MS. P XXX versus STATE OF UTTARAKHAND & ANR on 16 June 2022

324

SUPREME COURT REPORTS

[2022] 15 S.C.R.

MS. P[1] xxx

A

v.

STATE OF UTTARAKHAND & ANR.

(Criminal Appeal No. 903 of 2022)

B

JUNE 16, 2022

[DINESH MAHESHWARI AND VIKRAM NATH, JJ.]

Code of Criminal Procedure, 1973 – ss.177-180, 184, 218,220 – Penal Code, 1860 – ss.376, 504, 506 – Allegations againstCrespondent No.2-accused consisting of offences of distinct nature,one set of allegations is of the offence of rape at Delhi (s.376, IPC)and the other set of allegations is of hurling abuses and extendingthreat on phone calls received by the appellant at her village inDistrict Chamoli (ss.504, 506 IPC), if could be said to be ‘one seriesDof acts so connected together as to form the same transaction’ forthe purpose of trial together in terms of s.220, CrPC – Held: On13.11.2015, the appellant and the respondent no.2 were engagedfor matrimonial alliance at their village Dangidhar, Tehsil Gairsain,District Chamoli but, the proposal of marriage did not materialize –However, the alleged acts of sexual relationship took place at DelhiEin the months of February and March, 2016 – The other allegedacts had been of the respondent no.2 hurling abuses and extendingthreats in or around the month of November, 2016, which theappellant received over telephone at her village – The acts in questionwere neither proximate in time nor proximate in place; they wereFnot of continuity either–It is difficult to find continuity of actionsand community of purpose or design in two different acts leadingto two different set of offences, i.e., one u/s.376 and the other underss.504/506– Thus, on facts, the alleged offence u/s.376 and theother offences u/ss.504 and 506 do not fall within the ambit of ‘oneseries of acts so connected together as to form the same transaction’G

1 Looking to the subject matter of this appeal, which involves the accusations pertainingto the offence of rape punishable under Section 376 of the Indian Penal Code, 1860, wehave masked the identity of the appellant and substituted her name by the expression“Ms. P” in the title as also in the body of this judgment, wherever occurring.

The office shall take care while issuing the relevant copies to not disclose theHidentity of the appellant.

for the purpose of trial together in terms of s.220 CrPC – Thus, theSessions Judge, Chamoli rightly discharged the respondent no.2 ofthe offence u/s.376 for want of territorial jurisdiction.

Constitution of India – Article 20 –Code of CriminalProcedure,1973 –s.300 – Allegations against the respondent No.2-accusedwere of offence u/s.376 as allegedly committed in Delhi and u/ss.504and 506 IPC where the respondent no.2 allegedly hurled abusesand extended threats which the appellant received over telephoneat her village in Chamoli, Uttarakhand – Sessions Judge, Chamoliwhile discharging the respondent no.2 of the offence u/s.376 onthe ground of lack of territorial jurisdiction transferred the matterto the Court of Judicial Magistrate First Class, Gairsain, DistrictChamoli for trial of the respondent No. 2 in relation to the remainingoffences u/ss.504 and 506 IPC wherein respondent no.2 wasacquitted – Held: Respondent No.2 having gone through the trialin relation to offences u/ss.504 and 506 IPC and having beenacquitted, cannot be subjected to another trial for the same chargeson the same facts – Any such process would be in blatant disregardof the settled principles which disapprove double jeopardy and areprecisely contained in Article 20(2), Constitution of India as alsos.300, CrPC –Protection u/clause (2) of Article 20 of the Constitutionof India is clear and unambiguous.

Code of Criminal Procedure, 1973 – s.461(1) –Segregationof charge of the offence u/s.376, IPC from offences u/ss.504, 506IPC – Accused-respondent No.2 acquitted of offences u/ss.504,506IPC – Plea of State that the segregation of charge of the offenceu/s.376 IPC had been erroneous and because of this error, the matterwent to trial before the Judicial Magistrate for the offences u/ss.504and 506 IPC though the entire matter ought to be tried in the Courtof Sessions – Held: Rejected – There had been no error insegregation of the charge of the offence u/s.376 IPC – This line ofsubmissions, questioning the validity of the proceedings before theJudicial Magistrate, remains baseless and is rather misplaced.

Words & Phrases – “same transaction”– Discussed – Tests tobe applied for determining the question as to whether two or moreacts constitute the same transaction.

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ADismissing the appeal, the Court

HELD: 1.1 The provisions of Section 178 CrPC essentiallydeal with a singular offence which is either partly committed inone area and partly in another; or continues to be committed inmore local areas than one; or it consists of several acts done inBdifferent local areas; or when it is uncertain of which of the severalareas it has been committed. This provision primarily operatesin relation to one and the same offence, which gets bifurcatedinto, or is spread over, different local areas because of continuingacts or different acts, one after another, like the offences ofSection 498-A or Section 406 IPC in the referred cases. Then, inCthe eventuality of an act being an offence for anything which hasbeen done and consequence that has ensued, as per Section 179CrPC, the offence could be tried by a Court within whosejurisdiction the act has been done or where the consequence ofsuch an act has ensued. Further, as per Section 180 CrPC, whenDan act is an offence because of its relation to any other act whichis also an offence, the former could be tried by a Court withinwhose local jurisdiction either of the act is done. These provisionsprovide exception to the normal rule envisaged by Section 177CrPC that every offence shall ordinarily be inquired into and triedby a Court within whose local jurisdiction it was committed. [ParaE19.2][349-A-D]

1.2 Whether the series of acts as alleged in the presentcase could be said to be so connected together as to form thesame transaction is a pure question of fact and has been decidedby the learned Sessions Judge against the appellant essentiallyFon the considerations that the place of occurrence of allegedoffence of rape was at Delhi; the offence of rape was not acontinuing offence; and alleged threats given by the respondentNo. 2 to the appellant on phone were not constituting such offencesas to form a series of acts with the first-mentioned offence ofGrape. This Court has no hesitation in endorsing the views of thelearned Sessions Judge on the facts of the present case. In thepresent case, according to the appellant, her engagement withthe respondent No. 2 took place on 13.11.2015 at villageDangidhar, Tehsil Gairsain, District Chamoli; later on, theaccused-respondent No. 2 asked her to come to Delhi forH

purchasing and she did so, albeit reluctantly and on the allegedthreat of the accused-respondent No. 2 to break the engagement;from 21.02.2016 to 24.02.2016, the accused- respondent No. 2allegedly had had sexual intercourse with the appellant againsther wishes and on the threat of dropping the matrimonial alliance;the accused later on allegedly asked her to bring Rs. 25 lakhs forconstruction of house and he would marry only upon receivingthe money; the appellant’s mother filed a complaint at PoliceStation Gairsain where the accused-respondent No. 2 allegedlyfiled an affidavit on 01.11.2016 assuring to marry the appellant inthe month of December, 2016; however, he did not marry theappellant and instead, hurled abuses and threatened to kill her.As per the statement recorded by the appellant under Section164 CrPC, she had also visited Delhi on 23.03.2016 on the askingof the accused-respondent No.2 and at that time, the accusedmade physical relationship twice with her consent, which wasgiven on the pretext of marriage. [Paras 21 and 22][352-G-H;353-A-E]

1.3 A close look at the alleged events/acts bring to fore thebasic feature that on 13.11.2015, the appellant and the respondentNo. 2 were engaged for matrimonial alliance at their villageDangidhar, Tehsil Gairsain, District Chamoli but, the proposal ofmarriage did not materialise. However, the alleged acts of sexualrelationship took place at Delhi in the months of February andMarch, 2016. The other alleged acts had been of the respondentNo. 2 hurling abuses and extending threats in or around the monthof November, 2016, which the appellant received over telephoneat her village. The acts in question were neither proximate intime nor proximate in place; they were not of continuity either.Significantly, while the appellant had alleged that she submittedto the sexual acts because of the threat by the respondent No.2to snap the proposed alliance but it had not been her case thatthe respondent No. 2 attempted to coerce her into the samephysical relationship while hurling abuses or threatening to killat the later part of time. Thus, it is difficult to find continuity ofactions and community of purpose or design in two different actsleading to two different set of offences, i.e., one under Section376 IPC and the other under Sections 504/506 IPC. Putting itdifferently, so far as the act leading to the offence of rape under AB

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ASection 376 IPC is concerned, even as per the allegations of theappellant, that particular act was a completed one and the originaldesign of subjecting the appellant to physical relations wasaccomplished at Delhi in the months of February and March, 2016.As noticed, there is no allegation of such an activity havingcontinued later or having taken place at Chamoli or even anyBthreat having been extended to the appellant to again submit tosuch an activity. Viewed from this angle too, the completed actconcerning one offence (Section 376 IPC) could not have beenconnected with the other acts leading to other offences. On thefacts of this case, the offence under Section 376 IPC as allegedlyCcommitted at Delhi, being different and distinct than the otheroffences and being not of same transaction, could not have beentried by the Courts at Chamoli. Therefore, the order passed bythe learned Sessions Judge calls for no interference. [Paras 22.1and 23][353-F-H; 354-A-C, E-F]

DMohan Baitha and Ors. v. State of Bihar and Anr. (2001)4 SCC 350; Anju Chaudhary v. State of Uttar Pradeshand Anr. (2013) 6 SCC 384 : [2012] 13 SCR 901 –relied on.

