Naresh Kavarchand Khatri vs State Of Gujarat & Anr

Naresh Kavarchand Khatri ... Appellant

Versus

State of Gujarat & Anr. ...

Respondents

WITH

CRIMINAL APPEAL NO. 840 OF 2008

(Arising out of SLP (Crl.) No.2258 of 2007)

JUDGMENT

S.B. Sinha, J.

1. Leave granted.

2

2. Whether the High Court has the requisite jurisdiction to transfer an

investigation from one Police Station to another is the core question

involved in these two appeals which arise out of judgment and order dated

28.12.2006 in Special Criminal Appeal Nos.2272 and 2271 of 2006.

3. Appellant lodged a First Information Report before the detective

Crime Branch, Police Station, Vadodara City under Sections 406, 420 and

120B of the Indian Penal Code against the respondents. According to the

appellants, the respondent had assured that the child of the first informants

would be admitted in their institution and on that pretext, collected a huge

amount from them. The children of the first informant took admission after

depositing the admission fee and miscellaneous charges etc. However, their

admission was later on cancelled.

4. The FIR was lodged on 23.12.2006. Vadadora Police initiated the

investigation. Applications for transfer of investigation were filed before

the High Court. On 28.12.2006, the High Court passed the impugned order

in the following terms :

"Rule. Mr.P.D. Bhate Ld. APP waive service on behalf of opponent State. At the joint request of the parties the matter is taken up for final hearing today.

3 By way of these petitions the petitioner has prayed to transfer the Investigation of complaint being ICR No.89 of 2006 and 90/2006 registered with DCB Police Station, Vadodara city to another police station having territorial jurisdiction or to CID Crime or any other independent agency. Heard the Ld. Counsel for the parties Ld.APA has stated that respondent State has no objection if the complaint in question is transferred to some authority as prayed for.

In that view of the matter Complaint No.ICR 89 of 2006 and 90 of 2006 registered with DCB Police Station, Vadodara city are ordered to be transferred to another police station within whose jurisdiction the institution is situated. With the said direction, the petition stand disposed of. Rule is made absolute."

5. The informant was not impleaded as a party therein. No notice was

issued on the said appeals. No reason has been assigned. The Court did not

advert to the question as to whether it had any jurisdiction to pass the said

order. Why such a concession was made by the learned APP on the very

first day of hearing is not known.

The power of the court to interfere with an investigation is limited.

The police authorities, in terms of Section 156 of the Code of Criminal

Procedure, exercise a statutory power. The Code of Criminal procedure has

conferred power on the statutory authorities to direct transfer of an 4

investigation from one Police Station to another in the event it is found that

they do not have any jurisdiction in the matter. The Court should not

interfere in the matter at an initial stage in regard thereto. If it is found that

the investigation has been conducted by an Investigating Officer who did

not have any territorial jurisdiction in the matter, the same should be

transferred by him to the police station having the requisite jurisdiction.

6. It is of some significance that the High Court exercised its

jurisdiction even without notice to the petitioner. The investigation has to

be carried out on the basis of the allegations made. The first informant is

required to be examined; statements of his witnesses were required to be

taken; the accused were also required to be interrogated.

The undue haste with which the High Court has exercised its

jurisdiction, in our opinion, should not be encouraged. Whether an officer

incharge of a police station has the requisite jurisdiction to make

investigation or not will depend upon a large number of factors including

those contained in Sections 177, 178 and 181 of the Code of Criminal

Procedure. In a case where a trial can be held in any of the places falling

within the purview of the aforementioned provisions, investigation can be

conducted by the concerned officer in-charge of the police station which has 5

jurisdiction to investigate in relation thereto. Sub-section (4) of Section 181

of the Code of Criminal Procedure Code would also be relevant therefor.

We need not dilate more on analyses of the aforementioned

provisions as the said question has been gone into by this Court on more

than one occasion.

In Satvinder Kaur vs. State (Govt. of NCT of Delhi) : 1999 (8) SCC

728 this Court noticing various provisions of the Code of Criminal

Procedure opined:

"12. A reading of the aforesaid sections would make it clear that Section 177 provides for "ordinary" place of enquiry or trial. Section 178, inter alia, provides for place of enquiry or trial when it is uncertain in which of several local areas an offence was committed or where the offence was committed partly in one local area and partly in another and where it consisted of several acts done in different local areas, it could be enquired into or tried by a court having jurisdiction over any of such local areas. Hence, at the stage of investigation, it cannot be held that the SHO does not have territorial jurisdiction to investigate the crime."

