Calcutta High Court (Appellete Side)
Pramod Kumar Tekriwal & Ors vs State Of West Bengal & Ors on 29 April, 2014
Author: Dipankar Datta
Bench: Dipankar Datta
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29.04.2014 W.P. No. 11366 (W) of 2014
Pramod Kumar Tekriwal & ors.
Vs
State of West Bengal & ors.
Mr. Subir Sanyal
Mr. B. Bhakat
.........for the petitioners.
Mr. Billwadal Bhattacharya
.........for the respondent no.1.
Mr. S. Gangopadhyay ..........for the respondent no.5
1. This writ petition is at the instance of 5 (five) siblings (hereafter the accused, when referred to collectively). The first petitioner is the husband of the fifth respondent (hereafter the complainant). The second petitioner is the brother-in-law of the complainant, whereas the third to the fifth petitioners are her sisters-in-law. The accused by presenting this writ petition have questioned the action of the Officer-in-Charge, Gangapur Police Station, Nasik City in registering a first information report (hereafter the FIR), on a complaint dated March 29, 2013 of the complainant.
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2. The complaint reveals that the marriage between the first petitioner and the complainant was solemnized on November 29, 1989 at Kolkata; that all the expenses of the marriage were borne by the parents of the complainant; that after such marriage, she resided at her matrimonial home at Kolkata with the first three petitioners and the wife of the second petitioner; that the fourth and the fifth petitioners also used to visit her matrimonial home frequently; that three children were born in the wedlock of the first petitioner and the complainant, the second of whom has since expired; that the first petitioner is a habitual drunkard and under the influence of alcohol, he used to abuse and beat the complainant; that the second and the third petitioners on the plea of expanding their plywood business used to demand Rs.10 lakh from the complainant, which was refused on the ground that the complainant's parents were not so well off; that despite an open heart surgery undergone by the complainant, she was physically and mentally tortured by the first three petitioners, as well as by the other petitioners who used to frequently visit 3 her matrimonial home; that the complainant was not given food to eat and was made to survive on empty stomach; that she had been receiving threatening and abusive phone call; and that the attempt of the parents of the complainants to convince the accused had left no impact on them. It was, accordingly, alleged that the accused with common intention had physically and mentally tortured the complainant and demanded Rs.10 lakhs from her parents for expanding their plywood business and that there has been no change in their behaviour till date and "till date they are threatening me on phone and troubling me".
3. The point taken in the writ petition is that whole of the cause of action leading to registration of the complaint as FIR took place in Kolkata and, therefore, registration of the FIR at Gangapur Police Station by its officer-in-charge is absolutely unauthorized and without jurisdiction. It has, accordingly, been prayed for as follows:
"a. A writ in the nature of Mandamus directing the State of Maharashtra in general and the officer-in-charge, Gangapur Police Station respondent No. 2 in particular, not to proceed with the investigation of the case initiated 4 pursuant to the registration of F.I.R. being No. I- 81, of 2013 dated March 29, 2013;
b. A writ in the nature of Mandamus directing the respondent State of Maharashtra and the respondent No. 2 and his agents and personnel from taking any coercive measure against the petitioner in pursuance of and in connection with Gangapur Police Station F.I.R. No. I-81 of 2013 dated March 29, 2013;
c. A writ in the nature of Mandamus directing the State of Maharashtra to close the case initiated pursuant to the complain lodged by the respondent no. 5 on March 29, 2013 with Gangapur Police Station, Nasik city, being annexure P/1 to the instant petition. d. A writ in alternative to transfer the Criminal case in question started at Gangapur Police Station at Nasik to the Baguihati Police Station, in the District of North 24 Parganas, in the State of West Bengal;"
4. Appearing in support of the writ petition, Mr. Sanyal, learned advocate referred to the provisions of Sections 177 and 178 of the Criminal Procedure Code (hereafter the Cr.P.C.) and contended that the officer-in-charge committed gross jurisdictional error in not transferring the case diary to the appropriate police commissionerate in West Bengal having jurisdiction for conducting investigation. According to Mr. Sanyal, whole of the accusations leading to registration of the complaint relate to alleged incidents in Kolkata and, thus, the FIR ought to have been transferred for investigation. It is further contended by him that it would be extremely 5 difficult for the petitioners to appear in the relevant court at Nasik and they would be prejudiced in their defence.
5. In course of hearing the allegation regarding threatening and abusive phone call received by the complainant at Nasik was brought to Mr. Sanyal's notice by the Court. An argument was sought to be advanced that on the basis of receiving of a phone call, the complaint could not have been registered as FIR. However, to be fair to Mr. Sanyal, he did not advance further argument once Section 182 of the Cr.P.C. was brought to his notice.
