2008 JTR(SC) 797
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2008(4) Supreme 410
SUPREME COURT OF INDIA
S.B. Sinha & Lokeshwar Singh Panta, JJ.
Naresh Kavarchand Khatri — Petitioner
versus
State of Gujarat & Anr. — Respondents
Appeal (crl.) 839 of 2008
Decided on : 08-05-2008
IMPORTANT POINT
The Code of Criminal procedure has conferred power on statutory authorities to direct transfer of an 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.
Act
Referred
:CONSTITUTION OF INDIA : Art.136
INDIAN PENAL CODE : S.120(b), S.420, S.406
(A) The impugned order transferred investigation under Sections 406, 420, and 120-B of the Indian Penal Code from the DCB Police Station, Vadodara, to another police station within territorial jurisdiction of the institution. Section 156 of the Code of Criminal Procedure governs transfer of investigation where jurisdiction is lacking, while Section 177 read with Sections 178 and 181 defines territorial jurisdiction for inquiry and trial. Section 120-B prescribes punishment for criminal conspiracy, and Section 420 addresses cheating and dishonestly inducing delivery of property. The High Courts jurisdiction under Article 136 of the Constitution of India is constrained where questions of investigative jurisdiction arise at an initial stage, and the Court must not interfere prematurely with statutory powers of police authorities.
(B) Key legal principles include: (i) investigation is a statutory function of the police under Section 156 of CrPC, and courts should not ordinarily interfere; (ii) territorial jurisdiction under Sections 177, 181, and 178 of CrPC determines which police station or court can inquire into or try an offence; (iii) a challenge on the ground of lack of territorial jurisdiction cannot be entertained at the investigation stage; (iv) transfer of investigation may be directed only where the investigating officer has no jurisdiction; (v) premature exercise of jurisdiction by the High Court under Article 136 is not permissible; (vi) the quality of investigation is not open to judicial scrutiny at this stage.
Facts of the case:
An FIR was lodged by certain informants against the respondents under Sections 406, 420, and 120-B of the Indian Penal Code on 23rd December, 2006, with the Crime Branch, Police Station, Vadodara City, alleging that the respondents had assured admission of the informants child to an institution and, on that pretext, collected a huge amount, later cancelling the admission. The Vadodara Police initiated investigation, and applications for transfer of investigation were filed before the High Court. On 28th December, 2006, the High Court transferred the investigation to another police station within the jurisdiction of the institution, disposing of the petitions. The informant was not impleaded as a party, no notice was issued to the appellants, and no reasons were assigned.
Findings of Court:
The Supreme Court set aside the impugned order, holding that the High Court ought not to have transferred the investigation at such an early stage without appreciating the jurisdictional facts and without hearing the appellants. It observed that the investigation had prima facie shown that part of the cause of jurisdiction arose within the territorial jurisdiction of the Vadodara Police Station, and there was no grave prejudice to the respondents. The Court emphasized that the power to direct transfer is available only when the investigating officer finds that the offence is outside his territorial jurisdiction, and the High Court interfered prematurely. The charge-sheet filed by the Waghodia Police Station was set aside, and the Vadodara Police Station was directed to initiate appropriate investigation, with any documents or witness statements to be forwarded to them.
Issues:
(i) Whether the High Court has jurisdiction to transfer an investigation from one Police Station to another at an initial stage under Article 136 of the Constitution of India; (ii) Whether the Court can interfere with the statutory powers of the police under Section 156 of the Code of Criminal Procedure on grounds of territorial jurisdiction; (iii) Whether an officer-in-charge of a police station has the requisite territorial jurisdiction to investigate an offence where the location of the offence is uncertain or partly within his jurisdiction; (iv) Whether a challenge on lack of territorial jurisdiction is maintainable at the investigation stage.
Ratio Decidendi:
The Court held that the High Court should not interfere with the investigation at an initial stage where the jurisdictional facts are not clear and where the investigating officer may well have territorial jurisdiction under Sections 177, 178, and 181 of the Code of Criminal Procedure. Premature invocation of Article 136 to transfer investigation is not permissible, and the statutory powers of the police must be respected; only when an officer determines that the offence is outside his jurisdiction may the investigation be transferred. The inquiry and trial are distinct, and appreciation of evidence is for the court, not for determining initial investigative jurisdiction.
