Investigation, territorial jurisdiction, and transfer under Section 406 CrPC: Some thoughts

Quite often, the issue of territorial jurisdiction for registration of a First Information Report (FIR) comes to surface. Police are accused of junking registration of FIR in appropriate cases on the pretext of lack of territorial jurisdiction.

Now the seminal issue arises as to where should an FIR be registered; what happens if FIR is registered at a place where no offence has taken place?

As per Code of Criminal Procedure, 1973 (CrPC), FIR is the starting point of an investigation (vide Section 154 CrPC). Chapter XII of CrPC deals with 'Information to the Police and Their Powers to Investigate'. According to Section 154, every information of a cognizable offence has to be reduced to writing by the officer in charge of a police station, where the information has been given.

When Section 154 of CrPC deals with registration of FIR in case of a cognizable offence, Section 155 of CrPC takes care of the process of registration of the substance of information in case of a non-cognizable offence. From a combined reading of Sections 154 and 155 , it would be evident that the Legislature in its wisdom has omitted the term “of the commission within the limits of such station of a non-cognizable offence” in Section 154(1) of Cr PC.

It is, therefore, evident that whereas for registration of a non-cognizable offence, the territorial jurisdiction of the police station is a pre-requisite under Section 155(1) of CrPC, no such territorial jurisdiction can be an issue for registration of an FIR under Section 154. The concept that “within whose local jurisdiction the offence is committed” has not been deliberately stated by the Legislature.

Apart from that, under Section 156(2) of CrPC, no proceeding of a police officer of such case at any stage can be called into question on the ground of lack of competence/authority, which may inter alia include territorial jurisdiction.

The Union Ministry of Home Affairs vide communication February 6, 2014, while placing reliance on the dictum of the Supreme Court in Lalita Kumar v. State of UP, inter alia directed registration of FIR irrespective of territorial jurisdiction through Zero FIR. It had advised that “when it becomes apparent that even if the offence has been committed outside the jurisdiction of the police station, Zero FIR would be registered and the FIR will then be transferred to the appropriate police station as per Section 170 of CrPC."

It is only when an FIR is registered, the Officer in Charge of the Police Station is required to forward the same “to a Magistrate empowered to take cognizance of such offence upon a police report” (vide Section 157). A further question may come up asthe import of the aforesaid phrase is vulnerable to various interpretations. This has to be borne in mind as there may be instances where police forwards reports of crimes committed to magistrates. For example, a report under Section 174 or Section 202(1) of CrPC.

Before delving into such issues, it may be mentioned that as per Section 173(2), once an investigation is concluded, the police intends to file a report “to a Magistrate empowered to take cognizance of such offence upon a police report”. Such report is thereafter judicially scrutinized by taking cognizance under Section 190(1)(b) of CrPC, which is commonly known in the judicial pantheon as taking of cognizance on a police report.

The phrase, “to a Magistrate empowered to take cognizance of such offence upon a police report”, it is to be understood as meaning that the court requires to have requisite territorial jurisdiction for taking cognizance of an offence on police report.

Even for taking cognizance under Section 190 of CrPC, a magistrate need not necessarily have territorial jurisdiction. In other words, cognizance by a court not having territorial jurisdiction can never be called into question. This will further be evident from the fact that when a court taking cognizance subsequently finds that it lacks territorial jurisdiction to try, the court may pass an order under Section 201 of CrPC, thereby returning the case to the complainant with an endorsement for presentation before the appropriate forum.

Even after order of summoning under Section 204 of CrPC (which is relatively at a belated stage of an enquiry), if the court finds that the offence complained of had been committed outside the territorial jurisdiction of the court, the court may direct the parties to appear before the court having appropriate jurisdiction (vide Section 187 of CrPC).

These are some of the mechanisms provided in CrPC, in order to deal with the issue of territorial jurisdiction at different stages of an inquiry or trial. All these provisions in no uncertain terms entail that the phrase, “to a Magistrate empowered to take cognizance of such offence upon a police report” has very little to do with territorial jurisdiction.

During investigation, an arrested accused is required to be produced before “the nearest Magistrate” (vide Section 57/167/81 of CrPC). Here, the word ‘nearest Magistrate’ does not envisage a court nearest to the place of occurrence of the offence, but a court nearest to the place where investigation has commenced or the arrest is made.

