Research › Browse › Judgment

Allahabad High Court · body

1975 DIGILAW 395 (ALL)

STATE OF U P v. JAI RAM

1975-08-11

HARI SWARUP

body1975
HARI SWARUP, J. This reference has been made by the III Temporary Civil and Sessions Judge, Kanpur for quashing the charge levelled by the learned Magistrate under Section 376, I. P. C. According to the prosecution, three accused Jairam Singh, Smt. Choti Bitia and Sita Ram had kidnapped a minor girl from the lawful custody of her guardian with intent to subjecting her to illicit inter course and that accused Sita Ram had subsequently committed rape on her. The learned Magistrate on the basis of the prosecution case committed the accused to the court of Sessions to stand their trial. An objection was taken by the accused to the trial of Sita Ram for the offence under Section 376, I. P. C. as the offence there under was said to have been committed at Kalpi in District Jalaun and not in Kan pur. Learned Sessions Judge relying on the case in State v. Shri Lal and others 1971 Cr. L. J. 141, held that the learned Magistrate at Kanpur had no juris diction either to take cognizance of the offence under Sec. 376, I. P. C. Qr to commit the accused to the court of Sessions in Kanpur for trial for that offence, and has referred the matter for quashing the part of the order of commitment that relates to charge under Section 376, Indian Penal Code. In the case of State v. Shri Lal (supra) a learned Single Judge of this Court took the view that the offence under Section 376, I. P. C. cannot be tried in a district wherefrom the girl was kidnapped if the rape was committed in another Sessions Division. Learned Govern ment Advocate has urged that this judgment requires reconsideration. The learned Judge considered the applicability of Section 179, Cr. P. C. and came to the conclusion that it did not apply to such a case. There can be no dispute about this proposition. The relevant section which can and does apply to a case of the nature is not Section 179 but Sec tion 180, Cr. P. C. Section 180, Cr. P. C. permits the trial of both the offences in a court within whose jurisdiction either of the acts is com mitted, Section 180, Cr. The relevant section which can and does apply to a case of the nature is not Section 179 but Sec tion 180, Cr. P. C. Section 180, Cr. P. C. permits the trial of both the offences in a court within whose jurisdiction either of the acts is com mitted, Section 180, Cr. P. C. : "when an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence, if the doer were capable of committing an offence, a charge of the first-mentioned offence may be inquired into or tried by a Court with in the local limits of whose jurisdiction either act was done. " Illustration (C) "a charge of wrongfully concealing a person known to have been kidnapped may be inquired into or tried by the court within the local limits of whose jurisdiction the kidnap ping, took place. " Illustration (c) to Section 180 indicates that an offence of rape under Section 376 could have been inquired into and tried in a court within whose territorial jurisdiction kidnapping had taken place. Even when this is so, I would have referred the matter to a larger Bench as on similar facts this Court in the case of State v. Shri Lal (1) had taken a different view, but it is not necessary to do so as the pro ceedings can be regularised under Section 526 of the Code of Crimi nal Procedure. Section 177, Cr. P. C. only makes an offence ordinarily inquirable and triable by a court within whose local limits it is committed but it does not prohibit the case being tried by any other court. Sections 176 and 180 of the Code are enabling sections. Section 526 (1) of the Code of Criminal Procedure runs as under: - "526. Section 177, Cr. P. C. only makes an offence ordinarily inquirable and triable by a court within whose local limits it is committed but it does not prohibit the case being tried by any other court. Sections 176 and 180 of the Code are enabling sections. Section 526 (1) of the Code of Criminal Procedure runs as under: - "526. High Court may transfer case or itself try it- (1) When ever it is made to appear to the High Court- (d) that an order under this section will tend to the general convenience of the parties or witnesses; or (e) that such an order is expedient for the ends of justice, or is required by any provision of this Code, it may order- (i) that any offence be inquired into or tried by any Court not empowered under Sections 177 to 184 (both inclusive), but in other respect competent to inquire into or try such offence; In the present case there is no dispute that the committal court as well as the learned Sessions Judge to whom the case had been com mitted are otherwise competent to enquire into and try the accused for the offence under Section 376, I. P. C. The only objection is about the directive contained, Section 177, Cr. P. C. The circumstances of the Case are such that it will be expedient for the ends of justice that the two offences be tried together. The trial of the accused in one court will also tend to the general convenience of the par ties and the witnesses. Kidnapping and rape are so connected in this case that it will not be expedient that they should be tried separately. The main witness will be the girl and she will have to relate the en tire story from the stage of kidnapping to the stage of rape. This is thus a fit case in which powers of this Court under Section 526 of the Code of Criminal Procedure be exercised to direct the learned Ses sions Judge to whom the proceedings have been committed to try the accused for all the three charges, viz. , 363, 366 and 376, I. P. C. Section 235 (1) also provides for a single trial for more offences. , 363, 366 and 376, I. P. C. Section 235 (1) also provides for a single trial for more offences. Section 235 (1) reads: "trial for more than one offence- (1) if, in one series of acts so committed together as to form the same - transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for every such offence. " In the present case, circumstances are so connected together that it would be just and proper to try the accused for both the offences-Kid napping and rape together. Further, Section 531, Cr. P. C. provides: "no finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong Sessions division, district, sub-division or other local area, unless it appears that such error has in fact occa sioned a failure of justice. " In the present case the order of committal has been passed by a cri minal court and it cannot be set aside unless there has been a failure of justice because of the matter being dealt with by the Magistrate, at Kanpur. As there are no circumstances for coming to the conclu sion that the passing of the committal order at Kanpur has occasioned failure of justice, the order cannot be quashed. For the reasons given above, the reference cannot be accepted it is, accordingly, rejected. The court below will now proceed expeditiously with the trial. .