1.4 Another aspect of the matter pertains to the impact,Eimplication and consequences of the judgment and order dated01.05.2019 as passed by the Judicial Magistrate First Class,Gairsain, District Chamoli in Criminal Case No. 137 of 2017,whereby the accused-respondent No. 2 has been acquitted of theoffences under Sections 504 and 506 IPC, as also the validity ofsuch proceedings before the learned Judicial Magistrate. It hasFbeen suggested on behalf of the respondent No. 1-State that thesegregation of charge of the offence under Section 376 IPC hadbeen erroneous and because of this error, the matter went totrial before the learned Judicial Magistrate for the offences underSections 504 and 506 IPC though the entire matter ought to beGtried in the Court of Sessions. Section 461 CrPC has been referredto in that regard. Although, for what has been discussed and heldhereinbefore, there had been no error in segregation of the chargeof the offence under Section 376 IPC, yet it need be stated thatthis line of submissions, questioning the validity of theproceedings before the learned Judicial Magistrate, remainsH

baseless and is rather misplaced.It has been suggested on behalfof the respondent No. 1-State that the segregation of charge ofthe offence under Section 376 IPC had been erroneous andbecause of this error, the matter went to trial before the learnedJudicial Magistrate for the offences under Sections 504 and 506IPC though the entire matter ought to be tried in the Court ofSessions. Section 461 CrPC has been referred to in that regard.Although, for what has been discussed and held hereinbefore,there had been no error in segregation of the charge of the offenceunder Section 376 IPC, yet it need be stated that this line ofsubmissions, questioning the validity of the proceedings beforethe learned Judicial Magistrate, remains baseless and is rathermisplaced. [Para 24 and 24.1][354-F-H; 355-A-B]

1.5 So far as the offences under Sections 504 and 506 IPCare concerned, it cannot be said that the said Judicial Magistratewas not empowered by law to try these offences. Rather, theoffence under Section 504 IPC is triable by any Magistrate. Inthe present case, the alleged threat was to cause death whichrelates to Part II of Section 506 IPC and is triable by a JudicialMagistrate of First Class. It is not the case that the Magistrateconcerned who had tried the matter was in any way lacking inpower and authority to try the offences under Sections 504 and506 IPC. The validity and correctness of the order of segregationof the charge under Section 376 IPC is a matter entirely differentbut until the said order was in operation, the matter had to go tothe trial before the said Magistrate and he was bound to proceedwith the same. Hence, this contention on behalf of the respondentNo. 1-State stands rejected. The accused-respondent No. 2 havinggone through the trial in relation to offences under Sections 504and 506 IPC and having been acquitted, cannot be subjected toanother trial for the same charges on the same facts. Any suchprocess would be in blatant disregard of the settled principleswhich disapprove double jeopardy and are precisely contained inArticle 20(2) of the Constitution of India as also Section 300 ofthe Code of Criminal Procedure, 1973. The protection underclause (2) of Article 20 of the Constitution of India is clear andunambiguous. On the facts and in the circumstances of presentcase, even if respondent No. 2 is acquitted of charges under AB

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ASections 504 and 506, he could be tried by the jurisdictionalSessions Court in respect of alleged offence of rape under Section376 IPC, because this offence could not have been tried by theJudicial Magistrate First Class. However, he cannot be sent totrial again for offences under Sections 504 and 506 IPC in anyevent. On the facts and in the circumstances of this case, theBalleged offence under Section 376 IPC and the other offencesunder Sections 504 and 506 IPC do not fall within the ambit of‘one series of acts so connected together as to form the sametransaction’ for the purpose of trial together in terms of Section220 CrPC. Thus, the learned Sessions Judge, Chamoli had rightlyCdischarged the accused-respondent No. 2 of the offence underSection 376 IPC for want of territorial jurisdiction. [Paras 24.1.1,24.2, 24.3 and 25][355-D-H; 356-A; 357-D-F]

Satvinder Kaur v. State (Govt. of NCT of Delhi) andAnr. (1999) 8 SCC 728 : [1999] 3 Suppl. SCR 348;DSunita Kumari Kashyap v. State of Bihar and Anr. (2011)11 SCC 301 : [2011] 6 SCR 83 – distinguished.

State of Punjab v. Gurmit Singh and Ors. (1996) 2 SCC384 : [1996] 1 SCR 532 – referred to.

Case Law Reference

E

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.903 of 2022.

GFrom the Judgment and Order dated 25.09.2018 of the High Courtof Uttarakhand at Nainital in Criminal Revision No. 42 of 2018.

Abhimanyu Jhamba, Ms. Thonpinao Thangal, Ms. Hatneimawi,Ashish Jhamb, Ms. Hemlata Ranga, Ms. Manveen Sachdeva, Samir AliKhan, Advs. for the Appellant.H

Jatinder Kumar Bhatia, Ashutosh Kumar Sharma, Satyajit A.Desai, Mrs. Anagha S. Desai, Siddharth Gautam, Himanshu Sharma,Advs. for the Respondents.

The Judgment of the Court was delivered by DINESH MAHESHWARI, J.

Leave granted.

2. This appeal is directed against the order dated 25.09.2018 aspassed by the High Court of Uttarakhand at Nainital in Criminal RevisionPetition No. 42 of 2018 whereby, the High Court declined to interferewith the order dated 28.10.2017, as passed by the Sessions Judge, Chamoliin Sessions Trial No. 8 of 2017, discharging the accused-respondent No.2 of the offence under Section 376 of the Indian Penal Code, 1860[2] onthe ground of lack of territorial jurisdiction with liberty to the prosecutionto proceed against the accused in the appropriate Court while alsodirecting transfer of the case in relation to the other offences underSections 504 and 506 IPC to the Court of Judicial Magistrate First Class,Gairsain, District Chamoli.

3. The relevant background aspects and factual matrix of thecase are not of much complications, but the operation of law, with regardto territorial jurisdiction for the offence pertaining to Section 376 IPCand segregation of charges, calls for examination in this appeal withreference to the question as to whether the said offence under Section376 IPC and the other offences under Sections 504 and 506 IPC fallwithin the ambit of ‘one series of acts so connected together as toform the same transaction’ for the purpose of trial together in terms ofSection 220 of the Code of Criminal Procedure, 1973?[3]

4. The question above-mentioned carries the peculiarities of itsown in the present case; and the peculiarities have got confounded withcursory disposal of revision petition by the High Court with an erroneousassumption as if it were a case of challenge to the acquittal of the accused-respondent No. 2. We are rather impelled to observe at the outset andwith respect that, the impugned order of the High Court is a cryptic one,where neither the facts nor the relevant questions of law have gone intoappropriate consideration; and the case of ‘discharge’ because of 2 ‘IPC’, for short.

3 ‘CrPC’, for short.

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2 ‘IPC’, for short.

3 ‘CrPC’, for short.

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Aterritorial jurisdiction has been treated by the High Court as that of‘acquittal’. This aspect of the matter has indeed formed a point ofcontention before us. In the ordinary course, we would have set asidethe order impugned and remanded the matter for reconsideration by theHigh Court but, looking to the subject-matter and the status of partiesinvolved in this protracted litigation since the year 2016 as also looking toBthe fact that, after trial, the accused-respondent No. 2 has been acquittedof the said offences under Sections 504 and 506 IPC, we have consideredit proper to deal with the relevant question on its merits in this appealitself.

