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GAHC010005222009
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P. 249/2009
1:SMTI JUNU DEKA
DAUGHTER OF LATE TIKEN DEKA, VILLAGE and P.O.- BORCHOLA, DIST.-
MORIGAON, ASSAM.
VERSUS
1:THE STATE OF ASSAM
Advocate for the Petitioner : MR A R BHUIYAN
Advocate for the Respondent : MR.A GANGULY
BEFORE
HONOURABLE MR. JUSTICE HITESH KUMAR SARMA
JUDGMENT
Date : 21-11-2019
Heard Mr. A. Tiwari, learned Amicus-curiae. Mr. B.B. Gogoi, learned Additional Public
Prosecutor represents the state respondent.
2) This is an application filed under Sections 401/397 Cr.PC challenging the legality,
propriety and correctness of the order, dated 30.3.2009, passed by the learned Judicial
Magistrate 1st Class, Morigaon, in CR Case No. 363/2009, dismissing the complaint, dated
21.3.2009 filed by the petitioner on the ground of lack of territorial jurisdiction.
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3) The learned Judicial Magistrate 1 st Class, Morigaon, while taking cognizance of the
offence in the instant case, vide order dated 21.3.2009, passed the following order:
“C/B received on transfer for disposal
I have perused the complain petition and I take cognizance of the offence.
Taking of cognizance, I must point out, precedes recording of statement
u/s 200 of Cr.P.C. reliance is placed upon the Hon’ble Gauhati High Court decision
reported in 2006(2) GLT 574.
I have then recorded statement of the complainant u/s 200 of the code.
Three questions arise.
1) Whether this court has territorial jurisdiction?
2) Whether sanction for prosecution is required or not?
3) Whether sufficient material exist for issuing common/warrant against the accused
within the meaning of sec 204 of Cr.P.C.
Fixed 24.3.09 or enquiry.”
Thereafter on 30.3.2009, the learned Judicial Magistrate aforesaid, passed the impugned
order, which reads as follows :
“Complainant is present.
Perused orders dated 1-3-09 and dated 26-3-09.
I have gone through the decision reported in 1995 CRI.L.J. 3859, which was canvassed
before me by learned counsel Mr. Rezzak Bhuyan.
In the case referred before me the incident of assault took place in the moving train, the
facts of that case therefore dissimilar from the facts in the hand.
The limited question that confronts this Court today is regarding the “territorial jurisdiction”
of this court to try this case at hand.
A careful reading of the complain petition goes to show that the complainant boarded the bus
from Morigaon to Jorhat on 2nd Nov’ 08. It is reveal from the statement of the complainant,
recorded under Sec 200 of CrPC, that on reaching Jorhat, she alighted from the bus and
decided to half for the night and accordingly booked a room. The incident of rape, as
disclosed by the complain petition did not take place even in that house, it was within the
precincts of Jorhat police station where the complainant was taken and there she was raped
by the Adll. Deputy Commissioner and Addl. Superintendent of Police.
What therefore is transparent is that the complainant had stopped her journey voluntarily
when she alighted from the bus at Jorhat and booked a room for her stay over night. It was
her conscious decision to stay for the night and accordingly booked a room at Jorhat.
It is my considered opinion that when the complainant got down from the bus at Jorhat and
took conscious decision to stay for the night and accordingly booked a room at Jorhat the
Journey had come to an end. I must reiterate here that the incident as alleged did not
started at bust stop, it did not took place even in the room she was staying, in any view of
the matter therefore it cannot be said that the incident occurred while in the course of the
Journey. Sec 183 of the Code therefore is not attracted.
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This case is governed by Sec 177 of the Code, in that view of the matter this court has no
jurisdiction to try this offence. The complain petition stands rejected.
In the light of the decision of Hon’ble Gauhati High Court cited in 2006(supp) GLT 781, Subal
Sarkar and Ors vs Purabi Sarkar, the complainant is at liberty to approached the appropriate
Courts/Forum, if so advice.
Thus this case stands disposed of.”
4) I have perused both the aforesaid orders. I have also perused the entire record
including the complaint filed by the petitioner before the learned Judicial Magistrate,
Morigaon.
