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2010 DIGILAW 1186 (PAT)

Sitaram Sah v. State of Bihar

2010-05-07

DHARNIDHAR JHA

body2010
Order This petition has been •filed by the complainant of Complaint Case No. 241C of 2004, a copy of which was se1t by the Chief Judicial Magistrate, Begusarai, to Sahebpur Kamal Police Station for investigation under Section 156(3) of the Cr. P.C.. Accordingly, Sahebpur Kamal Police Station Case No. 121 of 2004 was instituted and the investigation was taken up. 2. It appears that during the course of investigation a petition was filed by the I.O. of the case annexing therewith the supervision note of the Dy. Superintendent of Police, Ballia which indicated to the Chief Judicial Magistrate, Begusarai that the place of occurrence of the case being in Hisar (Haryana) it was legitimate for the court to transfer the whole case to the Chief Judicial Magistrate, Hisar (Haryana) for further investigation or any other Officer for proceeding. The learned Chief Judicial Magistrate took up the petition for disposal on 20.9.2007 and found that the case under Sections 366 and 380 of the Penal Code was one relating to the offences serious in nature and also required to be investigated into and as such directed the whole record of Sahebpur Kamal P.S. Case No. 121 of 2004 to be transferred for "trial and disposal" to the Chief Judicial Magistrate, Hisar, Haryana. 3. Being aggrieved by the above order the complainant/informant of the case has filed this petition as indicated above at the very outset of the present order. 4. While addressing arguments Shri Ashwini Kumar Sinha, learned Senior Counsel for the petitioner has drawn the attention of the Court to the provision of Chapter-XIII of the Cr.P.C., which is headed "Jurisdiction of the Criminal Courts in enquiries and trials". It has been submitted by drawing the attention of the Court to the provision of Section 181 of the Cr.P.C. that when it appears that any offence has been committed partly in one jurisdiction and partly in the other then any of the courts of either of the jurisdictions could have the jurisdiction to enquire into and try the offence. It was contended that territorial jurisdiction of the court was restricted only to enquiries and trials and not to investigation and further that there being quite some difference between 'investigation' and 'enquiry', the same principle may not apply to the case which could be investigated into by the police at a particular place. It was contended that territorial jurisdiction of the court was restricted only to enquiries and trials and not to investigation and further that there being quite some difference between 'investigation' and 'enquiry', the same principle may not apply to the case which could be investigated into by the police at a particular place. It was contended also that even assuming that the principles could apply in a case under the Cr.P.C., then the very principle enshrined in Section 181 of the Cr.P.C. made it competent that the case should be tried by any court of competent jurisdiction in Begusarai District. 5. Responding to the above contention Shri Anil Kumar Sharma, learned counsel for opposite party no. 2 has submitted that the contention of the learned counsel for the petitioner might be correct in the light of the provision of Chapter-XIII of the Cr.P.C. but it is too early to take a decision on the order as the learned Chief Judicial Magistrate, Begusarai, has actually transferred the case for trial by the court at Hisar, Haryana. 6. The provision of Chapter-XIII of the Cr.P.C. relates to enquiry and trial of offences which could be committed within the local jurisdiction of a court. What appears from the provision of that particular Chapter is that the main criteria and consideration for deciding the fora for enquiries and trials could be the local area jurisdiction of a court. However, the legislature has visualised many aspects of commission of an offence, like, say for example, a girl is picked up in Patna, she is taken by force to Kolkata to be confined and raped there and is further shifted from there for committing the same offence to Mumbai. A question for being decided by the court could be as to which court of any of the three jurisdictions could be competent to try the offence. It is for the above reason that the legislature visualized clarifying the position and indicating as to where the trial could b• held in respect of such continuing offence and as such provided by the draft of Section 181 of the Cr.P.C. that if any offence is found committed at various places, any of the courts situated at any of those places could be competent to enquire into and try the case. But, while construing the provision of Chapter-XIII one has always to remind himself that the provisions are confined only to place of enquiries and trials and not investigation. This, I propose to hold in the light of the definition of 'enquiry' and 'investigation' as per Section 2(g) and 2(h). The definition of the word 'enquiry' is as follows:- Section 2(g).'''Enquiry means every enquiry, other than a trial, conducted under this Code by a Magistrate or court." 7. What appears from the above definition of the term 'enquiry' is that it may not be a trial. The effective definition does not really define the word 'enquiry; rather the implication and import of the term 'enquiry' could be considered keeping in mind the procedures of various trials. Some of the procedures of trial are commonly followed as prescribed by the Cr.P.C. as also by the rules of evidence. Trials are held by courts, may be by a Judge or by a Magistrate who is empowered to try the offences under the schedules of the Cr.P.C. and is further empowered to examine the witnesses as per the provisions of Section 26 and are empowered to inflict sentences as per Sections 28 and 29 of the Cr.P.C. Besides, in a trial the evidence is collected and recorded only when a witness is administered oath. When one considers the procedure of holding an enquiry one could find that it ;s at all not necessary that oath be administered to a witness to come to give his statement in an enquiry under Section 202 Cr.P.C. A trial ends in a judgment, may be of acquittal or conviction after fully following the procedures of the Cr.P.C. in Chapters-XVIII, XIX, XX and XXI. Whereas, an enquiry may end up in an order under Section 203 or 204 of the Cr.P.C. Thus, these are some of the identifying distinctions between an enquiry and a trial. So, an enquiry in real terms could be collection of evidence which could be in a manner different from collecting evidence in a trial. What further follows from the above definition is that it has always to be done by a Magistrate. Then, one could pose a question as to what could be, the meaning of the word 'Magistrate'. 