Indian Kanoon - Search engine for Indian Law

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.

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.

9. Mr. Barot then invited my attention to two decisions of the Punjab and Haryana High Court and Travancore-Cochin High Court viz. AIR 1965 Punj 443 : 1965 (2) Cri LJ 668 and AIR 1955 Trav-Co 26 : 1955 Cri LJ 310. 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.