Scope of the chapter
Sections 177 to 189 contained in Chapter XIII, Criminal Procedure Code,
1973 (CrPC) enunciate the general principles for determining which shall
be the proper court to inquire into or try an offence.
The Section 156(1) makes these general rules applicable for deciding
which shall be the proper police station to entertain investigations into an
offence.
The basic rule in the context of local jurisdiction is contained in Section 177
which provides that ordinarily every offence is to be inquired into or tried by a
court within whose local jurisdiction it was committed.
Large number of factors including those contained in Sections 177, 178 and
181 Cr. PC affect the jurisdiction of court.
The same principle has been adopted by our courts in granting anticipatory
bail.
As early as in 1994, the Punjab and Haryana High Court in Harjit Singh v.
Union of India opined that anticipatory bail can be granted by the High Court
/ Sessions Court having territorial jurisdiction over the place of commission
of the offence.
The sections namely Sections 178 to 186 and Section 188, considerably
enlarge the ambit of the local jurisdiction in which inquiry or trial of the
offence might take place.
Strict adherence to the basic rule incorporated in Section 177 is not
mandatory. It has many exceptions.
These exceptions are intended to minimise the inconvenience that might be
caused by the Strict adherence to the basic rule incorporated in Section 177.
The rules laid down in these sections "are not mutually exclusive but
cumulative in effect and intended to facilitate the prosecution of offenders by
providing a wider choice of courts for initiating the inquiry or trial".
The provisions of Sections 177 to 189 are applicable to inquiries or trials of
offences. They do not apply to proceedings under Chapter VIII (Security for
keeping the peace and for good behaviour), Chapter IX (Order for maintenance
of wives, children and parents), Chapter X (Maintenance of Public Order and
Tranquility).
Basic rule regarding place of inquiry and trial
Section 177 of the Code states :
177. Ordinary place of inquiry and trial. Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.
The rule is one of expediency, Considering the size of the country, the distance of courts from the place of crime and difficulties of transport in the interior, it would seem expedient and desirable that the inquiry and trial should ordinarily take place in the vicinity of the crime.
As the witnesses can reasonably be expected to be available in that locality, It would be convenient both to the prosecution and to the defence if the trial took place in the court of that locality.
It also promotes the social security.
Special Comments
If the court has take the cognizance of the offence as per Section 177, and
thereafter a change takes place in the territorial jurisdiction of such court,
a question may arise as to whether the court loses its jurisdiction to try that
offence. It has been held that the jurisdiction of the court to try such offence
shall remain unaffected by any subsequent change in the territorial
jurisdiction of the court.
If the question of jurisdiction is raised, the trial can be commenced only after
deciding that question. Otherwise Section 177 will become impractical.
A Magistrate cannot be indifferent on the question of jurisdiction simply
because Section 462. is there to save decisions of courts which had no
territorial jurisdiction to try the case.
The application of Section 462 arises only after the decision is rendered by a court.
The place of inquiry or trial of an offence is primarily to be determined
by the averments contained in the complaint or the police report (charge-
sheet) as to where and how the offence was committed.
In the absence of any positive proof to the contrary, the court has to be
presumed to have jurisdiction on the basis of the facts made out by the
averments.
Rules to cover cases where the basic rule is difficult to apply
Section 178 of the Code defines various rules for the said purpose:
178. Place of inquiry or trial.
(a) When it is uncertain in which of several local areas an offence was committed, or
(b) where an offence is committed, partly in one local area and partly in another, or
(c ) where an offence, is a continuing one, and continues to be committed in more local areas than one, or
( d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.
Special Comments
The words "local areas" mean obviously the local areas to which the Code
applies and not any local area in a foreign country.
If an offence is commenced within the local jurisdiction of one court and is
completed within the local jurisdiction of another court, such an offence may
be tried by either of the two courts.
A conspiracy to commit an offence has been treated as a continuing
offence.
The offence of kidnapping from lawful guardianship is not a continuing
offence.
