Bombay High Court
Praveen vs State Of Maharashtra on 4 May, 2001
Equivalent citations: 2001CRILJ3417
Author: R.K. Batta
Bench: R.K. Batta
ORDER
R.K. Batta, J.
1. The applicants have been charge-sheeted along with other co-accused for offences under Sections 363, 366, 376 read with Section 34 of IPC. An application for discharge was filed by the applicants on two grounds namely, (i) the Court has no jurisdiction to try the applicants since offence of rape alleged against them took place at Jabalpur that is to say outside the jurisdiction of Sessions Judge, Nagpur, where charge-sheet was filed; and (ii) the conduct of the prosecutrix shows that she was consenting party throughout and since her radiological age is shown as 16 years at the time of incident, no offence of rape can be said to have been made out by the applicants. This application was rejected by the learned Extra Joint District Judge and Additional Sessions Judge, Nagpur vide order dated 17-7-1997, which is subject-matter of challenge in these revisions.
2. The prosecution case, in brief, is that, on or about 24-10-1995, one Alankar, who is reported to be absconding, kidnapped the prosecutrix from Nagpur on the pretext of modelling and took her to Jabalpur. There she was kept in various hotels, large number of boys had raped on her. In the meantime, her mother had lodged a missing report and ultimately the prosefcutrix was found loitering in Nagpur near Hotel Upvan, near her house and was caught by the police. She was sent for medical examination on 21-11-1995. The medical examination revealed that she used to have sexual intercourse and her radiological age was about 16 years. After carrying out investigation, the police had charge-sheeted four accused and three were shown as absconding. The applicants are the ones who are shown absconding. Besides this, though accused Alankar is not shown absconding in Column No. 2 of the charge-sheet, yet he is stated to be absconding in Column No. 5 of the charge-sheet.
3. Learned Senior Counsel Shri C.P. Sen argued Criminal Revision Application No. 114 of 1997. Learned Advocate Shri Uday Dastane for the applicant in Criminal Revision Application No. 134 of 1997 adopted the arguments advanced by Shri C.P. Sen, Senior Counsel Learned App Shri A. G. Mujumdar argued on behalf of the State in both the revision applications.
4. The main contention urged by the learned Senior Counsel for the applicant is that kidnapping was completed at Nagpur and no consequence of this offence of kidnapping had taken place at Jabalpur and since the alleged rape had taken place at Jabalpur, the applicants cannot be tried at Nagpur. According to him, Section 179 of the Criminal Procedure Code is not attracted to the facts and circumstances of the case. In support of his submission, he has placed reliance on Emperor v. Mohanlal Aditram reported in AIR 1928 Bombay 475 (2): (1919 (30) Cri LJ 191); In re Jivandas Savchand, reported in AIR 1930 Bombay 490; Kashi Ram Mehta v. Emperor, ; State v. Tavara Naika, . The State v. Sri Lal, reported in 1971 Cri LJ 141 and Jagan Nath v. State of Haryana, reported in 1983 Cri LJ 1574. On the question of applicability of Section 223(d) (old corresponding Section 239(d)), reliance has been placed on Babulal Chaukhani v. King Emperor, . The State of Andhra Pradesh v. Cheemalapati Ganeswara Rao, . Rulings on scope and ambit of Section 34 of IPC and Section 149 of IPC have also been placed before me. It is also urged that alternatively on merits it is a case of consent and the prosecution of the applicants is ill founded.
5. On the other hand, learned APP has urged that the date of birth of the prosecutrix is 14-8-1980 and when the incident took place, the prosecutrix was only 15 years and as such the question of consent does not arise. Learned APP has urged that the offences, with which the applicants are charged, have been committed in the course of same transaction which started with the kidnapping of the prosecutrix at Nagpur and the prosecutrix was repeatedly raped by different persons including the applicants and those who have been charge-sheeted as also others at Jabalpur. Learned APP relied upon M. H. Alexander v. Smt. Claira Alexander , Haryana State Co-operative Supply and Marketing Federation Limited v. State of Punjab, reported in 1983 Cri LJ 1595; and Rampratap v. State, reported in 1970 Cri LJ 1559.
