Tintu Abraham v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **MONDAY, THE 11TH DAY OF JUNE 2012/21ST JYAISHTA 1934** ## **Crl.MC.No. 637 of 2012 ()** **------------------------CRIME NO.26/2012 OF MULANTHURUTHY POLICE STATION** ## **PETITIONER(S)/2ND ACCUSED:** **-------------------------** ## **TINTU ABRAHAM** **AGED ABOUT 20 YEARS, S/O.ABRAHAM, PULIVELIL HOUSE UZHAVOOR EAST P.O., KOTTAYAM DISTRICT.** ## **BY ADVS.SRI.RAJIT SRI.BABY THOMAS** ## **COMPLAINANT(S)/STATE & DE FACTO COMPLAINANT:** **----------------------** **1. STATE OF KERALA REP. BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM.** **2. PLAVILA GEEVARGHESE JOHN** - **S/O.JOHN, KADAYIKKAL PLAVILA HOUSE PERUMBILLY P.O, MULANTHURUTHY, ERNAKULAM. 682 314** **BY DIRECTOR GENERAL OF PROSECUTION SRI.ASIF ALI** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06-06-2012, THE COURT ON 11/06/2012 PASSED THE FOLLOWING:** ## **S.S.SATHEESACHANDRAN, J. ------------------------------Crl.M.C.NO.637 OF 2012 (D) ----------------------------------Dated this the 11[th] day of June, 2012** ## **O R D E R** Petitioner is the 2[nd] accused in Crime No.26 of 2012 of Mulanthuruthy Police Station. The above crime has been registered recording the statement of one Geevarghese John for offences punishable under Sections 143, 147, 148, 323, 324 and 307 read with Section 149 of the Indian Penal Code. The de facto complainant, a student of an Engineering College along with his companion, one Arun Raj, a co-student, on closing of the College for Pongal holidays, that is, on 14.01.2012, was on his way, in a train (Chennai - Thiruvananthapurm mail), to reach his home at Ernakulam. On the way, at Erode Railway station, some senior malayalee engineering students entered the compartment in which the de facto complainant and his companion travelled, demanded money and also his ATM card, **Crl.M.C.No.637/2012** **2** and when that was refused, they brutally assaulted him and his companion, inflicted deep injuries on their face and body with sharp edged weapons and both of them were thrown out of the train to the platform in Erode Railway station. While his companion Arun Raj got back into the train, the de facto complainant, severely injured and bleeding, was taken to a hospital by the railway authorities. Railway police recording his statement registered Annexure A FIR, (Translated version of that FIR is Annexure B) for the offence under Section 324 of the Indian Penal Code. Mother of the injured rushing to Erode hospital brought him to Ernakulam and admitted him in a hospital to provide better treatment. Information being conveyed from the hospital that the injured, victim of an assault, is treated in the hospital Sub Inspector of Police, Mulanthuruthy Police Station, within whose jurisdiction that hospital is situate, went over and recorded the statement of the injured and registered Annexure D FIR, wherein the present petitioner has been arrayed as the 2[nd] accused among the assailants of the injured. Investigation of that crime is now in progress. **Crl.M.C.No.637/2012** **3** Petitioner/2[nd] accused has filed this petition under Section 482 of the Code of Criminal Procedure, for short, the 'Code' to quash the crime registered under Annexure D FIR and all further proceedings thereon. He also seek transmitting the records and materials collected in Crime No.26 of 2012 of Mulanthuruthy police station to Erode Railway police station to be tagged on with Crime No.86 of 2012 registered under Annexure A FIR of that station. 3. The investigating officer was directed to file a statement; and on his behalf, the Public prosecutor has filed a statement stating the circumstances under which the crime under Annexure D FIR was registered. Steps taken so far in the investigation and also circumstances pertaining to the case are spelt out in the statement. 4. The main thrust of challenge raised by the learned counsel for the petitioner to assail Annexure D FIR registered at Mulanthuruthy Police station is that the incident having **Crl.M.C.No.637/2012** **4** occurred in Erode, with a crime case under Annexure A FIR already registered by the Erode Railway police, the Station house officer, Mulanthuruthy Police station has no jurisdiction or authority to register a separate crime recording the statement of the injured and proceed with the investigation of such crime. Previous crime under Annexure A FIR was registered recording the statement of the same informant (injured) is also pointed out by the counsel to contend that a second crime at a different police station within the jurisdiction of which no transaction covered by the incident took place, is patently illegal. The learned counsel for the petitioner, adverting to Sections 177 and 183 of the Code, and relying on **Lakshmi Prasad v. Ram Gopal Pandiya (1979-LAWS(ALL)-9-32),** contended that the