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1992 DIGILAW 341 (CAL)

Anath Bandhu Kundu v. State of West Bengal

1992-08-26

Gitesh Ranjan Bhattacharjee

body1992
ORDER On the basis of F.I.R. lodged by one Kalpana Chowdhury on 16.12.89, Jorasanko P.S. (See.E) Case No. 564 dated 16.12.89 was started against the present petitioner under s. 376 IPC. In the F.I.R. the complainant gave her age as 14 years. The allegation in brief is that the present petitioner who is a resident of Calcutta has also a jewellery business as well as a flat in Bombay and the complainant who was a maid-servant was taken by the petitioner from Calcutta to Bombay in his flat in July and there committed rape on her against her wish and under threats. It is alleged that the complainant was in that flat in Bombay with the petitioner for six days in the first spell during which period he committed rape on her, and then they came back to Calcutta. It is the allegation of the complainant in the F.I.R. that after she returned to Calcutta at the end of the first spell of her stay in Bombay with the petitioner, she did not narrate everything to the wife of the petitioner out of fear and she only stated to her that at Bombay the petitioner, while drunk, used to embrace her. It is stated in the F.I.R. that the wife of the petitioner asked the complainant not to disclose the matter to anybody and the petitioner also used to threaten her (in Calcutta) that he would kill her in case she disclosed the matter to anybody. Then 16/17 the petitioner days before the Durga Puja the complainant was again taken by to his flat in Bombay where again he committed rape on her under threat during their stay there for 15 days in that spell. The G.R. Case No. 2920 of 1989 of the Court of Additional Chief Metropolitan Magistrate, Calcutta relates to the proceeding in connection with the investigation taken up by police on the basis of the said F.I.R. During the pendency of the proceeding the investigating officer made a prayer before the learned Additional Chief Metropolitan Magistrate, Calcutta for transfer of the case to the Court of the learned C.M.M. Bombay on point of jurisdiction. The learned Additional Chief Metropolitan Magistrate by his order dated 29.5.90 allowed the prayer of the Investigating Officer and directed for transfer of the case to the Court of the learned C.M.M. at Bombay. The learned Additional Chief Metropolitan Magistrate by his order dated 29.5.90 allowed the prayer of the Investigating Officer and directed for transfer of the case to the Court of the learned C.M.M. at Bombay. The Superintendent, Lilluah Rescue Home was also directed to arrange for sending the victim girl, Kalpana Chowdhury to the Court of the learned C.M.M. at Bombay. Against that order of transfer of the case to Bombay the petitioner/accused filed a revisional application in the City Sessions Court, Calcutta. By his order dated the 3ht August, 1991 the learned Judge of the City Sessions Court rejected the revisional application. Against that order the petitioner/accused has approached this Court under s. 482 Cr.P.C. 2. The question which now poses for an answer is whether the learned Magistrate was justified in transferring the proceeding to the Court of the learned C.M.M., Bombay on the ground of jurisdiction. It may be mentioned that the investigation which was undertaken at Calcutta by the police of Jorasanko P.S. was not yet concluded when the learned Magistrate passed the order for transferring the proceeding to Bombay on the prayer of the Investigating officer here. I have already mentioned the gist of the allegations made in the F.I.R. which read as a whole not only discloses allegations of rape punishable under s. 376 I.P.C. but also discloses allegations of threats and intimidations allegedly offered by the petitioner to the complainant both at Bombay as well as at Calcutta thereby importing the offence of criminal intimidation punishable under s. 506 of the Indian Penal Code. It is true that in the formal part of the F.I.R. which was recorded by the Officer-in-Charge of the Jorasanko P.S. only s. 376 I.P.C. has been noted but s. 506 I.P.C. which is also prima facie warranted by the allegations made by the complainant in the F.I.R has not been recorded in the formal part of the F.I.R. which however should have been recorded by the Officer-in-Charge of the police station in view of the specific allegations made by the complainant in the substantive part of the F.I.R. It is needless to mention that any omission or imperfection in the formal part of the F.I.R. which is recorded by a police officer cannot be a guiding factor, far less the decisive factor in judging the nature and import of the allegations made by the informant or the complainant in the substantive part of F.I.R. I have no hesitation to record that the allegations specifically made in the substantive part of the F.I.R contain ingredients of offences punishable under s. 376 I.P.C and s.506 I.P.C. also. Therefore the matter will have to be judged in the background of the allegations appearing in the substantive part of the F.I.R. and not on the basis of what the police officer might have recorded in the formal part of the F.I.R. as regard the provisions of law attracted by the allegations contained therein. It is presumed that when the investigating officer made the prayer for transferring the proceeding from Calcutta to Bombay he must have been labouring under an impression that since the offence under s. 376 I.P.C. was allegedly committed at Bombay the Calcutta police have no jurisdiction to investigate the case and the investigation must be done by Bombay Police. 3. Now let us examine how far it is correct to say that the Calcutta Police have no jurisdiction to investigate the case on the basis of the allegations contained in the F.I.R. Section 154 Cr.P.C. provides for recording of an information relating to the commission of a cognizable offence reported at the police station. Section 156 Cr.P.C. empowers the Officer-in-Charge of a police station to investigate, without the order of a Magistrate, 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. Section 156 Cr.P.C. empowers the Officer-in-Charge of a police station to investigate, without the order of a Magistrate, 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. It will thus be seen that the power of the police of any police station to investigate any cognizable case without the order of any Magistrate depends on the question whether the court having jurisdiction over the local area falling within the territorial jurisdiction of the police station would have power to inquire into or try any such case under the provisions of Chapter-XIII. For an answer to the question whether the Jorasanko Police have jurisdiction to investigate into the present case we will have to find out therefore whether the court having territorial jurisdiction over the local area of the said Police station has power under the provisions of Chapter-XIII to inquire into or try the offences allegedly Involved in the case. Chapter-XIII of the Criminal Procedure Code relates to jurisdiction of the criminal courts in inquiries and trials and contains 13 sections, namely 28 177 to 189. Before we go to the said Chapter-XIII we may here take notice of s. 155 (4) Cr. P. C. which provides that where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable. The import of the said provision is that where the allegation attracts two or more offences, but only one of them is cognizable, the police will be entitled, without the order of Magistrate to investigate all the offences involved in the case inspite of the fact that the other offences are not cognizable. 