5. In the aforesaid backdrop, the relevant factual aspects couldCbe summarised as follows:

5.1. The present case has its genesis in the proposed matrimonialalliance by way of engagement of the appellant and respondent No. 2,both being the residents of Village Dangidhar (Saliyana), Tehsil Gairsain,DDistrict Chamoli, Uttarakhand. Admittedly, they were engaged on13.11.2015 at their village.

5.2. Put in a nutshell, the allegations of the appellant had beenthat after their engagement, she was invited by the respondent No. 2 toDelhi; and was subjected to sexual intercourse by respondent No. 2Eagainst her wishes at Delhi in the month of February 2016. The appellantfurther alleged that the respondent No. 2, thereafter, made a demand ofmoney and refused to marry her when the demand was not met; andlater on, he hurled abuses on her and also threatened to kill. These aspectsand other facts/allegations were specified in a complaint filed by theappellant under Section 156(3) CrPC before the Judicial Magistrate FirstFClass, Gairsain, District Chamoli while complaining of inaction of policeon the complaint made by her mother. The learned Judicial Magistrate,after having gone through the complaint, formed an opinion in his orderdated 21.01.2017 that the matter required investigation and, accordingly,directed the police station concerned to register the First InformationGReport[4] and keep the Court apprised of the investigation.

5.3. The contents of the complaint so made by the appellant,reproduced and reiterated by the learned Judicial Magistrate in his orderdated 21.01.2017, which would specify the nature of accusations and H4 “FIR’, for short.

the place/places of occurrence/occurrences, could be usefully extractedas under: -

“The complaint alongwith affidavit and other documents, is filedby the complainant in this court seeking an order for registering aF.I.R. against accused Narender Sah. As per the complaint, thecomplainant is a resident of Tehsil Gairsain. The complainant –Ms. P d/o Sh. Rajeev Rawat r/o Dangidhar Tehsil Gairsain, Distt.Chamoli was engaged to Narender Sah s/o Sh. Dhan Singh Sah r/o village Dhargair Tehsil Gairsain, Distt Chamoli on 13.11.2015 asper Hindu Rights and Ceremonies at village Dhangidhar (Saliyana).It is thereafter stated that on 21.12.2016, the accused asked thecomplainant to come to Delhi for the purchase of clothes formarriage and threatened her that he would break the engagementin case she would not come. The complainant visited Delhialongwith her cousin Tikka Singh. The accused met the complainantat Kashmiri gate. The complainant’s cousin went to his relativesplace from Kashmiri gate itself while the complainant went withthe accused to his house at Khanpur. Thereafter from 21.02.2016upto 24.02.2016, it is stated that the accused had sexual intercoursewith the complainant against her wishes. It was stated by theaccused that since they are engaged, they are now living ashusband and wife. It is stated that the accused threatened thecomplainant that is she does not do things according to his wishes,he may change the matrimonial alliance. In the series of eventsthe accused also told the complainant to bring Rs. 25lakh fromher mother since the accused requires the same for constructionof a house in New Delhi and that he will marry the complainantonly if she gives him the money. Thereafter the complainant’smother, while referring to the aforesaid discussions filed a complaintat P.S. Gairsain. It is stated that the accused came to the Policestation and filed an affidavit on 01.11.2016 assuring that he willmarry his fiancé Ms. P in December 2016. In the said affidavit, ithas been accepted by the accused Narender Sah that he and Ms.P were engaged on 13.11.2015 and that on account of being busydue to his occupation, the accused would marry the complainantin December 2016. But thereafter he did not marry her and insteadthreatened her to kill her while hurling abuses at her. Thereafterthe mother of the complainant Smt. Shakuntala Devi filed acomplaint against the accused in P.S. Gairsain, Distt. Chamoli on A

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A12.12.2016. Since no steps were taken against the accused bythe P.S. Gairsain, Smt. Shakuntala Devi filed a complaint to thesuperintendent of police, Distt. Chamoli in a complaint letter dated16.12.2016. It is stated that no steps were taken by the policeagainst Narender Sah. Both the parties were also referred forcounselling to women cell Gopeshwar but the counselling has failed.BAs per the complainant the accused is not ready to marry thecomplainant Ms. P and is still demanding Rs. 25 lakh whereas theaccused, on the pretext of marriage has not only done engagementwith Ms. P but also had sexual intercourse with her against herwishes, and yet is not marrying her.”C

5.4. In view of the directions aforesaid, FIR No. 3 of 2017 cameto be registered at Police Station, Gairsain and after investigation, acharge-sheet was submitted in the Court of Judicial Magistrate FirstClass, Gairsain, District Chamoli for offences under Sections 376, 504and 506 IPC; and in view of the involvement of offence under SectionD376 IPC, the case was committed to the Court of Sessions Judge, Chamoli.The order passed by the learned Sessions Judge, Chamoli on the questionof framing charge has given rise to the present dispute.

6. The Sessions Judge, Chamoli, took up the matter in SessionsTrial No. 8 of 2017 and arguments were heard for framing of charge,Ewhere it was, inter alia, contended on behalf of the accused-respondentNo. 2 that the entire incident pertaining to the offence under Section 376IPC, as per the allegation in the FIR as also in the statement of victim,took place at Delhi which was beyond the territorial jurisdiction of theCourt at Chamoli and, therefore, the Court was not competent to try theFsaid offence.

6.1. In the impugned order dated 28.10.2017, the learned SessionsJudge agreed with the contentions so urged on behalf of the accusedand held that the offence under Section 376 IPC, which had takenplace at Delhi, was not a continuing one; and whatever threat wasGallegedly given by the accused to the victim, it did not constitute a kindof offence which could be said to be in the series of same transaction.Therefore, the learned Sessions Judge concluded that the accused wasentitled to be discharged in relation to the offence under Section 376IPC for want of territorial jurisdiction and, in sequel, also found it justand proper to remit the matter to the Court of Judicial Magistrate forH

trial of the remaining offences pertaining to Sections 504 and 506 IPC.The relevant part of the impugned order dated 28.10.2017 reads asunder: - “6. In the light of rival arguments of the parties, I have gone throughthe entire material collected during the investigation. From thematerial collecting during the investigation it is clear that theengagement between the victim and accused person had takenplace within the jurisdiction of District Chamoli but the incident ofphysical relationship or sexual intercourse between the victim andthe accused person as alleged in the F.I.R and in the statementsof victim recorded under Section 161 and 164 of the Cr.P.C. isfound to be at Delhi. It is specifically alleged in the First InformationReport that whatever physical relation was established betweenthe victim and accused person was in the tenanted premises ofaccused at Khanpur, Delhi. The victim has also reiterated thisfact in her statement recorded under Section 164 of the Cr.P.Cthat in the month of February, 2016 accused has called the victimat Delhi to introduce her to his Buwa and accused had come toreceive her at Kashmirigate Bus Station at Delhi from where hetook her to his rented premises and kept her there from 21.02.2016to 24.02.2016. During this period the accused tried to commitrape upon her and when she resisted, he threatened to change thedecision of marriage and then he made physical relation with thevictim against her will. In her statement recorded under Section164 of the Cr.P.C. the victim has also stated that on 23[rd] March,2016 she again went to Delhi on the call of accused and at thattime the accused made physical relationship twice with her consentwhich was given on the pretext of marriage. Therefore, from theevidence collected during the investigation it is clear that the placeof occurrence of the alleged offence under Section 376 of theI.P.C is at Delhi. The offence of rape is not a continuing offenceand whatever threat is alleged to have been given by the accusedto the victim is on phone and is not a kind of offence which can besaid to be in the series of transaction. Therefore, this Court doesnot possess territorial jurisdiction to try the offence against theaccused under Section 376 of the I.P.C.Thus, the accused isliable to be discharged on this account. The rest allegations, whichrelate to Section 504 and 506 of the I.P.C., are not exclusivelytriable by the Court of Sessions for which the case of the accused A

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can be transferred to the competent Court under Section 208 ofthe Cr.P.C for proceeding according to law.

A

ORDER

Accused Narendra Shah is discharged under Section 376 of theI.P.C on the ground of lack of territorial jurisdiction with the libertytoproceed prosecution against the accused in the appropriate Court.

B

The case is transferred to the Court of Judicial Magistrate, First Class, Gairsain, District- Chamoli under Section 208 of the Cr.P.C.as the remaining offences are not exclusively triable by the CourtofSessions for proceeding according to law.