8. So, an enquiry in real terms could be collection of evidence which could be in a manner different from collecting evidence in a trial. What further follows from the above definition is that it has always to be done by a Magistrate. Then, one could pose a question as to what could be, the meaning of the word 'Magistrate'. 8. For getting answer to that question one shall always have to consult the provision of Section 3 of the Cr.P.C. 'Magistrate' always connotes a Judicial Magistrate. Section 2(g) uses the word 'Magistrate'. So the Magistrate who could be competent to hold an enquiry has always to be a Judicial Magistrate and needless to say that he has to follow the procedure for collecting materials by holding the enquiry under Section 202 Cr.P.C. 9. This brings me to consider as to what could be the meaning of the word 'investigation'. This term has been defined in the Cr.P.C. in Section 2(h) and with more clarity than the word 'enquiry' is defined by the Code. Investigation has been defined to include all the proceedings under the Code for collection of evidence by a Police Officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf. Thus, the basic difference is that the purpose being the same of collecting materials as regards the commission of an offence, it has to be done either by a Police Officer or by any other person who could be different from a Magistrate. Besides, investigation has to be conducted either by the police or by any other person only when there is an order of authorization by a Judicial Magistrate. 10. It is true that the word 'evidence' has been used while defining he term 'investigation' but it is too well known to be pointed out that it has never to be attached with the same meaning as is given to the term 'evidence' in the Evidence Act and has to be understood in court room parlance. 11. 10. It is true that the word 'evidence' has been used while defining he term 'investigation' but it is too well known to be pointed out that it has never to be attached with the same meaning as is given to the term 'evidence' in the Evidence Act and has to be understood in court room parlance. 11. Thus, what follows from the above analogy on the definition of 'enquiry' and 'investigation', one could safely say that the provisions of Chapter-XIII of the Cr.P.C. could not be applicable to an investigation, but because the investigation could ultimately end up into a trial by following the procedure of the Cr.P.C. in that behalf, one has always to keep in mind that investigation must also be done by the police of the same jurisdiction which could have the jurisdiction to try the offence. This is what I understand from the provision of Chapter-XIII of the Cr.P.C. 12. Now, the question is as to what could be the consideration upon which the court could decide the territorial jurisdiction for holding an enquiry or holding a trial. Undisputedly, this could be the averments which could be made in a petition of complaint or the F.I.R. Considering the complaint petition which was the basis for drawing up the F.I.R., what appears from the averments made in the complaint petition is that the wife of the complainant along with the luggage, a brief-case, containing some of his valuables and other materials were taken away by opposite party no. 2. The complainant has stated in his complaint petition that he learnt about the above offence after he found his wife had disappeared from his house when he came back from the market after having purchased some food materials. He had specifically stated at page 3 of the complaint petition that the petitioner was found moving with the wife of the complainant and his family members in a rickshaw on the National Highway and in spite of his best efforts he could not trace out either his wife or the accused and when he went to lodge a report with Sahebpur Kamal Police Station, he was asked to file a complaint. The complainant has stated that his house was situated at Village-Naya Tola, Police Station Sahebpur Kamal, District-Begusarai. The complainant has stated that his house was situated at Village-Naya Tola, Police Station Sahebpur Kamal, District-Begusarai. Thus, on averments which have been made in the F.I.R. and which have to be taken to be true for the purpose of discerning the territorial jurisdiction, the wife of the complainant and his family members were taken away by opposite party no. 2 from the house situated within the territorial jurisdiction of a court situated in Begusarai. Thus, the order of the learned Chief Judicial Magistrate, Begusarai, making over the case to the Chief Judicial Magistrate, Hisar, Haryana for trial appears to this Court completely erroneous and against the provision of law. That order appears completely outside the four walls of the Cr.P.C. and appears passed without considering the provision of law in the light of the facts of the case. What struck this Court most is that the learned Chief Judicial Magistrate, Begusarai, passed the order on the petition of the Investigating Officer on 20.9.2007 without letting the informant an opportunity of being heard. This also strikes at the very root of the order and its correctness. 13. I am of the considered view that the order was completely an abuse of the process of the court and, as such, it requires to be quashed and the same is hereby quashed. 14. The petition is allowed. It is directed that the Chief Judicial Magistrate shall issue a direction to the concerned Police Station to proceed with the investigation of the case and submit a report of whatever nature as appears legitimate as the result of investigation before him so that he could further proceed in the matter.