Result:
The appeals are allowed with observations. The impugned order of the High Court is set aside, the charge-sheet filed by the Waghodia Police Station is set aside, and the investigation is directed to be conducted by the Vadodara Police Station in accordance with law, with any relevant documents and witness statements forwarded to them.
(A) The impugned order transferred investigation under Sections 406, 420, and 120-B of the Indian Penal Code from the DCB Police Station, Vadodara, to another police station within territorial jurisdiction of the institution. Section 156 of the Code of Criminal Procedure governs transfer of investigation where jurisdiction is lacking, while Section 177 read with Sections 178 and 181 defines territorial jurisdiction for inquiry and trial. Section 120-B prescribes punishment for criminal conspiracy, and Section 420 addresses cheating and dishonestly inducing delivery of property. The High Courts jurisdiction under Article 136 of the Constitution of India is constrained where questions of investigative jurisdiction arise at an initial stage, and the Court must not interfere prematurely with statutory powers of police authorities.
(B) Key legal principles include: (i) investigation is a statutory function of the police under Section 156 of CrPC, and courts should not ordinarily interfere; (ii) territorial jurisdiction under Sections 177, 181, and 178 of CrPC determines which police station or court can inquire into or try an offence; (iii) a challenge on the ground of lack of territorial jurisdiction cannot be entertained at the investigation stage; (iv) transfer of investigation may be directed only where the investigating officer has no jurisdiction; (v) premature exercise of jurisdiction by the High Court under Article 136 is not permissible; (vi) the quality of investigation is not open to judicial scrutiny at this stage.
Facts of the case:
An FIR was lodged by certain informants against the respondents under Sections 406, 420, and 120-B of the Indian Penal Code on 23rd December, 2006, with the Crime Branch, Police Station, Vadodara City, alleging that the respondents had assured admission of the informants child to an institution and, on that pretext, collected a huge amount, later cancelling the admission. The Vadodara Police initiated investigation, and applications for transfer of investigation were filed before the High Court. On 28th December, 2006, the High Court transferred the investigation to another police station within the jurisdiction of the institution, disposing of the petitions. The informant was not impleaded as a party, no notice was issued to the appellants, and no reasons were assigned.
Findings of Court:
The Supreme Court set aside the impugned order, holding that the High Court ought not to have transferred the investigation at such an early stage without appreciating the jurisdictional facts and without hearing the appellants. It observed that the investigation had prima facie shown that part of the cause of jurisdiction arose within the territorial jurisdiction of the Vadodara Police Station, and there was no grave prejudice to the respondents. The Court emphasized that the power to direct transfer is available only when the investigating officer finds that the offence is outside his territorial jurisdiction, and the High Court interfered prematurely. The charge-sheet filed by the Waghodia Police Station was set aside, and the Vadodara Police Station was directed to initiate appropriate investigation, with any documents or witness statements to be forwarded to them.
Issues:
(i) Whether the High Court has jurisdiction to transfer an investigation from one Police Station to another at an initial stage under Article 136 of the Constitution of India; (ii) Whether the Court can interfere with the statutory powers of the police under Section 156 of the Code of Criminal Procedure on grounds of territorial jurisdiction; (iii) Whether an officer-in-charge of a police station has the requisite territorial jurisdiction to investigate an offence where the location of the offence is uncertain or partly within his jurisdiction; (iv) Whether a challenge on lack of territorial jurisdiction is maintainable at the investigation stage.
Ratio Decidendi:
The Court held that the High Court should not interfere with the investigation at an initial stage where the jurisdictional facts are not clear and where the investigating officer may well have territorial jurisdiction under Sections 177, 178, and 181 of the Code of Criminal Procedure. Premature invocation of Article 136 to transfer investigation is not permissible, and the statutory powers of the police must be respected; only when an officer determines that the offence is outside his jurisdiction may the investigation be transferred. The inquiry and trial are distinct, and appreciation of evidence is for the court, not for determining initial investigative jurisdiction.
Result:
The appeals are allowed with observations. The impugned order of the High Court is set aside, the charge-sheet filed by the Waghodia Police Station is set aside, and the investigation is directed to be conducted by the Vadodara Police Station in accordance with law, with any relevant documents and witness statements forwarded to them.
JUDGMENT
S.B. Sinha, J. —
1. Leave granted.
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. 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 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 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),1 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 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,2 (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.
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.
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. 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.
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