C

Accused is directed to appear before the Judicial Magistrate,FirstClass, Gairsain, District- Chamoli on 22.11.2017 for argumentoncharge.”

D

7. The order aforesaid was challenged by the appellant in the saidCriminal Revision Petition No. 42 of 2018 before the High Court.Unfortunately, the High Court, in its impugned order dated 25.09.2018,chose to decide the matter in the absence of revisionist (i.e., the presentappellant) and, without even taking into consideration the nature of orderEpassed by the Sessions Judge, simply observed, rather rhetorically, thatin case of acquittal, even if two views were possible, the Appellate Courtwould not reverse the finding of acquittal unless the finding was perverse;and that there was no perversity, illegality and jurisdictional error in theorder impugned. Accordingly, the revision petition was dismissed. Theentire of the order passed by the learned Single Judge of the High CourtFreads as under: - “This revision has not been admitted yet.

This criminal revision has been directed against the judgmentand order dated 28.10.2017, passed by the learned Sessions Judgein Session Trial No. 8 of 2017 State vs. Narendra Sah, wherebythe learned Judge acquitted the accused person under section376 IPC on the ground of lack of territorial jurisdiction with theliberty to proceed prosecution against the accused in theappropriate Court.

G

I have perused the impugned judgment and papers on record.

H

It is settled proposition of law that in a case where the accusedhas been acquitted by the trial court and even if two views arepossible, it is not just and proper on the part of the appellate courtto reverse the finding of acquittal recorded by the court belowunless the findings of court below are perverse.

I find no perversity, illegality and jurisdictional error in the orderimpugned.

Accordingly, the revision lacks merit and dismissed.”

8. The aforesaid orders as passed by the High Court and theSessions Judge are in challenge in the present appeal. Before advertingto the stand of the respective parties and the rival contentions, anotherrelevant fact could be taken note of at this juncture, which relates to thetrial for the aforesaid offences under Sections 504 and 506 IPC.

9. As noticed, in the impugned order dated 28.10.2017, the learnedSessions Judge, while discharging the accused-respondent No. 2 of theoffence under Section 376 IPC on the ground of lack of territorialjurisdiction, had transferred the matter to the Court of Judicial MagistrateFirst Class, Gairsain, District Chamoli for trial of the respondent No. 2 inrelation to the remaining offences under Sections 504 and 506 IPC. Thesaid matter was taken up for trial by the learned Judicial Magistrate inCriminal Case No. 137 of 2017. In this trial, the appellant and otherwitnesses were indeed examined by the prosecution and ultimately, thecase was decided by the learned Judicial Magistrate by his judgmentand order dated 01.05.2019. A perusal of the said judgment and orderdated 01.05.2019 makes out that the learned Judicial Magistrate, afterappreciation of evidence, found that the prosecution witnesses had failedto establish the fact that the accused-respondent No. 2 hurled abuses orgave death threats to the appellant and her family. The said finding ofthe learned Judicial Magistrate, leading to acquittal of the accused-respondent No. 2 of the offences under Sections 504 and 506 IPC, readsas under: -

“None of the prosecution witnesses in their testimonies havestated that the Accused Narender Singh Shah hurled abuses orgave death threats to the Petitioner as well as her family. Thetestimonies led on record for evidence by the Prosecution againstthe Accused and the documentary evidence do not prove thecharges against the Accused under Section 504 and 506 of the A

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AIPC. This is how the Prosecution was unable to prove its caseagainst the Accused. Even though the Prosecution led thetestimonies of PW1 to PW6 on record, they were unable to provethe case against the Accused that he hurled abuses and gavedeath threats to the Complainant. Therefore, the Accused NarenderShah is acquitted of the offences under Section 504, 506 of theBIPC.”

A

10. Having taken note of the material facts and relevant orderspertaining to this case, we may now summarise the respectivecontentions, where the submission made on behalf of the appellant inchallenge to the order dated 25.09.2018, as passed by the High CourtCas also the order dated 28.10.2017, as passed by the Sessions Judgehave been duly supported in the submissions made on behalf of therespondent No. 1-State; and duly countered on behalf of the accused-respondent No. 2.

11. Learned counsel for the appellant has strenuously argued thatDin this case, the accused-respondent No. 2 has wrongly been dischargedof the offence under Section 376 IPC without the learned Sessions Judgeappreciating that the offences forming the part of the same transactioncould not have been segregated on the ground of want of territorialjurisdiction. The learned counsel has particularly referred to SectionsE178 and 179 with Section 220 CrPC and has emphasized that in thiscase, the offences pertaining to Sections 376, 504 and 506 IPC formedthe part of same transaction and their segregation, as ordered by thelearned Sessions Judge in the order dated 28.10.2017, has resulted inmiscarriage of justice. In support of these contentions, the learned counselhas relied upon the decision in the case of Satvinder Kaur v. StateF(Govt. of NCT of Delhi) and Anr.: (1999) 8 SCC 728.

11.1. Learned counsel for the appellant has submitted, withelaborate reference to contents of the complaint as stated in JudicialMagistrate’s order dated 21.01.2017 and to the statements made bythe appellant, including that in the trial of the respondent No. 2 for theGoffences under Sections 504 and 506 IPC, that the appellant hasconsistently maintained her stand that she was subjected to forciblesexual intercourse by the respondent No. 2 on the threat of ending thematrimonial alliance. Learned counsel would argue that in view of thisconsistent stand of the appellant, the respondent No. 2 ought to haveHbeen put to trial for the offence under Section 376 IPC, which could not have been segregated from other offences. The learned counselhas also referred to Section 90 IPC to submit that the consent given bythe appellant for having physical relationship under fear ormisconception could not have been treated as a valid consent; andeven as per the presumption provided by Section 114-A of the EvidenceAct, 1872, the respondent No. 2 ought to face trial for the offenceunder Section 376 IPC. A decision of this Court in the case of State ofPunjab v. Gurmit Singh and Ors.: (1996) 2 SCC 384 has also beenreferred as regards the value and worth attached by the Courts to theassertions of a victim of sexual offence.

11.2. Learned counsel for the appellant has further argued thatthe trial in Case No. 137 of 2017 for offences under Sections 504 and506 IPC, where the accused-respondent No. 2 was acquitted by theorder dated 01.05.2019, deserves to be quashed because this trial hastaken place before the Judicial Magistrate only because of segregationof the said offences with the offence under Section 376 IPC, which istriable only by the Court of Sessions. The submission has been that, bysetting aside the order of segregation, the entire matter deserves to beput to trial for the offence under Section 376 IPC along with the offencesunder Sections 504 and 506 IPC.

11.3. It has also been argued on behalf of the appellant that whilethe learned Sessions Judge had erroneously discharged the accused-respondent No. 2 of the offence under Section 376 IPC on the ground oflack of territorial jurisdiction, the High Court summarily dismissed thepetition without giving any reason as to its conclusion. It has furtherbeen pointed out that the High Court has wrongly recorded as if theaccused-respondent No. 2 was acquitted of the offence under Section376 IPC without appreciating that it had not been a case of acquittal interms of Section 232 CrPC but had been of discharge in terms of Section227 CrPC.

12. While supporting the submissions made on behalf of theappellant, learned counsel for the respondent No. 1-State has submittedthat the Sessions Judge, Chamoli was indeed competent to try theaccused-respondent No.2 for the offence under Section 376 IPC alongwith the offences under Sections 504 and 506 IPC, for the said offencesformed the series of same transaction. Learned counsel for the Statehas particularly referred to Sections 178(d), 179, 180, 184 read withSections 220(1) and 220(3) CrPC.

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A12.1. Learned counsel for the State has further contended thatthe trial conducted by the Judicial Magistrate First Class, Gairsain, DistrictChamoli in relation to the charges under Sections 504 and 506 IPC aftersegregation of the charge under Section 376 IPC stands vitiated in termsof Clause (l) of Section 461 CrPC. Hence, according to the learnedcounsel, de novo trial of the accused under Sections 376, 504 and 506BIPC is required to be conducted by the Court of Sessions Judge, Chamoli.

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12.2. Learned counsel for the State has also referred to a coupleof decisions of this Court to submit that in the offence of rape, the solitaryevidence of prosecutrix, if it inspires confidence, is sufficient to hold theaccused guilty without any need of corroboration. The learned counselwould submit that in the present case, where the prosecutrix hasconsistently maintained in the FIR as also in the statements under Sections161 and 164 CrPC, that she was forced by the respondent No. 2 toestablish physical relations under the threat of cancelling the marriage,the offence under Section 376 IPC is clearly made out.