6. In view of the railings on which the reliance has been placed and taking into consideration the law on subject, I am of the opinion that though Section 179 of Cr.P.C. would not be attracted in the facts and circumstances of the case, yet the offences in question for which the applicants are being tried at Nagpur can be said to be part of the same transaction under Section 223(d) of Cr.P.C. A brief reference to the rulings and law on the subject is necessary at this stage in support of this conclusion.
7. Section 177 of Cr.P.C. provides that, every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed Section 179 of Cr.P.C. provides that when an act is an offence by reason of anything which has been done and of 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. This section confers jurisdiction on :-
(i) The Court within whose jurisdiction anything was done, by reason of which a person is accused of commission of offence; and
(ii) The Court within whose jurisdictional limits any consequence ensued by reason of which the person is accused of the commission of offence.
The expression “by reason of which” governs both the clauses i.e. anything which has been done and any consequence which has ensued. It is, therefore, not every consequence, which may flow from a crime, which may confer jurisdiction on the Court within whose jurisdiction it ensued. It is now well settled that if an offence is complete in itself by reason of the act having been done and the consequence is a mere result of it, not essential for completion of the offence, Section 179 will not apply.
8. Learned Senior Counsel for the applicants has relied upon Emperor v. Mohanlal Aditram (supra). In thifs case, the accused had kidnapped a girl at Bombay with intent that she may be forced to illicit intercourse or knowing it to be likely that she would be forced to illicit intercourse. The offence of rape is alleged to have been committed at Ahmedabad and the accused is alleged to have abetted that offence by his presence under Section 114 of IPC. In this set. of facts, it was held that Bombay Court had no jurisdiction to try the offence of rape which took place at Ahmedabad. There is no detailed reasoning for coming to the said conclusion nor the scope of Section 223 (corresponding Section 239(d) old) has been considered.
9. Learned Senior Counsel for the applicants had relied upon head note ‘B” of In re Jivandas Savchand (supra) to illustrate the principle behind Section 179 of Cr.P.C. In this connection, it has been laid down :-
What Section 179 provides is that when a person is accused of the commission of any offence by reason of two things; by reason, first, of anything which has been done and secondly of any consequence which has accused, then jurisdiction is conferred on the Court where the act has been done or the consequence has ensued. The offence therefore must be charged by reason of the two things, the act done and the consequence which ensued; and the consequence therefore forms the necessary part of the offence. Section 279 does not refer to an offence charged by reason of an act done, from which act any consequence has ensued.
Likewise, on the principle behind Section 179 reliance has been placed on Kashi Ram Mehta v. Emperor (supra), wherein it is laid down :-
Section 179 contemplates cases where the act done and the consequence ensuing therefrom together constitute the offence. If the offence is complete in itself by reason of the Act having been done and the consequence is a mere result of it which was not essential for the completion of the offence, then Section 279 would not be applicable.
Where an offence under Section 403, IPC is complete at D but actual loss falls or is likely to fall on a person residing at C, the Court at C has no jurisdiction to entertain complaint.