6. Mr. Sanyal, however, urged that the complaint is vague and bereft of material particulars. The date on which the alleged phone call was made and by whom are conspicuous by its absence and that the story of phone call has been incorporated in the complaint mala fide.
7. The decision of the Supreme Court reported in AIR 2000 SC 2966 (Navinchandra N. Majithia vs. State of Maharashtra) was heavily relied on by Mr. Sanyal in support of his contention that the Officer-in- Charge, Gangapur Police Station by not transferring 6 the FIR did not perform his duty in the manner required by law.
8. Having heard Mr. Sanyal, this Court has not considered it necessary to call upon the respondents to answer.
9. Whether a police officer attached to a particular police station has the power to investigate an FIR, which is registered on a written complaint, is primarily to be determined based on the allegations levelled in the complaint. If the crime appears from the complaint to have taken place within the jurisdictional limits of one particular police station, ordinarily it is an officer attached to that police station who can investigate upon an entrustment being made in that behalf by the officer-in-charge and there can be no doubt on this score. However, in a given case where the complaint reveals a series of criminal acts, in continuation of the initial act of crime, giving rise to allegation of distinct offences having been committed within the jurisdictional limits of different police stations, for instance, a minor boy is kidnapped from place A and his father receives a call demanding ransom from place P at 7 place X, the investigation into the complaint could be conducted by an officer attached to a police station either within the jurisdictional limits of A or P where one of several criminal acts were committed, or even at X where the phone call is received, depending upon where the FIR is registered. This clearly appears on a true and proper construction of Sections 177, 178 and 182 of the Cr.P.C.
10. This Court is fortified in its view by the authoritative pronouncement of the Supreme Court in the decision reported in (1999) 8 SCC 728 [Satvinder Kaur vs. State (Govt. of NCT of Delhi], where upon noticing various provisions of the Cr.P.C. the Court had the occasion to observe as follows :
"12. A reading of the aforesaid sections would make it clear that Section 177 provides for 'ordinary' place of enquiry or trial. Section 178, inter alia, provides for place of enquiry 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 another and where it consisted of several acts done in different local areas, it could be enquired 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 the SHO does not have territorial jurisdiction to investigate the crime."8
It was also held :
"15. Hence, in the present case, the High Court committed a grave error in accepting the contention of the respondent that the investigating officer had no jurisdiction to investigate the matters on the alleged ground that no part of the offence was committed within the territorial jurisdiction of the police station at Delhi. The appreciation of the evidence is the function of the courts when seized of the matter. At the stage of investigation, the material collected by an investigating officer cannot be judicially scrutinized for arriving at a conclusion that the police station officer of a particular police station would not have territorial jurisdiction. In any case, it has to be stated that in view of Section 178(c) of the Criminal Procedure Code, when it is uncertain in which of the several local areas an offence was committed, or where it consists of several acts done in different local areas, the said offence can be enquired into or tried by a court having jurisdiction over any of such local areas. Therefore, to say at the stage of investigation that the SHO, Police Station Paschim Vihar, New Delhi was not having territorial jurisdiction, is on the face of it, illegal and erroneous. That apart, Section 156(2) contains an embargo that no proceeding of a police officer shall be challenged on the ground that he has no territorial power to investigate. The High Court has completely overlooked the said embargo when it entertained the petition of Respondent 2 on the ground of want of territorial jurisdiction."
11. The decision in (2007) 5 SCC 786 (Asit Bhattacharjee vs. Hanuman Prasad Ojha) reinforces the position thus :-
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"32. No such explicit prayer was made by the respondents in their writ petition, although a prayer for issuance of a writ in the nature of mandamus, directing the State of West Bengal to transfer Case No. 381 to the State of U.P., had been made. The question of the State of West Bengal's having a legal duty in that behalf did not arise. Only in the event an investigating officer, having regard to the provisions contained in Sections 154, 162, 177 and 178 of the Code of Criminal Procedure had arrived at a finding that the alleged crime was not committed within his territorial jurisdiction, could forward the first information report to the police having jurisdiction in the matter.
33. Stricto sensu, therefore, the High Court should not have issued such a direction. Assuming, however, that the High Court could mould the relief, in our opinion, it was not a case where on the face of the allegations made in the complaint petition, the same could be said to be mala fide. A major part of the cause of action might have arisen in the State of U.P., but the same by itself would not mean that the Calcutta Court had no jurisdiction whatsoever."