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13. Per contra, learned counsel for the accused-respondent No.2 has argued that in terms of Section 218 CrPC, the learned SessionsJudge, Chamoli has rightly ordered for separation of charge in relation toSection 376 CrPC and has rightly not proceeded with the same for thealleged occurrence having taken place at Delhi.

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13.1. Learned counsel for the accused-respondent No. 2 wouldsubmit that in terms of Section 218 CrPC, separate charges are requiredto the framed for separate offences and they are to be tried separately.It has been contended that in the present case, the learned SessionsJudge rightly took into account the fact that though the appellant and theFrespondent No. 2 got engaged at their native place in District Chamoli,Uttarakhand but, the alleged incident of physical relationship or sexualintercourse occurred only at Delhi in the tenanted premises of therespondent No. 2. Thus, according to the learned counsel, the offenceunder Section 376 IPC had rightly been segregated and the respondentNo. 2 had rightly been discharged on account of lack of territorialGjurisdiction of the Courts at Chamoli in relation to the said offence. It hasalso been argued that even in relation to Sections 178 and 179 CrPC, theevidence collected during investigation made it clear that the allegedoffence under Section 376 IPC had taken place only at Delhi; that theoffence of rape is not a continuing offence; and that the alleged threatHgiven by the respondent No. 2 to the appellant on phone had not been a kind of offence which could be said to be of a series of acts forming thesame transaction. The learned counsel has referred to the case of SunitaKumari Kashyap v. State of Bihar and Anr.: (2011) 11 SCC 301and has submitted that looking to the nature of accusations, the matterrelating to the offence under Section 376 IPC had rightly been segregatedin the present case.

13.2. Learned counsel has further submitted that the accused-respondent No. 2 has been duly acquitted of the charges pertaining toSections 504 and 506 IPC by the learned Judicial Magistrate with aclear finding that the appellant had failed to furnish any material evidencein relation to those allegations. It is submitted that the judgment of acquittaldated 01.05.2019 as passed by the learned Judicial Magistrate has attainedfinality and in that view of the matter too, the alleged offence underSection 376 IPC cannot hold ground any further.

13.3. A long length of arguments on behalf of the respondent No.2 has also been to the effect that the FIR by the appellant is based onvague and concocted story and has been put forward by the appellantonly to harass and arm-twist the respondent No. 2 because of non-solemnization of the proposed marriage. Learned counsel would submitthat the respondent No. 2 is being harassed by the appellant for lastmore than 5 years; that there had been an inordinate delay of 1 year inregistration of FIR from the alleged date of incident at Delhi on21.02.2016; that criminal machinery cannot be used to further the objectof harassment and vengeance; and that the life and liberty of therespondent No. 2 are under severe risk at the hand of the appellantbecause of baseless allegations.

13.4. As regards the contents of the impugned order of High Court,it has been argued on behalf of the respondent No. 2 that the use ofexpression ‘acquittal’ in place of the expression ‘discharge’ had onlybeen a matter of human error, though the order under challenge wasduly examined by the High Court. It has also been submitted that, infact, such an error occurred for there being no assistance from the sideof the appellant, who was the revisionist before the High Court. It issubmitted that, in any case, such an error does not take away thesubstance of the matter that the High Court found no reason to interferewith the just and proper order passed by the learned Sessions Judge indischarging the appellant of the offence under Section 376 IPC for wantof territorial jurisdiction.

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A14. We have given anxious consideration to the rival submissionsand have examined the record with reference to the law applicable.

15. As noticed, the principal question calling for determination inthe present case is as to whether the allegations against the accused-respondent No. 2, of committing rape, hurling abuses and extendingBthreats, respectively pertaining to offences under Sections 376, 504 and506 IPC, could be said to be ‘one series of acts so connected togetheras to form the same transaction’ for the purpose of trial together interms of Section 220 CrPC?

16. Before dealing with the principal and material question involvedCin this case, it appears just and appropriate to comment on two peripheralaspects, which need not detain us much longer.

16.1. The first of these marginal aspects is about the nature oforder passed by the High Court in this case. Though we have taken noteof the rival contentions in that regard but, it is rather unnecessary to dealDwith them elaborately. It is not a matter of much debate that the HighCourt has dealt with the revision petition before it in a wholly cursorymanner and with erroneous assumption as if it were a case of challengeto the order of acquittal. However, as observed at the outset, rather thanadopting the course of remanding the matter for reconsideration by theHigh Court, we have considered it just and proper to deal with the relevantEquestion, relating to the validity of the order dated 28.10.2017 as passedby the learned Sessions Judge, on its merits in this appeal itself. Therefore,without any further comments on this part of rival contentions, we wouldleave the order passed by the High Court at that only.

16.2. Another aspect, which too is peripheral to the materialFquestion involved in this matter, is that of rival stands on the correctnessor otherwise of the allegations of rape, as levelled against the respondentNo. 2. As noticed, a long deal of arguments on behalf of the appellantpertains to the merits of such accusations and as to how the matterrelating to consent ought to be dealt with and as to the value and worthGattached by the Courts to the statements of a victim of sexual offence.Learned counsel for the State has also joined this line of arguments andhas submitted that the solitary evidence of prosecutrix could be sufficientto hold the accused guilty in the offence of rape. In these contentions,the alleged consistent stand of the appellant has also been referred. Percontra, it has been urged on behalf of the respondent No. 2 that theH

allegations of rape are of a concocted story, which has been put forwardonly for the purpose of continuing with his harassment. It has also beencontended that the FIR was lodged after an inordinate delay. In ourview, these and correlated contentions concerning the merits of theaccusations of rape need neither any adjudication nor even any commentin this appeal. The limited question to be considered in this appeal isconcerning validity of the order passed by the learned Sessions Judge,segregating the offences and discharging the accused-respondent No. 2of the offence under Section 376 IPC for want of territorial jurisdiction.At the present stage, it is too premature to address the questionspertaining to the merits of these accusations. The relevant aspect at thepresent stage is that after investigation, charge-sheet was indeed filedfor prosecution of the respondent No. 2 for the offences under Sections376, 504 and 506 IPC but, the prosecution in relation to the offenceunder Section 376 IPC did not proceed at Chamoli for the view taken bythe learned Sessions Judge on territorial jurisdiction. Therefore, this partof the contentions, relating to the merits of accusations of rape, is alsoleft at that only and without any further comment.

17. Reverting now to the principal question involved in the matter,we need to take into comprehension the relevant and referred statutoryprovisions, as contained in Sections 177, 178, 179, 180, 184, 218 and 220of the Code of Criminal Procedure, 1973, which read as under: - “177. Ordinary place of inquiry and trial. - Every offenceshall ordinarily be inquired into and tried by a Court within whoselocal jurisdiction it was committed.

178. Place of inquiry or trial. - (a) When it is uncertain in whichof several local areas an offence was committed, or (b) where an offence is committed partly in one local area andpartly in another, or

(c) where an offence is a continuing one, and continues to becommitted in more local areas than one, or (d) where it consists of several acts done in different local areas,it may be inquired into or tried by a Court having jurisdiction overany of such local areas.

179. Offence triable where act is done or consequenceensues. - When an act is an offence by reason of anything which A

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has been done and of a consequence which has ensued, the offencemay be inquired into or tried by a Court within whose localjurisdiction such thing has been done or such consequence hasensued.

180. Place of trial where act is an offence by reason ofrelation to other offence.- When an act is an offence by reasonof its relation to any other act which is also an offence or whichwould be an offence if the doer were capable of committing anoffence, the first-mentioned offence may be inquired into or triedby a Court within whose local jurisdiction either act was done.

184. Place of trial for offences triable together. - Where- (a) the offences committed by any person are such that he maybe charged with, and tried at one trial for, each such offence byvirtue of the provisions of section 219, section 220 or section 221, or (b) the offence or offences committed by several persons aresuch that they may be charged with and tried together by virtueof the provisions of section 223, the offences may be inquired into or tried by any Court competentto inquire into or try any of the offences.