10. Learned Senior Counsel for the applicants next placed reliance on State v, Tavara Naika (supra). In this case, kidnapping falling under Section 366 of IPC fell within the jurisdiction of Bangalore Division, but the offence of rape under Section 376 of IPC was committed at places which were. not. within the territorial jurisdiction of Bangalore Division but were within the territorial jurisdiction of Shimoga Division. It was held that ordinarily the trial in so far as it relates to the offence under Section 376 of IPC is concerned, the same cannot take place within Bangalore Division as the Court has no jurisdiction to try the case under Section 376 of IPC. In view of Section 177 of Cr.P,C. The commitment of the accused for offences under S, 376 of IPC to the Sessions Court, Bangalore Division was, therefore quashed without prejudice to fresh proceedings before the Court having territorial jurisdiction, but the Sessions Court, Bangalore Division was directed to proceed with the trial under Section 366 of IPC. It may be pointed out here that this judgment has been held to be no longer good law by the Karnataka High Court in State of Karnataka v. M. Balakrishna reported in 1980 Cri LJ 1145. In this case, a minor girl was kidnapped from out of the lawful guardianship of her mother in Mudigere within, the jurisdiction of the Court of Session at Chickmagalur and the accused had forcible sexual intercourse with her at Shimoga It was held that committal order in regard to both the offences under Sections 366 and 376 of IPC are legal and the Court of Session at Chickmagalur had jurisdiction to try the said offences under Sections 366 as well as 376 of IPC though the offence of Section 376 was committed ourside the jurisdiction of the said Court. The Division Bench of the Karnataka High Court found that the case was covered within the expression “same transaction” occurring in Section 220 of Cr.P.C. The Division Bench of the Karnataka High Court has in this connection observed (at page 1150 of Cri LJ) :-
To constitute ‘same transaction’ the series of acts alleged against the accused must be connected together in same 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 came to an end. 1965 (1) Cri LJ 565 (Mys) and 1973 Cri LJ 908 (All) and 1970 Cri LJ 1559 (Raj) Relied on 1959 Cri LJ 1004 (Mys)/Held no longer good law in view of .
It is the intention mentioned in the former part of Section 366 of the IPC, 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 IPC 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.
11. Learned Senior Counsel for the applicant had next relied upon The State v. Sri Lal (supra). In this case, reliance was placed on Kashi Ram Mehta v. Emperor (supra); Emperor v. MohanlalAditram (supra) and State v. Tavara Naika (supra). In this case, a girl below 18 years was kidnapped by Srilal, Bhaiyan Singh and Chhotey Bhaiya from village Manjhia which is in district Hardoi with the intention that she may be raped by Srilal and Bhaiyan Singh. She was said to have been actually raped by said two accused persons in village Beoli which fell within the district of Unnao. This objection prevailed with the Sessions Judge who made this reference to the High Court. The view of the Sessions Court was upheld by the High Court on the ground that the facts of the case were not covered by Section 179 of Cr.P.C. It was found that Section 179 contemplates two things; the first is that the offender has done an act and the second is that a consequence has been followed by such act. The offences contemplated under Section 179 are those which are not complete till a special consequence has ensued and this consequence must be an essential ingredient of the offence. It was held that the offence of kidnapping is complete as soon as the person is kidnapped with the requisite guilty intention or knowledge and the consequence of the kidnapping or abduction does not form an essential part of the offence of kidnapping or abduc-tion under Section 366 of IPC.
12. Lastly, reliance was placed by the learned Senior Counsel for the applicants on Jagan Nath v. State of Haryana (supra). In this case, reliance was placed on the State v. Sri Lal (supra) and the view taken in Rampratap v. State was dissented. It was held that the provisions of Section 220 of Cr.P.C. 1973 on the basis of which Rajasthan High Court had rendered findings, would not be applicable since the said provisions would be applicable to offences which are committed in series of acts so connected together as to form the same transaction. In this case, the offence of kidnapping took place at Ambala and the minor girl was taken to Delhi where she was raped. It was held that the offence of kidnapping is complete as soon as the person is kidnapped with the requisite guilty intention or knowledge and the consequence of kidnapping or abduction does not form an essential part of the offence of kidnapping or abduction. The accused therein had been tried and convicted by the Additional Sessions Judge, Ambala. The High Court held that the accused cannot be tried at Ambala for the offence of rape alleged to have been committed at Delhi. Even in spite of these findings, the conviction of the appellant/accused Baij Nath was maintained under Section 376 of IPC but the sentence was reduced. His conviction and sentence under Section 363 of IPC was also maintained. In respect of the other co-accused Jagan Nath, it was found that there is no evidence that he actually took part in kidnapping the prosecutrix. There was allegation of rape against him, but, he was acquitted of the charge under Section 376 on the ground that he could not be tried for it at Ambala.