harmonious construction of the above two sections would unerringly show that only the police at Erode police station, within whose jurisdiction the incident allegedly occurred, has competency and authority to investigate the crime, and since a crime has already been registered under Annexure A FIR and it is under investigation, Annexure D FIR and all criminal **Crl.M.C.No.637/2012** **5** proceedings arising thereof are liable to be quashed, or in the alternative, the records and materials collected in investigation of that crime have to be transmitted to Erode Police station which is continuing with the investigation under Annexure A FIR. The learned Director General of Prosecutions opposing the application contended that the reliefs canvassed in the petition invoking the inherent powers of this Court under Section 482 of the Code are not allowable. The facts and circumstances involved in the case, and more so, the overtacts imputed against the assailants by the de facto complainant/injured as reflected in his statement Annexure C giving rise to Annexure D FIR would clearly spell out that the assailants assaulted him and his companion while they were on a journey in a train with destination at Ernakulam. When that be so, the assault on the de facto complainant by the assailants was at Erode while the train was stationed at that place in its journey to the destination, is no ground to hold that only the police at Erode has jurisdiction to register and investigate a crime over the incident, according to the learned Director General of Prosecutions. Where Section **Crl.M.C.No.637/2012** **6** 183 of the Code specifically states that when the offence is committed in the course of performing journey or voyage, it may be enquired into or tried by a court through or into whose local jurisdiction that person or thing passed in the course of that journey registration of the crime at Mulanthuruthy Police station, the destination point of the journey taken, cannot be held to be without jurisdiction or illegal, is the further submission of the learned Director General of Prosecutions. A co-accused in Crime No.26 of 2012 has already filed writ petition No.7031 of 2012 before the High Court of Madras to declare that the Judicial Magistrate, Erode alone has got jurisdiction to take cognizance of the offence covered by the crime registered under Annexure A FIR of Erode Railway police and for direction of transmission of Annexure D FIR of Mulanthuruthy Police station to Erode Railway police; and, a request has been made by the Director General of Police, Kerala to his counter part in Tamil Nadu to transfer Annexure A FIR registered at Erode Railway Police station to the Kerala Police for investigation with Annexure D FIR are also pointed out by the learned Director **Crl.M.C.No.637/2012** **7** General of Prosecutions to contend that at this stage any direction by this Court to transmit Annexure D FIR to Erode Railway police, canvassed as an alternate relief, is uncalled for, where the circumstances sufficiently show that crime registered under Annexure D FIR and investigation proceeded by the Mulanthuruthy police is perfectly legal and in consonance with the provision covered by Section 183 of the Code. 5. To consider the question whether an officer in charge of a police station has the requisite jurisdiction to make investigation or not, a large number of factors including those covered by the various provisions under Chapter XIII of the Code dealing with the jurisdiction of the criminal courts in enquiries and trials have to be taken note of. The Apex Court in **Naresh Kavarchand Khatri v. State of Gujarat and another ((2008)** **8 SCC 300)** has held that in a case where a trial can be held in any of the places falling within the provisions covered by Chapter XIII of the Code, investigation can be conducted by the officer in charge of the police station concerned which has **Crl.M.C.No.637/2012** **8** jurisdiction to investigate in relation thereto. When that be so, the primary question to be looked into is whether Section 183 of the Code has application so far as the trial of the case by the criminal court in respect of the offences alleged to have been committed by the accused in the case. ## 6. Section 183 of the Code reads thus: _“When an offence is committed, whilst the person by or against whom, or the thing in respect of which, the offence is committed is in the course of performing a journey or voyage, the offence may be inquired into or tried by a Court through or into whose local jurisdiction that person or thing passed in the course of that journey or voyage”._ The object behind the section is to obviate the difficulties that may be frequently experienced in locating the exact place of the commission of an offence committed during the course of journey and also to avoid inconveniences