218. Separate charges for distinct offences. -(1) For everydistinct offence of which any person is accused there shall be aseparate charge and every such charge shall be tried separately:

Provided that where the accused person, by an application inwriting, so desires and the Magistrate is of opinion that such personis not likely to be prejudiced thereby the Magistrate may trytogether all or any number of the charges framed against suchperson.

(2) Nothing in sub-section (1) shall affect the operation of theprovisions of sections 219, 220, 221 and 223.

220. Trial for more than one offence. - (1) If, in one series ofacts so connected together as to form the same transaction, moreoffences than one are committed by the same person, he may becharged with, and tried at one trial for, every such offence.

(2) When a person charged with one or more offences of criminalbreach of trust or dishonest misappropriation of property asprovided in sub-section (2) of section 212 or in sub-section (1) ofsection 219, is accused of committing, for the purpose of facilitatingor concealing the commission of that offence or those offences,one or more offences of falsification of accounts, he may becharged with, and tried at one trial for, every such offence.

(3) If the acts alleged constitute an offence falling within two ormore separate definitions of any law in force for the time beingby which offences are defined or punished, the person accusedof them may be charged with, and tried at one trial for, each ofsuch offences.

(4) If several acts, of which one or more than one would by itselfor themselves constitute an offence, constitute when combined adifferent offence, the person accused of them may be chargedwith, and tried at one trial for the offence constituted by such actswhen combined, and for any offence constituted by any one, ormore, or such acts.

(5) Nothing contained in this section shall affect section 71 of theIndian Penal Code (45 of 1860).”

18. At this juncture, we may also take note of the decisions citedby the learned counsel for the contesting parties in support of theirrespective contentions pertaining to the principal question involved in thematter.

18.1. In the case of Satvinder Kaur (supra), the facts in briefwere that the appellant was thrown out of her matrimonial home in Patiala,Punjab. She lodged a complaint at Police Station Kotwali, Patiala on theallegations of torture and dowry demand against the husband and in-laws. Thereafter, she came to Delhi to live with her parents. Within thattime also, threats by her husband continued. The appellant filed a complaintwith the Women’s Cell, Delhi and subsequently lodged an FIR relatingto the offences under Sections 406 and 498-A IPC at Police StationPaschim Vihar, New Delhi. A question was raised by the accused asregards territorial jurisdiction of the Station House Officer, Police StationPaschim Vihar, New Delhi to investigate the FIR as the dowry itemswere entrusted at Patiala and the alleged cause of action arose at Patiala.To this, the High Court took the view that the said Investigating Officer A

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Aat New Delhi had no territorial jurisdiction. This view of the High Courtwas, however, not approved by this Court while observing, inter alia, asunder: - “15. Hence, in the present case, the High Court committed agrave error in accepting the contention of the respondent that theBinvestigating officer had no jurisdiction to investigate the matterson the alleged ground that no part of the offence was committedwithin the territorial jurisdiction of the police station at Delhi. Theappreciation of the evidence is the function of the courts whenseized of the matter. At the stage of investigation, the materialcollected by an investigating officer cannot be judicially scrutinizedCfor arriving at a conclusion that the police station officer of aparticular police station would not have territorial jurisdiction. Inany case, it has to be stated that in view of Section 178(c) of theCriminal Procedure Code, when it is uncertain in which of theseveral local areas an offence was committed, or where it consistsDof several acts done in different local areas, the said offence canbe enquired into or tried by a court having jurisdiction over any ofsuch local areas. Therefore, to say at the stage of investigationthat the SHO, Police Station Paschim Vihar, New Delhi was nothaving territorial jurisdiction, is on the face of it, illegal anderroneous. That apart, Section 156(2) contains an embargo thatEno proceeding of a police officer shall be challenged on the groundthat he has no territorial power to investigate. The High Court hascompletely overlooked the said embargo when it entertained thepetition of Respondent 2 on the ground of want of territorialjurisdiction.”F

18.2. In the case of Sunita Kumari Kashyap (supra), theappellant-wife lodged an FIR for offences under Sections 498-A, 406read with Section 34 IPC and Sections 3 and 4 of the Dowry ProhibitionAct, 1961 at Gaya while alleging that she suffered ill-treatment and crueltyat the hands of her husband and in-laws at Ranchi; that she was forciblyGbrought to her parental home at Gaya; that after she gave birth to a girlchild, she was blamed for having brought an additional burden; and thatafter some time, her husband came out with a new demand that unlessher father gave him the house at Gaya, she would not be taken back toher matrimonial home at Ranchi. On the similar question of jurisdiction,the High Court held that the proceedings at Gaya were not maintainable.H

However, this Court did not approve of the order so passed by the HighCourt and in that context, after referring to Sections 177, 178 and 179CrPC, this Court observed and explained as under: - “8…. From the above provisions, it is clear that the normal rule isthat the offence shall ordinarily be inquired into and tried by acourt within whose local jurisdiction it was committed. However,when it is uncertain in which of several local areas an offencewas committed or where an offence is committed partly in onelocal area and partly in another or where an offence is a continuingone, and continues to be committed in more than one local areaand takes place in different local areas as per Section 178, thecourt having jurisdiction over any of such local areas is competentto inquire into and try the offence. Section 179 makes it clear thatif anything happened as a consequence of the offence, the samemay be inquired into or tried by a court within whose localjurisdiction such thing has been done or such consequence hasensued.”

18.2.1. While applying the principles to the facts of the case, thisCourt held that the offence of ill-treatment and humiliation meted out tothe appellant was a continuing one; the same was committed in morethan one local areas; and one of the local areas being Gaya, the learnedMagistrate at Gaya was having jurisdiction to proceed with the criminalcase instituted therein. This Court observed and held as under: - “18. …In view of the specific assertion by the appellant wifeabout the ill-treatment and cruelty at the hands of the husbandand his relatives at Ranchi and of the fact that because of theiraction, she was taken to her parental home at Gaya by her husbandwith a threat of dire consequences for not fulfilling their demandof dowry, we hold that in view of Sections 178 and 179 of theCode, the offence in this case was a continuing one having beencommitted in more local areas and one of the local areas beingGaya, the learned Magistrate at Gaya has jurisdiction to proceedwith the criminal case instituted therein. In other words, as theoffence was a continuing one and the episode at Gaya was only aconsequence of continuing offence of harassment and ill-treatmentmeted out to the complainant, clause (c) of Section 178 isattracted...”

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A19. A few salient features of both the decisions aforesaid inSatvinder Kaur and Sunita Kumari Kashyap could be usefullyrecounted.

19.1. As noticed, in the case of Satvinder Kaur (supra), thequestion of jurisdiction was raised at the investigation stage. In that context,Bthis Court pointed out that at the stage of investigation, the materialcollected by the investigating officer cannot be judicially scrutinized forarriving at a conclusion that the particular officer or a particular policestation would not have territorial jurisdiction. This Court also referred toclause (c) of Section 178 CrPC, as regards jurisdiction in case ofCuncertainty of the area/areas of commission of offence. In continuity,this Court pointed out, with reference to Section 156(2) CrPC, that noproceeding of a police officer is to be challenged on the ground of powerto investigate. Noticeable it is that in the said case, the appellant hadmade allegations of torture and dowry demand at Patiala and it was alsoalleged that after her coming to Delhi to live with her parents, the threatsDby her husband continued. The complaint had essentially been of theoffences under Sections 406 and 498-A IPC, whether at Patiala or atDelhi. In the case of Sunita Kumari Kashyap (supra), this Court hassummarised the rules discernible from a combined reading of Sections177, 178 and 179 CrPC but, in the said case, again, the complaint was ofEthe offences pertaining to Sections 406 and 498-A IPC as also Sections3 and 4 of the Dowry Prohibition Act, 1961, essentially relating to ill-treatment, cruelty and demands by the husband and his relatives; and asper the factual matrix, such acts took place at Ranchi and continued atGaya. Hence, this Court found the said case to be that of continuingoffence.F

19.2. Apart from the fact that the case of Satvinder Kaur (supra)was that of raising the question of jurisdiction at the threshold stage ofinvestigation (which was not approved by this Court), the fundamentalfact remains that in each of these cases, the principal offences, of SectionsG406 and 498-A IPC, were said to have been committed at the matrimonialhome of the lady and were allegedly continued even when the lady hadshifted to her parental home at a different station. In such a situation,clause (c) of Section 178 CrPC came in operation, dealing with theeventuality when ‘an offence is a continuing one and continues tobe committed in more local areas than one’.H

19.2. The provisions of Section 178 CrPC essentially deal with asingular offence which is either partly committed in one area and partlyin another; or continues to be committed in more local areas than one; orit consists of several acts done in different local areas; or when it isuncertain of which of the several areas it has been committed. Thisprovision primarily operates in relation to one and the same offence,which gets bifurcated into, or is spread over, different local areas becauseof continuing acts or different acts, one after another, like the offencesof Section 498-A or Section 406 IPC in the referred cases. Then, in theeventuality of an act being an offence for anything which has been doneand consequence that has ensued, as per Section 179 CrPC, the offencecould be tried by a Court within whose jurisdiction the act has been doneor where the consequence of such an act has ensued. Further, as perSection 180 CrPC, when an act is an offence because of its relation toany other act which is also an offence, the former could be tried by aCourt within whose local jurisdiction either of the act is done. Theseprovisions provide exception to the normal rule envisaged by Section177 CrPC that every offence shall ordinarily be inquired into and triedby a Court within whose local jurisdiction it was committed.

