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2024 DIGILAW 272 (UTT)

Stuti Agarwal v. State of Uttarakhand

2024-04-25

RAVINDRA MAITHANI

body2024
JUDGMENT : Ravindra Maithani, J. The challenge in this revision is made to the Judgment and Order dated 04.03.2024, passed in Sessions Trial No.02 of 2024, State of Uttarakhand vs. Anmol Agarwal, passed by the court of Additional Sessions Judge/FTSC, Rudrapur, District Udham Singh Nagar (for short, “the case”). By the impugned order, the court discharged the respondent no.2 from the charges under Section 376 IPC for the want of territorial jurisdiction, but observed that the trial of the accused shall proceed under Sections 452, 323, 506 IPC. Accordingly, the matter was transferred to the court of Magistrate of competent jurisdiction under Section 228 of the Code of Criminal Procedure, 1973 (“the Code”). 2. Heard learned counsel for the parties and perused the record. 3. The record reveals that the revisionist lodged an FIR against the respondent no.2 on 07.07.2022, under Sections 323, 376, 452, 506 IPC. According to the FIR, the revisionist and the respondent no.2 came close to each other through some social media late in the year 2019. With the consent of their parents on 17.01.2020, the revisionist along with the respondent no.2 visited Nainital. There the respondent no.2 married the victim by filling her hairline with the vermillion and thereafter, established physical relations with her. He continued establishing physical relations with the revisionist on multiple occasions under the pretext of marriage, but subsequently, he declined to marry. The FIR records that on 22.05.2022, in the afternoon the respondent no.2 along with some other persons entered into the house of the revisionist; assaulted her and threatened her to life. It is this FIR, in which, after investigation charge-sheet under Section 323, 376, 452, 506 IPC against the respondent no.2 has been filed. 4. By the impugned order, the court below observed that since the acts of rape were committed in Nainital and/or Bareilly, therefore, the court in Udham Singh Nagar has no territorial jurisdiction to try the case and, accordingly, discharged the respondent no.2 from the charge under Section 376 IPC. By the same order, as stated, the court transferred the trial of the case against respondent no.2 for the offence under Section 452, 323, 506 IPC to the court of Magistrate having competent jurisdiction. 5. Learned counsel for the revisionist would submit that the respondent no.2 established physical relations with the revisionist in Bareilly and Nainital and there were quite frequently meeting in Khatima also. 6. 5. Learned counsel for the revisionist would submit that the respondent no.2 established physical relations with the revisionist in Bareilly and Nainital and there were quite frequently meeting in Khatima also. 6. The Court posed a question to the learned counsel for the revisionist, as to whether ever any allegation of rape within the territorial jurisdiction of Udham Singh Nagar was levelled by the revisionist? He would reply in negative. 7. Learned counsel for the revisionist would also submit that the offence under Section 376 IPC may also be tried in the court in District Udham Singh Nagar in view of Section 220 of the Code. He would submit that the acts are so connected, so as to form the same transaction. 8. While passing the impugned order reference has been made to the judgment in the case of P XXX vs. State of Uttarakhand and another, 2022 SCC OnLine SC 752. In that case, it was the case of the victim that she was raped in Delhi and telephonically threat was extended to her when she was within the territorial jurisdiction of Chamoli. The court at Chamoli had discharged the accused in that case of the offence under Section 376 IPC on the ground of lack of territorial jurisdiction with liberty to the prosecution to proceed against the accused in the appropriate court. That order was challenged. Hon’ble Supreme Court discussed the provisions of Section 220 of the Code and in para 46, 47 and 48 observed as follows:- “46. Thus, in the aforesaid decisions in Mohan Baitha and Anju Chaudhary, this Court has underscored that the expression ‘same transaction’ seems to be having vague underpinnings; and this Court has also pointed out that no formula of universal application could be enunciated for determining as to whether two or more acts constitute the same transaction. However, even while pointing out that the question as to whether a series of acts are so connected together as to form the same transaction is purely a question of fact, this Court has indicated the core elements like proximity of time, unity or proximity of place, continuity of action and community of purpose or design, which are of relevant considerations and when these factors are applied to common sense and ordinary use of language, the vexed question of ‘same transaction’ could be reasonably determined. 47. 