13. Learned APP, on the other hand, relied upon M. H. Alexander v. Smt. Claira Alexander (supra). In so far as scope and ambit of Section 179 of,Cr.P.C. is concerned, he has placed reliance on para 9 of this judgment, which reads as under (at page 15 of Cri LJ) :-
(9) It seems to me that the learned Sessions Judge did not care to read the illustrations along with the words of Section 179, Cr.P.C. If he had done so perhaps he would, not have passed the order which he did. Section 179, Cr.P.C. only applies to those offences which are not completed until the specified consequence has happened. This consequence must be a necessary part and ingredient of the offence. Where the offence is complete irrespective of any consequence, Section 179, Cr.P.C. has no application and the place where the act was committed would determine the jurisdiction of a Court.
It has been held in a large number of decisions which I need not cite, that Section 179, Cr.P.C. applies to those offences only where the act and its consequence taken together constitute the offence which is charged. It may be that the act by itself amounts to an offence and when this act is taken together with the consequence it constitutes a different offence. If the accused is to be prosecuted for the act alone then the jurisdiction of the Court where the consequence occurred will not arise, but if the accused is prosecuted for that offence which was completed by the act followed by its consequence then the Courts where the act was committed and where the consequence ensued will both have jurisdiction to try the offence.
The test to apply is whether the offender could have been prosecuted and punished for the offence charged even if the alleged consequence had not ensued. If the answer is in the affirmative then Section 179, Cr.P.C. does not apply, but if the answer is in the negative Section 179, Cr.P.C. does apply. It should also be remembered that the consequence should be closely related to the act and not merely a remote and contingent result. A proximity of time is essential between the act and the consequence.
A consequence which is not so related to the act may at best provide evidence of the act. It does not become a part of the act. In this case the fact that Smt. Karuna Kumari gave birth to a child only amounts to evidence of the fact that she had legitimate or illegitimate sexual relationship with a man. It may be a circumstance to support the other evidence of a bigamous marriage if it exists. The birth of this child cannot be considered a consequence with the meaning of Section 279, Cr.P.C.
14. Learned APP also placed reliance on State of Punjab v. Nohar Chand, . In this case, the accused were charged with manufacturing sub-standard fertilizers as also marketing sub-standard fertilizers. The Apex Court had held that the Court where the sub-standard fertilizer is marketed will equally have jurisdiction to try the manufacturer of the sub-standard fertilizers which is itself a distinct offence but they are so interconnected as to cause and effect, both can be tried at one place.
15. Learned APP had placed reliance on Rampratap v. State (supra). In this case, the petitioner was accused of kidnapping a minor girl from Bhawanimandi (Rajasthan) on or about 13th March, 1967. He took her to Indore and there on or about the 16th March 1967, committed rape upon her. On behalf of the accused, objection was raised that the offence under Section 376 of IPC according to the prosecution having taken place at Indore, the Magistrate, Bhawanimandi, had no jurisdiction to inquire into it. This objection was rejected by the Magistrate. The Magistrate held that Section 177 read with Section 180 of Cr.P.C. and more particularly its illustration (C), appended thereto, authorised him to inquire into the case at Bhawanimandi. The accused went in revision before the Additional Sessions Judge and he made a reference to the High Court recommending quashing of the order of the High Court. After referring to the judgment of the Apex Court in Purushottamdas v. State of West Bengal as also Sections 177 and 180 of Cr.P.C. it has been held that the offences under Sections 366 and 376 of IPC, 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 provisions of Section 235 (old) at either Bhawanimandi or at Indore. It was pointed out that in Emperor v. MohanlalAditram (supra), only Section 177 of Cr.P.C. was considered and therein Section 180 of Cr.P.C. or Sections 235 to 239 of Cr.P.C. (Old) had not been taken into consideration. In the circumstances, after placing reliance on the judgment of the Apex Court in Purushottamdas v. State of West Bengal (supra), it was held that the act of kidnapping and rape would fall within the expression “same transaction” has found in Sections 235 and 239 of Cr.P.C. (old). Accordingly, the reference was rejected.
