Jalees Khan vs State of Rajasthan

Prashant Kumar Agarwal, J.

Aggrieved with the order dated 17.3.2015 passed by the Additional Sessions Judge, Kaman (District Bharatpur) in Sessions Case No. 19/2014 whereby the learned trial Court has dismissed the application filed by the petitioner under Section 177 read with Section 227 Cr.P.C., the accused-petitioner has come to this Court by way of this Criminal Misc. Petition under Section 482 Cr.P.C. with a prayer to set aside the impugned order and by allowing the aforesaid application to discharge the petitioner for the offence under Section 376 IPC. By way of aforesaid application, it was prayed by the petitioner that he is liable to be discharged as the trial Court does not have territorial jurisdiction to try him for the aforesaid offence as per prosecution case itself the offence to the extent of the petitioner did not occur within the territorial jurisdiction of the trial Court.

Brief relevant facts for the disposal of the present petition are as below:--

"(1) A complaint came to be filed before Judicial Magistrate, Kaman on 8.12.2010 against as many as six named persons about an incident of abduction of the prosecutrix on 20.10.2010, which was forwarded for investigation under Section 156 (3) Cr.P.C. to Police Station Kaman, where FIR No. 25/2011 for offence under Section 366 IPC was registered and investigation commenced.

(2) During investigation the prosecutrix was recovered on 24.3.2011 and her statement under Section 161 Cr.P.C. was recorded on the same day. It is to be noted that the present petitioner was named as a person involved in the incident neither in the FIR nor in the statement of the prosecutrix under Section 161 Cr.P.C.

(3) In her statement under Section 164 Cr.P.C. recorded on 28.3.2011, it was alleged by the prosecutrix that the present petitioner also committed rape upon her twice at the residential house of co-accused Islamuddun situated at Village Punhana in the State of Haryana.

(4) After investigation charge-sheet for the offences under Sections 366 and 376 IPC was filed only against one Shri Nisar son of Shri Ayub and no charge-sheet was filed for any offence against the petitioner and persons which were alleged involved in the aforesaid incident.

(5) During the course of trial of Shri Nisar, an application came to be filed under Section 319 Cr.P.C. to take cognizance against the petitioner and some other persons named in the application for offences under Sections 366, 368, 376 and 504 IPC. The application was allowed by the trial Court vide order dated 23.7.2012 and cognizance for offence under Section 376 IPC was taken against the petitioner and he was ordered to be summoned by way of bailable warrant. That order was unsuccessfully challenged by the petitioner before this High Court by way of S.B. Criminal Misc. Petition No. 864/2012.

(6) Petitioner appeared before the trial Court and aforesaid application was moved which was dismissed by the trial Court vide impugned order. In these circumstances, the petitioner is before this Court."

It was submitted by the learned counsel for the petitioner that the petitioner was named as a person involved in the incident neither in FIR nor by the prosecutrix in her statement under Section 161 Cr.P.C. recorded on 24.3.2011 immediately after her recovery and he has been involved in the incident for the first time by the prosecutrix in her statement under Section 164 Cr.P.C. recorded on 28.3.2011. According to learned counsel for the petitioner that if for the purpose of disposal of the present petition the statement under Section 164 Cr.P.C. is taken to be true in its entirety, it is clear that the alleged whole incident with the prosecutrix occurred in two separate and independent parts. In the first part, she was abducted by six named persons on 20.10.2010 from her village and she was taken to certain places and during that period she was raped by several persons more than once and ultimately she was handed over some persons of her village by co-accused-Shri Islamuddin and as soon as she was handed over to villagers, the first part of the incident came to an end even according to the version of incident as stated by the prosecutrix herself in statement under Section 164 Cr.P.C. The second part of the incident, according to the version of the prosecutrix herself, occurred in the manner that the villagers took her to the residential house of the petitioner where SHO-Shri Deen Mohammed was called by the petitioner and both of them handed over the prosecutrix back to co-accused-Shri Islamuddin and Nisar and thereafter, the petitioner committed rape twice upon her at the residence of co-accused-Shri Islamuddin which is situated at village Punhana in the state of Haryana. It was submitted that as the incident of rape to the extent of petitioner is a separate and independent incident not connected in any manner with the first incident involving her abduction and rape upon her by several other persons, a separate charge-sheet should have been filed against the petitioner in a competent Court in the State of Haryana and the petitioner cannot be tried along with co-accused by the present trial Court and the petitioner is liable to be discharged. It was also submitted that in the facts and circumstances of the case provisions of Section 178 Cr.P.C. are not applicable as the offence of Section 376 IPC to the extent of petitioner cannot be said to be an offence continuous to the offences allegedly committed by the co-accused. It was also submitted that vide order dated 23.4.2012 cognizance has been taken against the petitioner only for an offence under Section 376 IPC for the incident allegedly occurred at the residential house of co-accused-Shri Islamuddin after the prosecutrix was handed over back to him and, therefore, it cannot be said that the second incident is part and parcle of the of the earlier incident. According to the learned counsel when it is certain that the incident of rape to the extent of the petitioner has occurred in the State of Haryana, the petitioner can be tried for that offence only by a competent Court in the State of Haryana and not by the present trial Court.