12. Turning to the facts before the Court, the complaint refers to phone call received from the accused which were threatening and abusive resulting in the complainant being troubled. The accused in paragraph 3 of the writ petition while pleading what the complaint is all about, have either consciously or unconsciously omitted making any reference to such phone call and have urged in paragraph 4 that the "alleged cause of action wholly arises in the 10 district of North 24 Parganas, in the State of West Bengal *****."
13. Now, it is settled law that at the stage of investigation the correctness or otherwise of the allegations levelled in the complaint are not to be examined; the same have to be treated as correct. Suffice it to note that treating the allegations as correct, what constitutes the foundational basis for the accusations that have been levelled against the accused are the demands for money, initially made at Kolkata that she could not meet, resulting in her being tortured physically and mentally and the continuation of such torture by threat and abuse received by the complainant on phone at Nasik. Whether or not the story of phone call was cooked up mala fide needs no discussion presently. Significantly, there is no pleading in the writ petition that none of the accused called up the complainant at Nasik to threat or abuse her. The words "anything which has been done" occurring in Section 179, Cr.P.C. for the present controversy would take within its fold the threat received by the complainant on phone, the call allegedly having 11 been made by some of the accused. Hence, if upon conclusion of investigation a charge-sheet is ultimately filed under Section 173(2) of the Cr.P.C. corroborating that indeed there was a threatening or abusive phone call, as alleged by the complainant, amounting to an offence there is no good reason as to why the Court at Nasik would have no jurisdiction to try the accused.
14. In fact, in course of arguments Mr. Sanyal also conceded that 99% of the criminal acts alleged in the FIR were committed in Kolkata and 1% in Nasik. Even if a small fraction of a series of criminal acts leading to registration of the FIR has taken place in Nasik, there is absolutely no reason to hold that investigation into the complaint suffers from error of jurisdiction.
15. The Court has to bear in mind the following observations made by the Supreme Court in its decision reported in (2008) 8 SCC 300 (Naresh Kavarchand Khatri vs. State of Gujarat) :
"The power of the court to interfere with an investigation is limited. The police authorities, in terms of Section 156 of the Code of Criminal Procedure, exercise a statutory power. The Code of Criminal Procedure has conferred power on the statutory authorities 12 to direct transfer of an investigation from one Police Station to another in the event it is found that they do not have any jurisdiction in the matter. The Court should not interfere in the matter at an initial stage in regard thereto. If it is found that the investigation has been conducted by an Investigating Officer who did not have any territorial jurisdiction in the matter, the same should be transferred by him to the police station having the requisite jurisdiction."
(underlining for emphasis by me)
16. The foundational facts giving rise to the FIR no doubt occurred substantially in Kolkata but one cannot ignore the continuation of such criminal acts, which might have occurred even at Nasik. The stage is absolutely premature for arriving at a finding as to whether registration of the FIR at Nasik and investigation thereof by a police officer attached to Gangapur Police Station would at all prejudice the accused or not. Mere fact that proceedings were taken in a wrong place would not have the effect of vitiating the trial, if any, unless it can be shown that there has been a failure of justice. Reference in this regard may be made to the Constitution Bench decision of the Supreme Court reported in AIR 1966 SC 128 (Mongal Das Raghavji Ruparel vs. State of Maharashtra). 13
17. Perusal of the decision in Navinchandra N. Majithia (supra) reveals that whole of the allegations leading to registration of the FIR at Imphal, Manipur had occurred in Mumbai, Maharshtra and that is the reason why the investigation was transferred to Mumbai Police. The ratio thereof does not apply here since even according to Mr. Sanyal, 99% of the allegations relate to incidents that took place in Kolkata.
18. It has been ascertained from Mr. Sanyal that the investigating officer has paid visit to Kolkata and interrogated some of the accused and that there has been no infraction of their liberty till date although the FIR was registered a year back. It is, therefore, clear that no arrest has been effected mechanically and discretion till date has been exercised by the investigating officer wisely.
19. I find no reason to entertain the writ petition. The same stands dismissed. There shall be no order for costs.
20. The officer investigating the FIR registered on the complaint of the complainant shall proceed strictly in accordance with law. Should he in course of 14 investigation form an opinion that he has no jurisdiction to investigate the FIR, he shall forthwith transfer the case diary to the relevant police station in Kolkata having jurisdiction.
21. Needless to mention, the observations in this order are for the purpose of disposal of this writ petition and in future, proceedings shall be taken to its logical conclusion uninfluenced by any observation made by this Court on facts.
Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant at an early date.
(DIPANKAR DATTA, J.) 15