Ms. P Xxx vs State of Uttarakhand & Anr.

Constitution of India – Article 20 –Code of CriminalProcedure, 1973 –s.300 – Allegations against the respondent No.2-accused were of offence u/s.376 as allegedly committed in Delhi and u/ss.504 and 506 IPC where the respondent no.2 allegedly hurled abuses and extended threats which the appellant received over telephone at her village in Chamoli, Uttarakhand – Sessions Judge, Chamoli while discharging the respondent no.2 of the offence u/s.376 on the ground of lack of territorial jurisdiction transferred the matter to the Court of Judicial Magistrate First Class, Gairsain, District Chamoli for trial of the respondent No. 2 in relation to the remaining offences u/ss.504 and 506 IPC wherein respondent no.2 was acquitted – Held: Respondent No.2 having gone through the trial in relation to offences u/ss.504 and 506 IPC and having been acquitted, cannot be subjected to another trial for the same charges on the same facts – Any such process would be in blatant disregard of the settled principles which disapprove double jeopardy and are precisely contained in Article 20(2), Constitution of India as also s.300, CrPC –Protection u/clause (2) of Article 20 of the Constitution of India is clear and unambiguous.

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

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

Dismissing the appeal, the Court

HELD: 1.1 The provisions of Section 178 CrPC essentially deal with a singular offence which is either partly committed in one area and partly in another; or continues to be committed in more local areas than one; or it consists of several acts done in different local areas; or when it is uncertain of which of the several areas it has been committed. This provision primarily operates in relation to one and the same offence, which gets bifurcated into, or is spread over, different local areas because of continuing acts or different acts, one after another, like the offences of Section 498-A or Section 406 IPC in the referred cases. Then, in the eventuality of an act being an offence for anything which has been done and consequence that has ensued, as per Section 179 CrPC, the offence could be tried by a Court within whose jurisdiction the act has been done or where the consequence of such an act has ensued. Further, as per Section 180 CrPC, when an act is an offence because of its relation to any other act which is also an offence, the former could be tried by a Court within whose local jurisdiction either of the act is done. These provisions provide exception to the normal rule envisaged by Section 177 CrPC that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. [Para 19.2][349-A-D]

1.2 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 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. This Court has no hesitation in endorsing the views of the learned Sessions Judge on the facts of the present case. 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. [Paras 21 and 22][352-G-H; 353-A-E]

1.3 A close look at the alleged events/acts bring to fore the basic feature that on 13.11.2015, the appellant and the respondent No. 2 were engaged for matrimonial alliance at their village Dangidhar, Tehsil Gairsain, District Chamoli but, the proposal of marriage did not materialise. However, the alleged acts of sexual relationship took place at Delhi in the months of February and March, 2016. The other alleged acts had been of the respondent No. 2 hurling abuses and extending threats in or around the month of November, 2016, which the appellant received over telephone at her village. The acts in question were neither proximate in time nor proximate in place; they were not of continuity either. Significantly, while the appellant had alleged that she submitted to the sexual acts because of the threat by the respondent No.2 to snap the proposed alliance but it had not been her case that the respondent No. 2 attempted to coerce her into the same physical relationship while hurling abuses or threatening to kill at the later part of time. Thus, it is difficult to find continuity of actions and community of purpose or design in two different acts leading to two different set of offences, i.e., one under Section

376 IPC and the other under Sections 504/506 IPC. Putting it differently, so far as the act leading to the offence of rape under Section 376 IPC is concerned, even as per the allegations of the appellant, that particular act was a completed one and the original design of subjecting the appellant to physical relations was accomplished at Delhi in the months of February and March, 2016. As noticed, there is no allegation of such an activity having continued later or having taken place at Chamoli or even any threat having been extended to the appellant to again submit to such an activity. Viewed from this angle too, the completed act concerning one offence (Section 376 IPC) could not have been connected with the other acts leading to other offences. On the facts of this case, the offence under Section 376 IPC as allegedly committed at Delhi, being different and distinct than the other offences and being not of same transaction, could not have been tried by the Courts at Chamoli. Therefore, the order passed by the learned Sessions Judge calls for no interference. [Paras 22.1 and 23][353-F-H; 354-A-C, E-F]

Mohan Baitha and Ors. v. State of Bihar and Anr. (2001)

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

1.4 Another aspect of the matter pertains to the impact, implication and consequences of the judgment and order dated 01.05.2019 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 the offences under Sections 504 and 506 IPC, as also the validity of such proceedings before the learned Judicial Magistrate. It has been suggested on behalf of the respondent No. 1-State that the segregation of charge of the offence under Section 376 IPC had been erroneous and because of this error, the matter went to trial before the learned Judicial Magistrate for the offences under Sections 504 and 506 IPC though the entire matter ought to be tried in the Court of Sessions. 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 offence under Section 376 IPC, yet it need be stated that this line of submissions, questioning the validity of the proceedings before the learned Judicial Magistrate, remains baseless and is rather misplaced.It has been suggested on behalf of the respondent No. 1-State that the segregation of charge of the offence under Section 376 IPC had been erroneous and because of this error, the matter went to trial before the learned Judicial Magistrate for the offences under Sections 504 and 506 IPC though the entire matter ought to be tried in the Court of Sessions. 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 offence under Section 376 IPC, yet it need be stated that this line of submissions, questioning the validity of the proceedings before the learned Judicial Magistrate, remains baseless and is rather misplaced. [Para 24 and 24.1][354-F-H; 355-A-B]

1.5 So far as the offences under Sections 504 and 506 IPC are concerned, it cannot be said that the said Judicial Magistrate was not empowered by law to try these offences. Rather, the offence under Section 504 IPC is triable by any Magistrate. In the present case, the alleged threat was to cause death which relates to Part II of Section 506 IPC and is triable by a Judicial Magistrate of First Class. It is not the case that the Magistrate concerned who had tried the matter was in any way lacking in power and authority to try the offences under Sections 504 and

506 IPC. The validity and correctness of the order of segregation of the charge under Section 376 IPC is a matter entirely different but until the said order was in operation, the matter had to go to the trial before the said Magistrate and he was bound to proceed with the same. Hence, this contention on behalf of the respondent No. 1-State stands rejected. The accused-respondent No. 2 having gone through the trial in relation to offences under Sections 504 and 506 IPC and having been acquitted, cannot be subjected to another trial for the same charges on the same facts. Any such process would be in blatant disregard of the settled principles which disapprove double jeopardy and are precisely contained in Article 20(2) of the Constitution of India as also Section 300 of the Code of Criminal Procedure, 1973. The protection under clause (2) of Article 20 of the Constitution of India is clear and unambiguous. On the facts and in the circumstances of present case, even if respondent No. 2 is acquitted of charges under Sections 504 and 506, he could be tried by the jurisdictional Sessions Court in respect of alleged offence of rape under Section

376 IPC, because this offence could not have been tried by the Judicial Magistrate First Class. However, he cannot be sent to trial again for offences under Sections 504 and 506 IPC in any event. On the facts and in the circumstances of this case, the alleged offence under Section 376 IPC and the other offences under Sections 504 and 506 IPC do not fall within the ambit of ‘one series of acts so connected together as to form the same transaction’ for the purpose of trial together in terms of Section

220 CrPC. Thus, the learned Sessions Judge, Chamoli had rightly discharged the accused-respondent No. 2 of the offence under Section 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) and Anr. (1999) 8 SCC 728 : [1999] 3 Suppl. SCR 348; Sunita 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 SCC

384 : [1996] 1 SCR 532 – referred to.