The offence of abduction is a continuing one.
Travelling without a valid passport is a continuing offence.
Offence triable where act is done or consequences ensued
Section 179 of the Code states :
179. Offence triable where act is done or consequence ensues. When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.
Illustrations
(I) A is wounded within the local jurisdiction of court X, and dies within the local jurisdiction of court Y. The offence culpable homicide of A may be inquired into or tried by X or Y.
(II) A is put in fear of injury within the local jurisdiction of court X, and is thereby induced within the local jurisdiction of court Y to deliver property to the person who put him in fear. The offence of extortion committed on A may be inquired into or tried either by X or Y.
Section 179 contemplates that the accused has done an act and a consequence has followed from such act, and that the accused is being tried for the offence as result of both that act and the consequence.
Even the place(s) where the consequence of the criminal act ensues would
be relevant to determine the court of competent jurisdiction.
The words "any consequence which has ensued, have been held to mean only such a consequence as is a necessary ingredient of the alleged offences. These words do not cover a more remote consequence.
The offence of forgery and fabricating of a false document was committed within the local jurisdiction of court X. The said document had stated that the resignation of the complainant was accepted and that his services were terminated. On the complainant's request a copy of that document was sent to the complainant who received the same within the local jurisdiction of court Y. It was held that as the fact of could not be considered as a consequence necessary to constitute the offence, court Y could not have any jurisdiction to try that offence.
Place of trial where act is offence by reason of relation to other offence
Section 180 of the Code states :
180. Place of trial where act is an offence by reason of relation to other offence. When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence, the first mentioned offence may be inquired into or tried by a Court within whose local jurisdiction either act was done.
The following fact-situations will illustrate the above principle:
(1) A charge of abetment may be inquired into or tried either by the court within whose local jurisdiction the abetment was committed or by the court within whose local jurisdiction offence abetted was committed. However, if the criminal act for which the abetment is given is not in fact actually committed , the principle enunciated above cannot apply and the offence of abetment can be tried only at a place where it has been committed.
(ii) A charge of receiving or retaining stolen goods may be inquired into or tried either by the court within whose local jurisdiction the goods were stolen or by any court within whose local jurisdiction any of them was at any time dishonestly received or retained.
Though the offence of criminal conspiracy and the offence committed
in pursuance of the conspiracy cannot be strictly speaking, covered by
the words "when an act is an offence by reason of its relation to any other
act which is also an offence", yet for other reasons it has been held that
the court within whose local jurisdiction the offence of conspiracy has
been committed would have jurisdiction to try also the offence which has
been committed in pursuance of the conspiracy, despite the fact that the
place of the commission of such consequential offence is outside the local
jurisdiction of such court.
Place of trial in case of certain specific offences
Section 181 of the Code states :
181. Place of trial in case of certain offences.
(1) Any offence of being a thug, or murder committed by a thug, of dacoity, of dacoity with murder, of belonging to a gang of dacoits, or of escaping from custody, may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the accused person is found.
(2) Any offence of kidnapping or abduction of a person may be inquired into or tried by a Court within whose local jurisdiction the person was kidnapped or abducted or was conveyed or concealed or detained.
(3) Any offence of theft, extortion or robbery may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property which is the subject of the offence was possessed by any person committing it or by any person who received or retained such property knowing or having reason to relieve it to be stolen property.
(4) Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person.
(5) Any offence which includes the possession of stolen property may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property was possessed by any person who received or retained it knowing or having reason to believe it to be stolen property.
Special Comments
The first part in each of the sub-sections (1), (3), (4) and (5) of Section 181
is redundant because Section 177 itself provides that every offence shall
ordinarily be inquired into and tried by the court within the local limits
of whose jurisdiction it was committed.
This rule in Section 181(1) is intended to cover the case of an accused person moving from on local area to another area.
Section of the Code of 1898, the alternative place of trial was referred to
as the place where the person charged is.
These words were interpreted by the courts as meaning not only the place where the accused person is found or discovered", but also a place where he is brought under arrest.