47. Keeping the aforesaid principles in view, we may examine as to whether the series of acts as alleged in the present case could be said to be so connected together as to form the same transaction. This is a pure question of fact and has been decided by the learned Sessions Judge against the appellant essentially on the considerations that the place of occurrence of alleged offence of rape was at Delhi; the offence of rape was not a continuing offence; and alleged threats given by the respondent No. 2 to the appellant on phone were not constituting such offences as to form a series of acts with the first-mentioned offence of rape. We have no hesitation in endorsing the views of the learned Sessions Judge on the facts of the present case. 48. In the present case, according to the appellant, her engagement with the respondent No. 2 took place on 13.11.2015 at village Dangidhar, Tehsil Gairsain, District Chamoli; later on, the accused-respondent No. 2 asked her to come to Delhi for purchasing and she did so, albeit reluctantly and on the alleged threat of the accused-respondent No. 2 to break the engagement; from 21.02.2016 to 24.02.2016, the accused-respondent No. 2 allegedly had had sexual intercourse with the appellant against her wishes and on the threat of dropping the matrimonial alliance; the accused later on allegedly asked her to bring Rs. 25 lakhs for construction of house and he would marry only upon receiving the money; the appellant's mother filed a complaint at Police Station Gairsain where the accused-respondent No. 2 allegedly filed an affidavit on 01.11.2016 assuring to marry the appellant in the month of December, 2016; however, he did not marry the appellant and instead, hurled abuses and threatened to kill her. As per the statement recorded by the appellant under Section 164 CrPC, she had also visited Delhi on 23.03.2016 on the asking of the accused-respondent No. 2 and at that time, the accused made physical relationship twice with her consent, which was given on the pretext of marriage.” 9. What forms the same transaction for it, there cannot be any straitjacket formula. It depends upon the facts and circumstances of each case. What forms the same transaction for it, there cannot be any straitjacket formula. It depends upon the facts and circumstances of each case. In the instant case, the chronology, as revealed, in the FIR is as follows : (i) Both, the revisionist and the respondent no.2 came close to each other in the month of December, 2019. (ii) The respondent no.2 promised to marry the revisionist. (iii) With the consent of the parents the revisionist joined the company of respondent no.2 to visit Nainital on 17.01.2020, where by making gesture of marriage, the respondent no.2 established physical relations with the revisionist. (iv) Under the pretext of marriage, on multiple occasions, thereafter, the respondent no.2 established physical relations with the revisionist. (v) On 17.05.2022, on a request having been extended by the respondent no.2 when the revisionist visited the place of respondent no.2, he and his family members denied for marriage. (vi) On 22.05.2022, the respondent no.2 along with some other persons entered into the house of the revisionist and attacked and threatened her to life. (vii) In her statement under Section 164 of the Code, in addition to what is stated hereinabove, the revisionist has also stated that she visited the respondent no.2 at Bareilly on multiple occasions, where the respondent no.2 established physical relations with her. The dates of physical relations having been established in Bareilly, have not been disclosed either in the FIR or in the statement under Section 164 of the Code. 10. There is no proximity between the act allegedly committed by the respondent no.2 on 22.05.2022 and the alleged rape that was committed by the respondent no.2 on 17.01.2020 and thereafter, the subsequent dates have not been disclosed by the revisionist. In the instant case, there are specific allegation that rape was committed in Nainital and Bareilly. There is no allegation of rape within the territorial jurisdiction of District Udham Singh Nagar. Rape is not a continuing offence. The court below has discussed the law and facts quite in detail while passing the impugned order. Under the facts and circumstances of the case, the court below has rightly held that court had no territorial jurisdiction to trial offence under Section 376 IPC for want of territorial jurisdiction. There is no illegality, impropriety or error in the impugned order. Therefore, no interference is warranted in this revision and the revision deserves to be dismissed. 11. Under the facts and circumstances of the case, the court below has rightly held that court had no territorial jurisdiction to trial offence under Section 376 IPC for want of territorial jurisdiction. There is no illegality, impropriety or error in the impugned order. Therefore, no interference is warranted in this revision and the revision deserves to be dismissed. 11. The revision is dismissed. 12. When these lines were dictated, learned counsel for the revisionist seeks liberty to seek such remedy against the respondent no.2 for the offence of rape, as is permissible under law. Undoubtedly, the revisionist is free to seek such remedy, as is permissible under law.