4. Now let us look to the relevant section in Chapter XIII of the Code of Criminal Procedure. Section 184 Cr.P.C. which appertains to Chapter-XIII reads thus :–– "184. 4. Now let us look to the relevant section in Chapter XIII of the Code of Criminal Procedure. Section 184 Cr.P.C. which appertains to Chapter-XIII reads thus :–– "184. Place of trial for offence triable together– Where– (a) the offences committed by any person are such that he may be charged with, and tried at one trial for, each such offence by virtue of the provisions of s. 219, s. 220 or s. 221, or (b) the offence or offences committed by several persons are such that they may be charged with and tried together by virtue of the provisions of s. 223, the offences may be inquired into or tried by any court competent to inquire into or try any of the offences”. Section 220 (1) Cr. P. C. reads thus: “220. Trial for more than one offence. – (1) if, in one series of acts so connected 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”. 5. As we have already seen the specific allegation of the complainant is that she was taken by the petitioner to Bombay from Calcutta on two occasions and on each occasion of stay at Bombay the petitioner committed rape on her by exercising criminal, intimidation and also during the Intervening period when they were in Calcutta the petitioner used to intimidate her not to disclose the matter to anyone, else he would kill her. Such threats at Calcutta prima facie constitute criminal intimidation punishable under s. 506 I.P.C. The commission of rape at Bombay under criminal intimidation or threat In the first spell of stay there followed by return to Calcutta and criminal intimidation at Calcutta threatening the complainant not to disclose the matter to anybody on pain of being killed, which was again followed by taking of the complainant to Bombay for the second time and commission of rape there again under threats indeed constitute one series of acts so connected together, viewed from the angle of the unity of purpose and the continuity of action for achieving such purpose, as to form one and the same transaction. If the allegations are true, it is evident that the petitioner exercised criminal intimidation on the complainant at Calcutta after the first spell of their joint stay at Bombay where rape was committed under threat. Such criminal intimidation at Calcutta, it is evident, was exercised for the purpose of preventing disclosure of the offence as well as for ensuring further submission of the complainant to the repeat commission of rape on her by the petitioner after taking her again to Bombay. There is, therefore, no difficulty in finding that the alleged criminal intimidation exercised by the petitioner on the complainant at Calcutta which was preceded and followed by taking of the complainant by the petitioner to Bombay and commission of rape there under criminal intimidation on both spells within a total span of about two or three months only formed part of one and the same transaction, namely, commission of rape on repeated occasions associated with and guarded by threats and intimidations offered for the purpose of ensuring compulsive submission of the complainant to the carnal desire of the petitioner as well as for preventing disclosure of the offence for facilitating the repeated commission of the same. 6. Since in view of the alleged facts and circumstances the criminal intimidations offered by the petitioner to the complainant at Calcutta and the commission of rape at Bombay under threats after taking her there formed parts of the same transaction, viewed from the angle of the unity of purpose and the continuity of action, the Court at Calcutta has jurisdiction to charge the petitioner under both the ss 376 and 506 IPC, and try both the charges at one trial in view of s.220(1) read with s. 184(a) of the Code of Criminal Procedure. Since again the Calcutta Court having jurisdiction over the Jorasanko P.S. (Calcutta) can try both the offences alleged in the statements forming the substantive part of the F.I.R. namely, the offences punishable under ss. 376 and 5061 P.C., the police of the Jorasanko P.S., Calcutta have therefore, in view of the provisions of s. 156(1) Cr.P.C., jurisdiction to investigate the case and it is not necessary or proper to send the case to Bombay either for police investigation or for inquiry or trial. 376 and 5061 P.C., the police of the Jorasanko P.S., Calcutta have therefore, in view of the provisions of s. 156(1) Cr.P.C., jurisdiction to investigate the case and it is not necessary or proper to send the case to Bombay either for police investigation or for inquiry or trial. I am, therefore, clearly of the opinion that the learned Additional Chief Metropolitan Magistrate, Calcutta was not justified in transferring the case to the Chief Metropolitan Magistrate, Bombay on ground of jurisdiction. 7. The impugned orders are accordingly set aside and the learned Additional Chief Metropolitan Magistrate, Calcutta is directed to call back the records of the proceedings of the case which were earlier sent to the Chief Metropolitan' Magistrate, Bombay and to direct the officer of the Jorasanko P.S., Calcutta to proceed with the investigation of the case and complete the same without undue delay in accordance with law. The learned Additional Chief Metropolitan Magistrate, Calcutta will require and permit the investigating officer of the Jorasaoko P.S. to include s. 506 IPC. also in the formal part of the F.I.R. along with s. 376 I.P.C. The revisional application stands disposed of accordingly. A copy of this order be immediately forwarded to the learned Additional Chief Metropolitan Magistrate, Calcutta for information and necessary action. Impugned order set aside; direction given to rail back the records.