Besides that, under Section 460(e) of CrPC, if a court not being empowered by law to take cognizance under Section 190(1)(a) or 190(1)(b) of Cr PC, “erroneously” takes cognizance, the taking of cognizance and all consequential proceedings arising out of such cognizance cannot be interfered with. As per Section 462 of CrPC, no final order of conviction or sentence can be set aside only on the ground of lack of territorial jurisdiction unless it appears that such error has in fact occasioned a failure of justice.

Chapter XIII of CrPC deals with jurisdiction of criminal court. Chapter XIII of CrPC comprises thirteen sections from Section 177 to Section 189. Section 177 states that

“Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed”.

Inquiry has been defined under Section 2(g) of CrPC to mean every inquiry other than trial conducted by a magistrate or a court. Investigation has been defined under Section 2(h) as all the proceedings for collection of evidence by a police officer. ‘Trial’, has not been defined under CrPC. Lexicologically, ‘trial’ means a judicial examination of a cause in accordance with the law of the land. Hence, for an inquiry or trial, it is the court which is the focal point whereas for an investigation, it is the police officer. Chapter XIII of CrPC has therefore, no application in case of investigation. (vide Trisuns Chemical Industry v. Rajesh Aggarwal.)

The heading of Chapter XIV of CrPC is 'Conditions requisite for initiation of proceedings'. The said chapter commences with Section 190, which deals with cognizance. Chapter XVI deals with 'Commencement of Proceedings before Magistrate'. Section 204, which enumerates the provision of process (generally in the form of summons or warrant), is the opening section of the said Chapter.

Now, applicabilty of 190 CrPC comes into play once an investigation is completed and a final report is taken on board. For registration of an FIR under Section 154, and forwarding of the same to the Magistrate under Section 157, it is not imperative that the offence must take place therein. However, once the investigation is over, if the investigating officer thinks at the conclusion that the cause of action has not arisen within his territorial jurisdiction, then he will forward the final report case to the magistrate concerned empowered to take cognizance. (vide Manoj Kumar Sharma v. State of Chhattisgarh).

The contention that an investigation cannot be conducted by an officer having no territorial jurisdiction was repealed by the Supreme Court of India (vide Rasiklal Dalpatram Thakkar v. State of Gujarat.)

Now, the second issue comes as to availability of the provision under Section 406 of CrPC for transferring an investigation.

Under Section 406 of CrP C, the Apex Court can transfer “any particular case or appeal” from one High Court to another High Court or from one criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court.

Though the term “case” has not been defined under CrPC, yet the same has been judicially defined to be a judicial proceeding pending before a court of law for determination of an issue. After completion of investigation, the investigating officer can file a final report which may be a chargesheet or a closure report. Once such a report is filed under Section 173 of CrPC, under which a court of law derives jurisdiction to inter alia take cognizance under Section 190(1)(b).

It is, therefore, evident that taking of cognizance is the starting point of a judicial proceeding or a case. And till such time no cognizance is taken on the chargesheet, no judicial proceeding has said to have been commenced (vide Bhimappa Basappa Bhu Sannavar v. Laxman Shivarayappa Samagouda & Ors).

A ‘case’ does not include any pending investigation.Thus Section 406 of CrPC cannot be triggered to transfer the said investigation. The Apex Court in Dr. Ramchandra Singh Sagar & Anr. v. State of TN & Anr, while adjudicating an application under Section 406 CrPC, observed,

“….But it does not clothe this Court with the power to transfer investigations from one police station to another in the country simply because the first information or a remand report is forwarded to a Court…..”

We will be failing in our duty if we don’t mention that the predominant trend of judgments of the Apex Court is to apply Chapter XIII of CrPC to ascertain the situs of offence for conducting an investigation under Chapter XII of CrPC [Naresh Kavarchand Khatri v. State of Gujarat, Satvinder Kaur v. State (Govt. of NCT of Delhi), Y Abraham Ajit and Ors v. Inspector of Police Chennai and Anr.]

The authors are advocates practicing at the Calcutta High Court.