5) The first submission made by the learned Amicus-curiae, appearing on behalf of the
petitioner, Mr. A. Tiwari, is that the impugned order is not maintainable, and according to him,
an appeal would have lied against the impugned order. Now, it could be gathered from the
impugned order, quoted above, that the complaint was ” rejected” by the learned Judicial
Magistrate, 1st Class, on the ground that it lacks territorial jurisdiction to entertain the
complaint. At the same breath, in the next paragraph, the learned Magistrate has given the
liberty to the complainant to approach the appropriate courts/forum, if so advised. The word
“rejection” appearing in the said order containing therein a further direction that the
petitioner, if so advised, may approach the appropriate court, taken together, makes this court
understand that it was not the intention of the learned Magistrate to reject or dismiss the
complaint rather his intention was to see that the complainant approaches the appropriate
court within the jurisdiction whether the offence was committed.
6) Another important aspect noticed in the order dated 21.3.2009, passed by the learned
Magistrate taking cognizance is that although cognizance has been taken, there is no mention
at all as to which is the offence for which cognizance was taken. But, in the peculiar facts
and circumstances of the case, this court needs to gather the purport of the order not only
from the order but also from the entire materials available on record. The complaint was filed
for an offence under Section 376 IPC alleging rape on her person by very senior public
servants who are entrusted with maintaining law and order in the society. The accused
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persons are the Additional Deputy Commissioner and Additional Superintendent of Police, and
therefore, as stated above, they were otherwise entrusted with maintaining law and order in
the society. It appears that the offence alleged is under Section 376 IPC. In the absence of
specific mention in the order taking cognizance as to for which offence cognizance is taken,
taking entire materials on record and the real purport of the order, this court is inclined to
understand that the cognizance was, in effect, taken under Section 376 IPC. At the cost of
repetition, I would like to reiterate that there is no mention in the order as to for which
offence cognizance was taken, and therefore, to meet the situation arising out of such an
order, read together with the impugned order, this court has taken this unusual course
considered to be logical and reasonable.
7) Learned Amicus-curiae has also pointed out that appropriate course of action for the
learned Magistrate would have been to direct the complainant/petitioner to approach the
court within whose territorial jurisdiction the offence was allegedly committed instead of
rejection of the complaint. This argument has also been taken into consideration in the
forgoing discussion and held the said order to be not intended to reject complaint.
8) The second leg of the argument advanced by the learned Amicus-curiae is that
without complying with the provisions of Section 202 Cr.PC, the learned Magistrate could not
have passed the impugned order. The next argument of the learned Amicus-curiae,
appearing on behalf of the petitioner is that the complaint being under session’s triable
provision of law and since the learned Magistrate has already taken cognizance, he ought to
have committed the case to the court of Sessions after exhausting all required formalities
instead of disposing of the same at his level, vide the impugned order. On visiting the
provisions of Section 202 Cr.PC, it appears that the learned Magistrate ought to have
examined all the witnesses of the complainant, which he did not do, is apparent on the face
of the record. It is also a fact not disputed at the bar that the impugned order was passed by
the learned Magistrate, after he had taken cognizance, meaning thereby, that he has
reviewed his own order which he is not legally entitled to do. The appropriate course of
action for him would have been, in the given situation, to commit the case to the court of
sessions, after exhausting the provisions of Section 202 Cr.PC, as he already had taken
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cognizance of the offence. The learned Sessions Judge, then, would have passed an
appropriate order depending on legal requirement.
9) It appears from the facts narrated above, taken together with non-compliance of the
legal provisions, referred to above, the impugned order is apparently improper as it did not
express the minds of the learned Magistrate in unequivocal terms. On the other hand, it is an
admitted position from the complaint itself that the occurrence took place at Jorhat and while
the occurrence had taken place at Jorhat, the complainant was not on movement from
Morigaon to Jorhat or to any other place. It appears from the materials on record that she
had spent the night, on the date of occurrence, at Jorhat itself. Therefore, the place of
occurrence/offence is Jorhat, and legally, the territorial jurisdiction for the case would have
been Jorhat.
10) Such being the position, considering the conflicting orders passed by the learned
Judicial Magistrate 1st Class, vide the impugned order, the order is set aside and to meet up
the situation, indicated above, this court is of the view that the petitioner should approach
the appropriate forum. The delay in approaching the appropriate forum, considering the
peculiar facts and circumstances of the case, shall not be allowed to be raised at any stage of
the trial.
11) With the above observations and direction, this petition stands disposed of.
12) This court records its appreciation for the assistance rendered by learned Amicus
Curiae. The learned Amicus-curiae be paid an amount of Rs. 7,500/- as remuneration.
JUDGE
Comparing Assistant