In the present Code, the above rule, Section 181(1), refers to the place of alternative jurisdiction as the place where the accused person is found.
The wide interpretation of the words ‘the person charged is’ have been dispensed with.
The deliberate change in the wording of the rule would suggest that the
it saves the accused from illegal arrest or any arrest against his will.
This limits the unlimited choice of the prosecution to charge the accused.
The word ‘conveyed’ does not include conveyance by police or magistraterial authority after arrest.
The requirement is to be determined for the application of the Section 181 (4) is that on the basis of the stipulation, if any, between the parties i.e. the complainant and the accused as to where the goods are to be returned or to be accounted for. In the absence of any such stipulation it would be the place where the goods in question were kept in trust and a breach in respect thereof was committed.
In many cases of criminal breach of trust there may be doubts as to the exact manner, point of time and place where the dishonest misappropriation, conversion, use or disposal was effected.
Though no such doubts ordinarily arise in regard to the place or places where the property in question was received or retained by the accused, these places are not always suitable for launching the prosecution.
Therefore, it has been provided that the offence can even be inquired into or tried by a court within whose local jurisdiction the property was required to be returned or accounted for by the accused person.
In the absence of any such stipulation, it would be the place where the goods in question were kept in trust and a breach in respect thereof was committed.
Where the accused was under a liability to deliver goods at Bangalore
and failed to do so by reason of having committed an offence of criminal
breach of trust as alleged by the complainant, the Bangalore court has
jurisdiction to inquire into and try the alleged offence of criminal breach of trust under the provision of Section 181 (4).
It has been held by courts that there need not be dishonest intention to
property is received quite innocently at one place and is later dishonestly
dealt with in another place, the accused can be tried at the former place,
Where it is uncertain whether the misappropriation took place at place A or at place B, Section 178(a) is supplemental to Section 181(4). That is the offence can be tried at either the place A or place B.
Cheating
Section 182 of the Code States :
182. Offences committed by letters, etc.
(1) Any offence which includes cheating may, if the deception is practised by means of letters or telecommunication messages, be inquired into or tried by any Court within whose local jurisdiction such letters or messages were sent or were received; and any offence of cheating and dishonestly inducing delivery of property may be inquired into or tried by a Court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person.
(2) Any offence punishable under section 494 or section 495 of the Indian Penal Code (45 of 1860 ) may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with his or her spouse by the first marriage 1 or the wife by the first marriage has taken up permanent residence after the commission of the offence].
In some cases of cheating, the offence is caused by making false representations by letters, telegrams, etc. and the victim is induced to deliver property to the accused's agent at a different place. In such cases, as has been held by the Supreme Court, no part of the offence of cheating takes place at the accused person's end and the entire offence of cheating is committed at the deceived person's end.
The trial should be allowed to start at the place where the accused has been carrying on his dishonest practices and reaping the benefit.
The offence of bigamy cannot be made triable in the local area. This would provide undue advantage to the accused person in varios cases in context of both the wives. The rule contained in the Section 177 need to be widened.
The Section 182 (2) has facilitated the wife to file a case permanently at a place where she permanently resided after the commission of the offence.
Place of inquiry or trial when the offence is committed on Journey or Voyage
Section 183 of the Code states :
183. Offence committed on journey or voyage. 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.
In the continuous voyage or journey, it would be difficult to know the exact locality of the actual commission of the offence. The section provides various choices of prosecution.
The section allows the trial at the place of the termination of journey. The section applies for the trial of offences committed in India only.
The words "journey" and "voyage" appear to mean one and the same thing. The section would be applicable only when the journey is continuous and uninterrupted.
Place of trial for offences triable together
184. Place of trial for offences triable together.
Where-
(a) the offences committed by any person are such that he may be charged with and tried at one trial for, each such offence by virtue of the provisions of section 219, section 220 or section 221, or
(b) the offence of offences committed by several persons are such that they may be charged with and tried together by virtue of the provisions of section 223, the offences may be inquired into or tried by any Court competent to inquire into or try any of the offences.
