1982 Supreme(Guj) 141

Gujarat High Court
Judgename :S.B.MAJMUDAR
LILADE SITADE PAVAIYA - Appellant
Versus
STATE - Respondent
Civil Revision 1171 of 1982
Decided On : 09/03/1982

Headnote:(i) Criminal Procedure Code, 1973-Sections-156(1), 184(b) and 223(d) Jurisdiction of Police Station to investigate- Complaint by minor that accused 1 and 2 kidnapped him from Baroda with an object to make him eunuch (Hijra)-Accused 3 to 5 committed offence of emasculation at Kalol (Mehsana Distt.)Baroda Police investigating into-Allegation of accused 3 to 5-as final offence of emasculation has happened in Mehsana District, Baroda Police has no authority to investigate-Whether correct? (No)

       Held it prima facie appears that the act of kidnapping is so closely inter-twined with the final act of emasculation that both these offences appear to be part and parcel of a common design and are components of the same transaction. (Para 8)

       Present accused petitioners are thus covered by section 223(d) Criminal Procedure Code? (Para 11)

       As the relevant averments in the complaint which have got to be taken as true at this stage, clearly indicate that various offences are alleged to have been committed by different concerned accused as part and parcel of a comprehensive one and the transaction. It must, therefore, be held that on a combined reading of sections 156(1), 184(b) and section 223(d), the criminal court at Baroda has ample jurisdiction to try the offences alleged against the concerned accused. Automatically, the police at Baroda would get parallel jurisdiction to investigate into these offences. The only contention raised by Mr. Barot in support of the petition is, therefore, repelled. (Para 12)

       (ii) Criminal Procedure Code, 1973 - Sections 156(2) and 462-lmmunity to investigation by police officer on the ground of absence of power - Whether pending investigation can be thwarted on the ground of absence of power of concerned officer? (No)

       Held that any sort of irregularity or illegality in the conducting of investigation by any police officer with respect to any type of empowerment under section 156(1) including territorial jurisdiction, are all taken care of by the provisions of section 156(2). The net result therefore, is that even assuming that a police officer in charge of a police station seeks to investigate into an offence which is beyond his territorial jurisdiction or alternatively, an officer other than the officer in charge of the police station seeks to investigate into an offence which otherwise falls within the territorial jurisdiction of the said police station in either case, section 156(2) immunises this investigation against any possible attack on the ground of absence of power with the concerned investigating officer. (Para 14)

       Held further the combined reading of section 156(2) and section 462 of the Code, leaves no room for doubt that errors in conducting of investigation or in conducting of inquiries or trials which have nexus with territorial jurisdiction are not treated by the legislature to be fatal errors but mere irregularities which can be cured and can have clinching effect only when failure of justice and material prejudice are demonstrated by the concerned accused. If the legislature in its wisdom has insulated inquiries and trials before the criminal courts against the attacks on the ground of absence of territorial jurisdiction, save and except in a given contingency where failure of justice and material prejudice are demonstrated, it would be too much to hold that at prior stage of investigation, a police officer who is investigating into the offence which does not fall within his territorial jurisdiction, would be required to be totally prohibited from proceeding with investigation on the ground of that some of the offences into which he is investigating fall outside the ambit of his local jurisdiction. Even otherwise section 156(2) which is a corresponding provision to section 462 which takes care of inquiries and trials can certainly be held to be a reflection of legislative intention that even pending investigation in such cases would not be thwarted on the ground of absence of power of the concerned officer. (Para 15)

       (iii) Constitution of India, 1950-Article 21-Deprivation of personal liberty under provisions of Criminal Procedure Code 1973-Whether violates Article 21? (No)

       Held when a police officer investigates into alleged offences against the accused, no question of deprivation of life arises. But the question of deprivation of personal liberty can squarely arise if such police officer arrests any accused without warrant in a cognizable case. But even then, the Article itself provides that, such type of attack on personal liberty may become permissible if the procedure established by law is followed by the concerned authority. It cannot be disputed and in fact it was not disputed by Mr. Barot that the Code of Criminal Procedure does establish a procedure according to law.

       Finally held there appears no room for doubt that both on merits as well as on to ground of immunity under section 15612), the impugned investigation at Baroda cannot be faulted in the present proceedings at this stage and consequently the alleged violation of Article 21 pales into total insignificance. (Para 17)