resulting in insisting on a trial in a court within whose jurisdiction the offence was actually committed. Where the offence is committed during the course of a journey or voyage, the legal fiction under the section **Crl.M.C.No.637/2012** **9** definitely provide for trial of the offenders at the place where the journey or voyage terminated, apart from the place at which the offence was committed. It is also to be noted that the operation of the above section is limited only to offence committed during the journey and not to any related offences connected thereto. Subject to the conditions specified in the section, the legal fiction thereunder provides for trying the offender within the limits of certain courts, provided that there is continuous journey or voyage from one terminus to another through any of such courts. That section, in effect, give jurisdiction to the court even to the place where the offender stops or breaks his journey after committing an offence during such journey. Where the allegations imputed in the case spell out that the offence imputed against the accused are committed in a train starting from Chennai with destination at Ernakulam, the incident occurred at Erode Railway Station and, therefore, only the police at that place can register and investigate a crime cannot be accepted as correct. In the decision relied by the learned counsel for the petitioner, **Lakshmi Prasad's case,** cited supra, **Crl.M.C.No.637/2012** **10** it has been observed that Section 183 of the Code can have application only where there is lack of knowledge of the place where the offence was committed during the course of a journey or voyage. With respect, I am unable to agree with the observation made having regard to the legal fiction covered under Section 183 of the Code. A scrutiny of the provision, no doubt, shows that it is intended to get over the difficulties that might be experienced in locating the exact place of commission of an offence committed during a journey or voyage; but that does not mean that it has application only where there is lack of knowledge of the exact place of commission of offence during the journey or voyage. In fact when the offence is committed during a journey or voyage the Section states that “the offence may be inquired into or tried by a Court through or into whose local jurisdiction that person or thing passed in the course of that journey or voyage.” Section embodies a legal fiction that when an offence is committed during the course of a journey it is deemed to have been committed within the local limits of certain courts through which the person or thing passed in the course of **Crl.M.C.No.637/2012** **11** that journey. Section providing jurisdiction to one or more courts to try the offence has application only where the offence is actually committed during the journey or voyage. Inconveniences that may follow in insisting for trial at the exact place of offence committed during journey or voyage, to both offender and victim, is yet another factor behind the legal fiction under the section providing for jurisdiction to more than one courts, subject to the conditions fixed, when the offence is committed during a journey or voyage. When that be so, I find the registration of Annexure D FIR at Mulanthuruthy Police station cannot be assailed as one without authority or jurisdiction. The next limb of challenge canvassed that Annexure D is a second FIR over the same incident, in respect of which Annexure A FIR had already been registered by the Erode Railway police and that investigation is continued thereof, I find, at this stage, it cannot be given much significance where it is pointed out that the Director General of police, Kerala has already addressed his counter part in Tamil Nadu for transfer of Annexure A FIR registered at Erode Railway Police station to the **Crl.M.C.No.637/2012** **12** Kerala police. It cannot be stated that the Director General of Police, Kerala is not legally empowered to make such a request, nor that the request cannot be acceded to by his counter part in Tamil Nadu. Further more, it is seen, one of the co-accused in the crime has already moved the High Court of Madras, filing a writ petition to determine questions as to which among the police forces of two States has competency to investigate the crime. Where a request has already been made for transfer of Annexure A FIR and challenges over the investigation proceeded under Annexure D FIR is pending consideration in a writ petition, challenge canvassed to assail Annexure D FIR contending it is a second FIR to quash the proceedings continued thereof cannot be entertained at this stage in the petition filed under Section 482 of the Code. None of the reliefs canvassed by the petitioner is allowable and the Crl.M.C. is dismissed. ## **S.S.SATHEESACHANDRAN JUDGE** prp