When an accused person under Section 219, 220, or 221 can be charged
with and tried at one trial for all or more offences, it is but reasonable to assume that the venue for the trial can be laid in any local jurisdiction
within which any of those offences may be inquired into or tried under
the abov ementioned rules of Chapter XIII of the Code.
When two or more persons may be charged with and tried together for different
offences under Section 223, the prosecution would have similar choice of
venue for the trial.
Sections 219 to 223 provide exceptions to Section 177, if they do permit the trial of a particular offence along with others in one court.
Power of the State to order cases to be tried in different
Section 185 of the Code states :
185. Power to order cases to be tried in different sessions divisions. Notwithstanding anything contained in the preceding provisions of this Chapter, the State Government may direct that any cases or class of cases committed for trial in any district may be tried in any sessions division:
Provided that such direction is not repugnant to any direction previously issued by the High Court or the Supreme Court under the Constitution, or under this Code or any other law for the time being in force.
The power conferred on the State Government by Section 185 is an
extraordinary power intended to be used only when some consideration
of public interest (e.g. maintenance of public order during the trial of a
sensational case) justifies the holding of a sessions trial in a different sessions trial.
It may be noted that though the proviso to Section 185 restrains the
State Government from passing any such order which is repugnant to
any direction issued earlier by the High Court or the Supreme Court in
this behalf, the High Court or the Supreme Court are, however, free to
give any direction overriding the effect of the order passed by the State
Government under Section 185, in accordance with the provisions of
Sections 406 and 407.
High Court to decide, in case of doubt, district where inquiry or trial shall take place
186. High Court to decide, in case of doubt, district where inquiry or trial shall take place. Where two or more Courts have taken cognizance of the same offence and a question arises as to which of them ought to inquire into or try that offence, the question shall be decided-
(a) if the Courts are subordinate to the same High Court, by that High Court;
(b) if the Courts are not subordinate to the same High Court, by the High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced.
The section does not provide that the court which was the first to take cognizance of the offence, would be the one which ought to inquire into or try that offence.
Section 186 (b) applies only when both the cases are common and they
of the same occurrence or same transaction, and the parties are same, in which case, having regard to the circumstances, the High thin whose local limits of appellate criminal jurisdiction the proceedings were first commenced.
Magistrate power to inquire into an offence committed outside his local jurisdiction
Section 187 of the Code states :
187. Power to issue summons or warrant for offence committed beyond local jurisdiction.
(1) When a Magistrate of the first class sees reason to believe that any person within his local jurisdiction has committed outside such jurisdiction (whether within or outside India) an offence which cannot, under the provisions of sections 177 to 185 (both inclusive), or any other law for the time being in force, be inquired into or tried within such jurisdiction but is under some law for the time being in force triable in India, such Magistrate may inquire into the offence as if it had been committed within such local jurisdiction and compel such person in the manner. hereinbefore provided to appear before him, and send such person to the Magistrate having jurisdiction to inquire into or try such offence, or, if such offence is not punishable with death or imprisonment for life and such person is ready and willing to give bail to the satisfaction of the Magistrate acting under this section, take a bond With or without sureties for his appearance before the Magistrate having such jurisdiction.
(2) When there are more Magistrates than one having such jurisdiction and the Magistrate acting under this section cannot satisfy himself as to the Magistrate to or before whom such person should be sent or bound to appear, the case shall be reported for the orders of the High Court.
It will be seen that though the Magistrate does not take cognizance of the offence in the technical sense, he is empowered by the section to inquire into it as if it had been committed within his local jurisdiction, compel the person to appear before him and bind him to appear before a Magistrate who will have jurisdiction to inquire into the offence.
It may be noted that the power given to the Magistrate under Section 187 is available both in respect of cognizable as well as non-cognizable offences.
The power to grant bail in respect of the offences not punishable with death or imprisonment for life is intended to give the arrested person the benefit of getting bail at or near the place where he is arrested.