On the other hand, it was submitted by the learned Public Prosecutor that the entire incident of the present case occurred in a serious of transactions which commenced with the abduction of the prosecutrix on 20.10.2011 from her village and the incident came to an end only when she escaped from the custody of the accused-persons and recovered by the police. It was further submitted that the offence of rape committed by the petitioner is part and parcel of the same incident and was committed in continuous of the initial incident of abduction which is a continuous offence.

On consideration of submissions made on behalf of the respective parties and the material made available on record including the statement of the prosecutrix recorded under Section 164 Cr.P.C. and the relevant legal provisions, I do not find any merit in the submissions made on behalf of the petitioner. Merely because during the course of incident, at one point of time, as per version of the prosecutrix herself, she was handed over by co-accused-Shri Islamuddin to some villagers and they took her to the residential house of the petitioner and subsequent to that rape was committed by the petitioner at a place in the State of Haryana, it cannot be said that the entire incident infact consists of two parts which are separate and independent to each other. It cannot be disputed that offence of abduction is a continuous offence and in the present case it came to an end only when the prosecutrix escaped from the custody of the accused-persons and recovered by the police. In my opinion each and every offence committed in between by any person including the present petitioner is part and parcel of the same transaction and offence of rape as allegedly committed by the petitioner was also committed in continuous of other offences.

Section 178 Cr.P.C. provides that where an offence is committed partly in one local area and partly in another or where an offence is continuing one, and continues to be committed in more local areas then one, it can be tried by a Court having jurisdiction over any of such local areas. The offence of abduction being a continuing offence, it is triable by a Court having jurisdiction over the local area where it was initially committed i.e. in the present case by the trial Court.

As per clause (b) of Section 184 Cr.P.C. where the offence or offences committed by several persons are such that they may be charged with and tried together by virtue of the provisions of section 223, the offences can be tried by any Court competent to try any of the offence.

Clause (d) of Section 223 Cr.P.C. provides that persons accused of different offences committed in the course of the same transaction can be charged and tried together. In order to find out whether offences committed by different accused persons form part of the same transaction within the meaning of clause (d) of Section 223 Cr.P.C., the main test is continuity of action. In the present case although, as per the version of prosecutrix herself, co-accused-Shri Islamuddin handed over her to some villagers, but they did not take her to police or to her parents, and she was initially taken by them to the residence of present petitioner and he and one Shri Deen Mohammed took the prosecutrix to the residential house of co-accused-Shri Islamuddin situated at a place in the State of Haryana and it is here she was twice raped by the petitioner. In these circumstances, in the opinion of this Court it cannot be said that the alleged subsequent incident is not part and parcel of the same transaction.

Perusal of impugned order shows that the learned trial Court after taking into consideration the entire facts and circumstances of the case and the relevant legal provisions and recording sufficient reasons in support of the same has passed the impugned order in which I do not find any illegality or perversity requiring interference by this Court.

Consequently, the criminal misc. petition is, hereby, dismissed. The stay application also stands dismissed.