (supra) to contend that in respect of same transaction no fresh First Information Report can be filed is misconceived on facts, in asmuch as, the purpose of section 174 and 154 being different, it cannot be said that in respect of the same transaction the First Information Report has been filed. For the self same reason, the contention that since major part of the investigation was done under section 174 at Udaipur, it is only the said police station which can investigate also has no merits.
18. In the light of the above legal and factual position, no substance is found in this petition. Hence rejected. Ad-interim relief granted earlier is vacated. Consequently, Criminal Miscellaneous Application No. 2394 of 2014 does not Page 11 of 12 R/CR.MA/2394/2014 CAV JUDGMENT survive. Accordingly, the same stands disposed of.
19. Learned counsel for the petitioner requested for stay of this order to enable him to approach the higher forum. This request is being objected to by the learned counsel for the respondents. If the order operates, the only thing that would be done would be investigation. Since this Court has taken the view that at this stage of proceedings the investigation cannot be hampered, the request is rejected.
(G.R.UDHWANI, J.) sndevu Page 12 of 12