This provision cannot affect the Section 75 to 81 of the Code which deal with the execution of the warrants of arrest.
Power to inquire into and try offences committed Outside India
Section 188 of the Code states :
188. Offence committed outside India. When an offence is committed outside India-
(a) by a citizen of India, whether on the high seas or elsewhere; or
(b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been com- mitted at any place within India at which he may be found:
Provided that, notwithstanding anything in any of the preceding sections of this Chapter, no such offence shall be inquired into or tried in India except with the previous sanction of the Central Government.
Section 188 is a non-obstante clause. (notwithstanding anything in any of the preceding sections )
Section 188 controls and governs the provisions contained in Sections 178 to 187.
When an offence is committed by a person outside India as described in
Sotion 188, he can be dealt with (in respect of such offence) at any place
at which he is found.
In such a situation it does not matter whether such person comes voluntarily or in answer to summons or under illegal arrest.
The section is complement to Section 4 IPC and other penal laws which have extraterritorial jurisdiction.
The object of requiring the sanction of the Central Government appears to be to prevent the accused person being tried over again for the same offence in two different places.
This object is secured by refusing to extradite the offender if he is wanted for being tried in a foreign country subsequent to his trial in an Indian court, or by refusing to sanction a prosecution against him if he has been already tried in a foreign country in respect of the same offence.
The section counters colourable trial in a foreign court.
In the case of Mohd. Sajeed K. v. State of Kerala reasoned that the investigation by the police can be initiated under the Section 188 of the Code without previous sanction of the Centre Government.
Section 189 of the Code States :
189. Receipt of evidence relating to offences committed outside India. When any offence alleged to have been committed in a territory outside India is being inquired into or tried under the provisions of section 188, the Central Government may, if it thinks fit, direct that copies of depositions made or exhibits produced before a judicial officer in or for that territory or before a diplomatic or consular representative of India in or for that territory shall be received as evidence by the Court holdings such inquiry or trial in any case in which such Court might issue a commission for taking evidence as to the matters to which such depositions exhibits relate.
Consequences of failure to follow the rules regarding local jurisdiction
At the outset it may be mentioned that the jurisdiction of a criminal court is of two kinds. One has reference to the power of the court to try particular kinds of offences.
This jurisdiction goes to the root of the matter, and if a court which is not empowered to try a particular offence does try that offence, the entire trial shall be void.
Section 461, which deals with irregularities which vitiate proceedings, provides by clause (1) that if any Magistrate not empowered by law in this behalf tries an offender, his proceedings shall be void.
The other type of jurisdiction is what is called territorial or local jurisdiction which is determined according to the rules contained in Sections 177 to 188 of the Code.
Section 462 of the Code provides in this regard :
462. Proceedings in wrong place. No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub- division or other local area, unless it appears that such error has in fact occasioned a failure of justice.
The power to try offences is conferred capability and responsibility of those courts, and higher the capability by the legislature on all courts according to its view with respect to the and sense of responsibility, the larger is the jurisdiction vested in the court over the various offences.
On the other hand, the territorial jurisdiction is provided just for the purpose of convenience keeping in mind the administrative point of view with respect to the work of each court, and the convenience of the parties and the witnesses who have to appear before the court.
Section 462 would apply to only those cases where the trial has proceeded to its termination and the court is satisfied that no failure of justice has been occasioned by the trial having taken place in a wrong court.
A failure of justice does not simply mean an erroneous decision.
Failure of Justice means that the procedure has not been followed which would give the person affected a fair opportunity to defend himself.
Where simply a question of jurisdiction has been decided by the lower revisional court, it cannot be said that reversal of the decision of the lower revisional court shall result in failure of justice.
Section 462 does not entitle the Magistrate to proceed with the trial with his eyes open to the fact that there is no territorial jurisdiction.
Where the objection has been taken at the time of the commencement of the trial no shelter can be taken in behind the Section 462 of the Code.