19.3. Both the decisions aforesaid, though dealing with theoperation of Section 178 CrPC, do not directly render assistance in thepresent case. The fact situation of the present case is different. It is notthe case of an offence comprising of bifurcated or segmented or continuingacts.

20. The fact situation of the present case and the complaint asmade by the appellant is of the allegations of different offences, ofdifferent nature and at different places of occurrence, though said tohave been committed by the same person, i.e., respondent No. 2 andagainst the same person, i.e., the appellant and having their genesis inthe proposed matrimonial alliance, which did not materialise. Theallegations, obviously, consist of offences of distinct nature inasmuch asone set of allegations is of the offence of rape at Delhi (Section 376IPC) and the other set of allegations is of hurling abuses and extendingthreat on phone calls received by the appellant at her village in DistrictChamoli (Sections 504 and 506 IPC). These being different offences,the question to be examined with reference to Section 220 CrPC readwith Section 184 CrPC is as to whether the alleged offences are suchthat the respondent No. 2 could be charged with and tried at one trial for A

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Aeach of them. In other words, as noticed, the question in this case is asto whether the acts complained of could be said to be ‘one series ofacts so connected together as to form the same transaction’ for thepurpose of trial together. For dealing with the question in reference tothe peculiar facts of the present case, the principles stated in a fewother decisions may be usefully noticed.B

20.1. In the case of Mohan Baitha and Ors. v. State of Biharand Anr.:(2001) 4 SCC 350, this Court observed that the expression‘same transaction’, from its very nature, was incapable of an exactdefinition and it was not possible to enunciate any comprehensive formulaof universal application for the purpose of determining whether two orCmore acts constitute the same transaction. However, this Court indicateda few factors, which would be relevant to decide this question in a givenset of facts. In that case, on the complaint of the father of deceased,FIR was lodged for offences under Sections 304-B/34/406 IPC at PoliceStation Nath Nagar in the District of Bhagalpur, Bihar. Police reportDwas filed on 03.04.1999 after completion of investigation. However, theaccused approached the High Court, seeking direction to the Magistratenot to proceed with the matter on the grounds of lack of territorialjurisdiction, as the offence under Section 304-B IPC had taken place atJahanaganj in the State of Uttar Pradesh and the Court at Bhagalpurwas lacking in territorial jurisdiction to try the same. The High CourtEdismissed the petition of the accused. In further appeal, this Court alsoobserved that the acts formed parts of the same transaction, which cameunder the ambit of Section 220 CrPC; and directed the Magistrate atBhagalpur to proceed with the matter expeditiously. This Court, whileexpounding on Sections 177 and 220 CrPC, observed and laid down asunder: -F

“4.......Section 177 of the Code of Criminal Procedure on whichMr Mishra relies, uses the expression “ordinarily”. The use of theword “ordinarily” indicates that the provision is a general one andmust be read subject to the special provisions contained in theCriminal Procedure Code. That apart, this Court has taken theGview that the exceptions implied by the word “ordinarily” neednot be limited to those specially provided for by the law andexceptions may be provided by law on considerations ofconvenience or may be implied from other provisions of lawpermitting joint trial of offences by the same court....... It may beHnoticed that under Section 220 of the Code of Criminal Procedure,

offences more than one committed by the same persons could betried at one trial, if they can be held to be in one series of acts, soas to form the same transaction. The expression “sametransaction” from its very nature is incapable of an exact definition.It is not intended to be interpreted in any artificial or technicalsense. Common sense and the ordinary use of language mustdecide whether on the facts of a particular case, it can be held tobe in one transaction. It is not possible to enunciate anycomprehensive formula of universal application for the purposeof determining whether two or more acts constitute the sametransaction. But the circumstances of a given case indicatingproximity of time, unity or proximity of place, continuity of actionand community of purpose or design are the factors for decidingwhether certain acts form parts of the same transaction or not.Therefore a series of acts whether are so connected together asto form the same transaction is purely a question of fact to bedecided on the aforesaid criteria.”

20.2. The said decision in Mohan Baitha (supra) has further beenreferred to and relied upon by this Court in the case of Anju Chaudharyv. State of Uttar Pradesh and Anr.:(2013) 6 SCC 384 while indicatingthe tests to be applied for determining the question as to whether two ormore acts constitute the same transaction. This Court observed andexplained as under: - “43. It is true that law recognises common trial or a common FIRbeing registered for one series of acts so connected together asto form the same transaction as contemplated under Section 220of the Code. There cannot be any straitjacket formula, but thisquestion has to be answered on the facts of each case. This Courtin Mohan Baitha v. State of Bihar (SCC pp. 354-55, para 4)held that the expression “same transaction” from its very natureis incapable of exact definition. It is not intended to be interpretedin any artificial or technical sense. Common sense in the ordinaryuse of language must decide whether or not in the very facts of acase, it can be held to be one transaction.

44. It is not possible to enunciate any formula of universalapplication for the purpose of determining whether two or moreacts constitute the same transaction. Such things are to be gathered AB

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Afrom the circumstances of a given case indicating proximity oftime, unity or proximity of place, continuity of action, commonalityof purpose or design.Where two incidents are of different timeswith involvement of different persons, there is no commonalityand the purpose thereof different and they emerge from differentcircumstances, it will not be possible for the court to take a viewBthat they form part of the same transaction and therefore, therecould be a common FIR or subsequent FIR could not be permittedto be registered or there could be common trial.

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45. Similarly, for several offences to be part of the sametransaction, the test which has to be applied is whether they areCso related to one another in point of purpose or of cause andeffect, or as principal and subsidiary, so as to result in onecontinuous action. Thus, where there is a commonality of purposeor design, where there is a continuity of action, then all thosepersons involved can be accused of the same or different offencesD“committed in the course of the same transaction”.”

20.3. Thus, in the aforesaid decisions in Mohan Baitha and AnjuChaudhary, this Court has underscored that the expression ‘sametransaction’ seems to be having vague underpinnings; and this CourtEhas also pointed out that no formula of universal application could beenunciated for determining as to whether two or more acts constitutethe same transaction. However, even while pointing out that the questionas to whether a series of acts are so connected together as to form thesame transaction is purely a question of fact, this Court has indicated theFcore elements like proximity of time, unity or proximity of place, continuityof action and community of purpose or design, which are of relevantconsiderations and when these factors are applied to common senseand ordinary use of language, the vexed question of ‘same transaction’could be reasonably determined.

G21. Keeping the aforesaid principles in view, we may examine asto whether the series of acts as alleged in the present case could be saidto be so connected together as to form the same transaction. This is apure question of fact and has been decided by the learned SessionsJudge against the appellant essentially on the considerations that theplace of occurrence of alleged offence of rape was at Delhi; the offenceHof rape was not a continuing offence; and alleged threats given by the respondent No. 2 to the appellant on phone were not constituting suchoffences as to form a series of acts with the first-mentioned offence ofrape. We have no hesitation in endorsing the views of the learned SessionsJudge on the facts of the present case.