16. From the above discussion, it is obvious that Section 179 of Cr.P.C. cannot be pressed into service by the prosecution and as such it is necessary to go into the question whether the applicants can be tried at Nagpur in the light of Section 180 and Section 223(d) of Cr.P.C.
17. Learned Senior Counsel for the applicant urged that in this case, there are no charges of conspiracy to commit the offence of rape and as such it cannot be said, nor there is material on record, that the offence of rape in question has been committed in the course of the same transaction. For that proposition, reliance has been placed on Babulal Chaukani v. King Emperor (supra).
18. Learned Senior Counsel for the applicants also placed reliance on The State of Andhra Pradesh v. Cheemalapati Ganeswara Rao (supra). In this case, the Apex Court pointed out that the object of enacting Section 239 is to avoid multiplicity of trials and the only limitation which could properly be placed on the trial of several persons for the same kind of or different offences would be that which considerations of justice and fairness would require while dealing with the expression “same transaction” occurring in Section 239 (old) vis-a-vis Section 235 (old). The Apex Court has laid down (at page 682 of Cri LJ) :-
(27) The question is whether for the purposes of Section 239(d) it is necessary to ascertain anything more than this that the different offences were committed in the course of the same transaction or whether it must further be ascertained whether the acts are intrinsically connected with one another. Under Section 235(1) what has to be ascertained is whether the offences arise out of acts so connected together as to form the same transaction, but the words- “so connected together as to form” are not. repeated after (sic) the words “same transaction” in Section 239, What has to be ascertained then is whether these words are also to be read in all the clauses of Section 239 which refer to the same transaction. Section 235(1), while providing for the joint trial for more than one offence indicates that there must be connection between the acts and the transaction. According to this provision there must thus be a connection between a series of acts before they could be regarded as forming the same transaction. What is meant by “same transaction” is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems ‘ to us to be a difficult task to undertake a definition of that which the legislature has deliberately left undefined. We have not come across a single decision of any Court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction. The connection between a series of acts seems to us to be an essential ingredient for those acts to constitute the same transaction and, therefore, the mere absence of words “so connected together as to form” in Clause (a), (c) (sic) and (d) of Section 239 would make little difference. Now, a transaction may consist of an isolated act or many consist of a series of acts. The series of acts which constitute a transaction must of necessity be connected with one another and if some of them stand out. independently they would not form part of the same transaction but would constitute a different transaction or transactions. Therefore, even if the expression “same transaction” alone had been used in Section 235(1), it would have meant a transaction consisting either of a single act or of a series of connected acts.. The expression “same transaction” occurring in Clauses (a), (c) (sic) and (d) of S, 239 as well as that occurring in Section 235 (1) ought to be given the same meaning according to the normal rule of construction of statutes. Looking at the matter in that way, it is pointless to inquire further whether the provisions of Section 239 are subject to those of Section 235 (1). The provisions of Sub-sections. (2) and (3) of Section 235 are enabling provisions and quite plainly can have no overriding effect. But it would be open to the Court to resort to those provisions even in the case of a joint trial of several persons permissible under Section 239.
19. Thus the real and substantial test for determining whether several offences are so connected together as to form the same transaction depends upon whether they are related to one another in point of purpose or to cause and effect or as principal and subsidiary acts as to constitute one continuous action. A mere interval of time between the commission of one offence and another does not by itself necessarily import want of continuity, though the length of the interval may be an important element in determining the question of the connection between the two. Proximity of time, unity of place or unity or community or purpose or design are not decisive tests. Continuity of action does, however, provide a decisive test. Continuity of action is thus an important test and if a continuous thread runs through the acts complained of, charges arising out of those acts would be liable to be tried together under Section 220 of Cr.P.C. Besides this, whether several offences are so connected as to form cause and effect, it may provide a substantial test. The acts constituting “same transaction” must form one series and if several independent acts are responsible for producing a particular result, they may constitute one series. In each case, therefore, the Court has to look to all the circumstances of the case and gather from the circumstances whether the transaction constituted by those various acts should be treated or not as one transaction.