It was furthermore held :

"15. Hence, in the present case, the High Court committed a grave error in accepting the contention of the respondent that the investigating officer had no jurisdiction to investigate the matters on the alleged ground that no part of the offence was committed within the territorial jurisdiction of the police station at Delhi. The 6

appreciation of the evidence is the function of the courts when seized of the matter. At the stage of investigation, the material collected by an investigating officer cannot be judicially scrutinized for arriving at a conclusion that the police station officer of a particular police station would not have territorial jurisdiction. In any case, it has to be stated that in view of Section 178(c) of the Criminal Procedure Code, when it is uncertain in which of the several local areas an offence was committed, or where it consists of several acts done in different local areas, the said offence can be enquired into or tried by a court having jurisdiction over any of such local areas. Therefore, to say at the stage of investigation that the SHO, Police Station Paschim Vihar, New Delhi was not having territorial jurisdiction, is on the face of it, illegal and erroneous. That apart, Section 156(2) contains an embargo that no proceeding of a police officer shall be challenged on the ground that he has no territorial power to investigate. The High Court has completely overlooked the said embargo when it entertained the petition of Respondent 2 on the ground of want of territorial jurisdiction."

7. Yet again in Asit Bhattacharjee vs. Hanuman Prasad Ojha : (2007) 5

SCC 786 this Court clearly held :-

"32. No such explicit prayer was made by the respondents in their writ petition, although a prayer for issuance of a writ in the nature of mandamus, directing the State of West Bengal to transfer Case No. 381 to the State of U.P., had been made. The question of the State of West Bengal's having a legal duty in that behalf did not arise. Only in the event an investigating officer, having regard to the provisions contained in Sections 154, 162, 177 and 178 of the Code of Criminal Procedure had arrived at a finding that the alleged crime was not committed within his territorial jurisdiction, could forward the first information report to the police having jurisdiction in the matter.

7 33. Stricto sensu, therefore, the High Court should not have issued such a direction. Assuming, however, that the High Court could mould the relief, in our opinion, it was not a case where on the face of the allegations made in the complaint petition, the same could be said to be mala fide. A major part of the cause of action might have arisen in the State of U.P., but the same by itself would not mean that the Calcutta Court had no jurisdiction whatsoever."

8. Mr. Sorabjee, learned Senior Counsel and Mr. Huzefa Ahmed,

appearing for the respondent No.2 in each of the appeals, however, brought

to our notice that charge-sheet has already been submitted. It was

contended that proper investigation has been carried out in the matter and

even the accused respondent had been taken into custody and, thus, this

Court, in a situation of this nature, should not exercise its jurisdiction under

Article 136 of the Constitution of India.

9. Investigation has been carried out by the officer incharge of Police

Station Waghodia only pursuant to the order of the High Court. If the order

of the High Court is to be set aside, the investigation must be held to have

been carried out without any jurisdiction. We are not, herein concerned

with the quality of the investigation but the effect of the order passed by the

High Court. We do not know as to whether proper investigation as

contended, has in fact been considered at by the court or not. 8

10. The first information report was lodged on 23rd December, 2006. The

High Court appears to have been approached within a few days, namely 26th

December, 2008.

The impugned order has been passed on 28th December, 2008. The

first information report prima facie shows that a part of cause of jurisdiction

arose within the territorial jurisdiction of Vadodara Police Station. We fail

to understand as to how at such an early stage, the investigation should have

been directed to be transferred, having regard to the fact that Waghodia

Police Station where the `institution' in question is situated is within the

jurisdiction of Vadodara (District) and is, therefore, not a case where the

accused would have been even otherwise gravely prejudiced in joining

investigation.

11. We, therefore, are of the opinion that it is not a case where we should

refuse to exercise jurisdiction under Article 136 of the Constitution of India.

We, therefore, set aside the impugned orders. Consequently, the charge

sheets filed by the Wagodhia Police Station stand set aside. The concerned

Police Officer of Vadodara Police Station would initiate appropriate

investigation in the matter in accordance with law. 9

Any document collected as also the statements of any witnesses

recorded by the officer in-charge of Waghodia Police Station, however, may

be sent to the incharge of Vadodara Police Station.

12. The appeals are allowed with the aforementioned observations and

directions.

.......................................J. (S.B. SINHA)

..........................................J. (LOKESHWAR SINGH PANTA) New Delhi May 8, 2008