22. In the present case, according to the appellant, her engagementwith 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, albeitreluctantly and on the alleged threat of the accused-respondent No. 2 tobreak the engagement; from 21.02.2016 to 24.02.2016, the accused-respondent No. 2 allegedly had had sexual intercourse with the appellantagainst her wishes and on the threat of dropping the matrimonial alliance;the accused later on allegedly asked her to bring Rs. 25 lakhs forconstruction of house and he would marry only upon receiving the money;the appellant’s mother filed a complaint at Police Station Gairsain wherethe accused-respondent No. 2 allegedly filed an affidavit on 01.11.2016assuring to marry the appellant in the month of December, 2016; however,he did not marry the appellant and instead, hurled abuses and threatenedto kill her. As per the statement recorded by the appellant under Section164 CrPC, she had also visited Delhi on 23.03.2016 on the asking of theaccused-respondent No.2 and at that time, the accused made physicalrelationship twice with her consent, which was given on the pretext ofmarriage.

22.1. A close look at the alleged events/acts bring to fore thebasic feature that on 13.11.2015, the appellant and the respondent No. 2were engaged for matrimonial alliance at their village Dangidhar, TehsilGairsain, District Chamoli but, the proposal of marriage did not materialise.However, the alleged acts of sexual relationship took place at Delhi inthe months of February and March, 2016. The other alleged acts hadbeen of the respondent No. 2 hurling abuses and extending threats in oraround the month of November, 2016, which the appellant received overtelephone at her village. The acts in question were neither proximate intime nor proximate in place; they were not of continuity either. Significantly,while the appellant had alleged that she submitted to the sexual actsbecause of the threat by the respondent No.2 to snap the proposedalliance but it had not been her case that the respondent No. 2 attemptedto coerce her into the same physical relationship while hurling abuses orthreatening to kill at the later part of time. Thus, it is difficult to find A

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Acontinuity of actions and community of purpose or design in two differentacts leading to two different set of offences, i.e., one under Section 376IPC and the other under Sections 504/506 IPC. Putting it differently, sofar as the act leading to the offence of rape under Section 376 IPC isconcerned, even as per the allegations of the appellant, that particularact was a completed one and the original design of subjecting the appellantBto physical relations was accomplished at Delhi in the months of Februaryand March, 2016. As noticed, there is no allegation of such an activityhaving continued later or having taken place at Chamoli or even anythreat having been extended to the appellant to again submit to such anactivity. Viewed from this angle too, the completed act concerning oneCoffence (Section 376 IPC) could not have been connected with the otheracts leading to other offences.

22.2. From whatever angle we examine the matter, in the givenset of facts, it is difficult to sew the alleged acts together so as to formthe same transaction. To put it in a simple idiom, the two alleged set ofDacts, one of sexual exploitation, leading to the offence of rape (Section376 IPC) and another of hurling abuses and threats, leading to the offencesof insult and intimidation (Sections 504/506 IPC), are just like chalk andcheese; they cannot be connected together so as to form the sametransaction on the facts of this case.

E23. For what has been discussed hereinabove, the view as takenby the learned Sessions Judge commends to us that on the facts of thiscase, the offence under Section 376 IPC as allegedly committed at Delhi,being different and distinct than the other offences and being not ofsame transaction, could not have been tried by the Courts at Chamoli.Therefore, the order passed by the learned Sessions Judge calls for noFinterference.

24. Another aspect of the matter pertains to the impact, implicationand consequences of the judgment and order dated 01.05.2019 as passedby the Judicial Magistrate First Class, Gairsain, District Chamoli inCriminal Case No. 137 of 2017, whereby the accused-respondent No. 2Ghas been acquitted of the offences under Sections 504 and 506 IPC, asalso the validity of such proceedings before the learned JudicialMagistrate.

24.1. It has been suggested on behalf of the respondent No. 1-State that the segregation of charge of the offence under Section 376HIPC had been erroneous and because of this error, the matter went to trial before the learned Judicial Magistrate for the offences under Sections504 and 506 IPC though the entire matter ought to be tried in the Courtof Sessions. Section 461 CrPC has been referred to in that regard.Although, for what has been discussed and held hereinbefore, there hadbeen no error in segregation of the charge of the offence under Section376 IPC, yet it need be stated that this line of submissions, questioningthe validity of the proceedings before the learned Judicial Magistrate,remains baseless and is rather misplaced. Section 461 CrPC with itsrelied upon clause (l) reads as under: - “461. Irregularities which vitiate proceedings. - If anyMagistrate, not being empowered by law in this behalf, does anyof the following things, namely: -

….…. ….

(l) tries an offender;

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his proceedings shall be void.”

24.1.1. So far as the offences under Sections 504 and 506 IPCare concerned, it cannot be said that the said Judicial Magistrate wasnot empowered by law to try these offences. Rather, the offence underSection 504 IPC is triable by any Magistrate. In the present case, thealleged threat was to cause death which relates to Part II of Section 506IPC and is triable by a Judicial Magistrate of First Class. It is not thecase that the Magistrate concerned who had tried the matter was in anyway lacking in power and authority to try the offences under Sections504 and 506 IPC. The validity and correctness of the order of segregationof the charge under Section 376 IPC is a matter entirely different butuntil the said order was in operation, the matter had to go to the trialbefore the said Magistrate and he was bound to proceed with the same.Hence, this contention on behalf of the respondent No. 1-State standsrejected.

24.2. We may also observe that the accused-respondent No. 2having gone through the trial in relation to offences under Sections 504and 506 IPC and having been acquitted, cannot be subjected to anothertrial for the same charges on the same facts. Any such process wouldbe in blatant disregard of the settled principles which disapprove doublejeopardy and are precisely contained in Article 20(2) of the Constitution A

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Aof India as also Section 300 of the Code of Criminal Procedure, 1973.The protection under clause (2) of Article 20 of the Constitution of Indiais clear and unambiguous in the following terms: - “20. Protection in respect of conviction for offences. -

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24.2.1. Section 300 of the Code of Criminal Procedure, 1973 readsCas under: - “300. Person once convicted or acquitted not to be triedfor same offence. -

(1) A person who has once been tried by a Court of competentjurisdiction for an offence and convicted or acquitted of suchDoffence shall, while such conviction or acquittal remains in force,not be liable to be tried again for the same offence, nor on thesame facts for any other offence for which a different chargefrom the one made against him might have been made under sub-section (1) of section 221, or for which he might have beenEconvicted under sub-section (2) thereof.

(2) A person acquitted or convicted of any offence may beafterwards tried, with the consent of the State Government, forany distinct offence for which a separate charge might have beenmade against him at the former trial under sub-section (1) of section220.

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(3) A person convicted of any offence constituted by any actcausing consequences which, together with such act, constituteda different offence from that of which he was convicted, may beafterwards tried for such last-mentioned offence, if theconsequences had not happened or were not known to the Courtto have happened, at the time when he was convicted.

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(4) A person acquitted or convicted of any offence constituted byany acts may, notwithstanding such acquittal or conviction, besubsequently charged with, and tried for, any other offenceconstituted by the same acts which he may have committed if the H

Court by which he was first tried was not competent to try theoffence with which he is subsequently charged.

(5) A person discharged under section 258 shall not be tried againfor the same offence except with the consent of the Court bywhich he was discharged or of any other Court to which the first-mentioned Court is subordinate.

(6) Nothing in this section shall affect the provisions of section 26of the General Clauses Act, 1897 (10 of 1897) or of section 188of this Code.

Explanation. - The dismissal of a complaint, or the discharge ofthe accused, is not an acquittal for the purposes of this section.”

24.3. In view of the provisions aforesaid, without furtherelaboration, suffice it would be to observe that on the facts and in thecircumstances of present case, even if respondent No. 2 is acquitted ofcharges under Sections 504 and 506, he could be tried by the jurisdictionalSessions Court in respect of alleged offence of rape under Section 376IPC, because this offence could not have been tried by the JudicialMagistrate First Class. However, he cannot be sent to trial again foroffences under Sections 504 and 506 IPC in any event. We need not sayany more in this regard.

25. Upshot of the foregoing discussion is that on the facts and inthe circumstances of this case, the alleged offence under Section 376IPC and the other offences under Sections 504 and 506 IPC do not fallwithin the ambit of ‘one series of acts so connected together as toform the same transaction’ for the purpose of trial together in terms ofSection 220 CrPC. Thus, the learned Sessions Judge, Chamoli had rightlydischarged the accused-respondent No. 2 of the offence under Section376 IPC for want of territorial jurisdiction.

26. Accordingly, and in view of the above, this appeal fails and is,therefore, dismissed.

Divya Pandey(Assisted by : Deepak Panwar, LCRA)

Appeal dismissed.

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