20. The prosecutrix was kidnapped by Alankar, who is absconding from Nagpur, in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she may be forced or seduced to illlicit intercourse. Of course, absconding accused Alankar used the pretext of modelling and took her from Nagpur to Jabalpur. The offence of kidnapping under Section 366 of I.P.C. was completed with the co-accused Alankar who took the prosecutrix from the lawful guardianship with the requisite intention at Nagpur. However, it is pertinent to note that in so far as offence under Section 366 of I.P.C. is concerned, the kidnapping is with the intention that the prosecutrix may be compelled or forced or seduced to illicit intercourse or knowing it to be likefy that she will be forced or seduced to illicit intercourse. Therefore, as a result of kidnpapping under Section 366 of I.P.C, the prosecutrix is subsequently forced to illicit intercourse, it follows that the offence of kidnapping and rape form part of the same transaction.
21. In the case under consideration, kidnapping was with the intention that the prosecutrix will be compelled or knowing it to be likely that she will be forced to illicit intercourse and even though the offence under Section 366 of I.P.C. was complete when the prosecutrix was kidnapped from the lawful guaadianship with the said intention, yet the purpose for which she was kidnapped was achieved at Jabalpur where she was repeatedly raped by large number of boys. The offences in question are so connected as to form cause and effect that the offences in question can be tried at Nagpur. The offences in question are of series of acts so connected together as to form part of the same transaction. Though in Rampratap v. State and State of Karnataka v. M. Balakrishna (supra), the offences of kidnapping and rape were against the same person though committed in jurisdiction of different Courts and would fall under Section 220(1) of Cr.P.C, yet the same principle has to be extended and applied to the cases falling under Section 223(d) of Cr.P.C
22. In Rampratap v. State (supra), reliance was also placed on the illustration (c) to Section 180 of Cr.P.C. which refers to two distinct offences independent of one another, namely, kidnapping and concealment of kidnapped person, but in a given case, it is pointed out that there may be situation where one may not know who kidnapped and yet there may be concealment of the kidnapped at a different place. Notwithstanding this, the offence of kidnapping having taken place at point A and concealment having taken place at point B, yet both can be tried either of the two places in view of the illustration (c) to Section 180 of Cr P.C. On the basis of this analogy also kidnapping and rape though commited in different jurisdiction, yet constitute same transaction within the meaning of Sections 235 and 239 of Cr.P.C. (old). It was held that alleged kidnapping and alleged rape are so related to one another that they can be tried either at Indore where rape took place or at Bhawanimandi (Rajasthan) where the kidnapping took place.
23. In view of the above, I am of the opinion that the applicants can be tried at Nagpur as the offences of kidnapping and rape are not only so interconnected as to cause and effect but also that the series of acts are so connected as to form part of the same transaction within the meaning of Section 223(d) of Cr.P.C.
24. The question of consent of the prosecutrix would be a matter of evidence during the course of trial and at this stage it is too premature to go into this controversy. The prosecutrix case is that the rape was committed on her by the applicants and others against her consent. Therefore, at this stage it would not be appropriate to go into this question which will have to be examined after the evidence is led.
25. For the aforesaid reasons, I do not find any merit in the revisions and the revisions are hereby dismissed. Stay of the proceedings, if any, is hereby vacated.
26. By farad order dated 15-10-1997, the revisions, after admission, were directed to be expedited and it was ordered that they shall be heard within a period of four months. However, even though the matters were certified as ripe for hearing on 5-2-1998, yet the same were not placed before the Court after four months of 15-10-1997 and were put up only on 25-10-1999. It is, therefore, considered necessary that the Additional Registrar shall conduct an enquiry into the matter as to why these matters were not placed for final hearing before the Court within four months of 15-10-1997. The report of enquiry be placed before the Court within 15 days.