# MS. P1 xxx v. STATE OF UTTARAKHAND & ANR

- **Citation:** [2022] 15 S.C.R. 324
- **Court:** Supreme Court of India
- **Decided:** 2022-06-16
- **Case number:** Criminal Appeal No. 903 of 2022
- **Bench:** Dinesh Maheshwari, Vikram Nath
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ms-p1-xxx-v-state-of-uttarakhand-anr-35567
- **Pages:** 34

## Headnote

Code of Criminal Procedure, 1973 - ss.177-180, 184, 218,
220 - Penal Code, 1860 - ss.376, 504, 506 - Allegations against
respondent No.2-accused consisting of offences of distinct nature,
one set of allegations is of the offence of rape at Delhi (s.376, IPC)
and the other set of allegations is of hurling abuses and extending
threat on phone calls received by the appellant at her village in
District Chamoli (ss.504, 506 IPC), if could be said to be 'one series
of acts so connected together as to form the same transaction' for
the purpose of trial together in terms of s.220, CrPC - Held: On
13.11.2015, the appellant and the respondent no.2 were engaged
for matrimonial alliance at their village Dangidhar, Tehsil Gairsain,
District Chamoli but, the proposal of marriage did not materialize -
However, the alleged acts of sexual relationship took place at Delhi
in the months of February and March, 2016 - The other alleged
acts had been of the respondent no.2 hurling abuses and extending
threats in or around the month of November, 2016, which the
appellant received over telephone at her village - The acts in question
were neither proximate in time nor proximate in place; they were
not of continuity either-It is difficult to find continuity of actions
and community of purpose or design in two different acts leading
to two different set of offences, i.e., one u/s.376 and the other under
ss.504/506- Thus, on facts, the alleged offence u/s.376 and the
other offences u/ss.504 and 506 do not fall within the ambit of 'one
series of acts so connected together as to form the same transaction'
1 Looking to the subject matter of this appeal, which involves the accusations pertaining
to the offence of rape punishable under Section 376 of the Indian Penal Code, 1860, we
have masked the identity of the appellant and substituted her name by the expression
"Ms. P" in the title as also in the body of this judgment, wherever occurring.
The office shall take care while issuing the relevant copies to not disclose the
identity of the appellant.
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for the purpose of trial together in terms of s.220 CrPC - Thus, the
Sessions Judge, Chamoli rightly discharged the respondent no.2 of
the offence u/s.376 for want of territorial jurisdiction.
Constitution of India - Article 20 -Code of CriminalProcedure,
1973 -s.300 - Allegations against the respondent No.2-accused
were of offence u/s.376 as allegedly committed in Delhi and u/ss.504
and 506 IPC where the respondent no.2 allegedly hurled abuses
and extended threats which the appellant received over telephone
at her village in Chamoli, Uttarakhand - Sessions Judge, Chamoli
while discharging the respondent no.2 of the offence u/s.376 on
the ground of lack of territorial jurisdiction transferred the matter
to the Court of Judicial Magistrate First Class, Gairsain, District
Chamoli for trial of the respondent No. 2 in relation to the remaining
offences u/ss.504 and 506 IPC wherein respondent no.2 was
acquitted - Held: Respondent No.2 having gone through the trial
in relation to offences u/ss.504 and 506 IPC and having been
acquitted, cannot be subjected to another trial for the same charges
on the same facts - Any such process would be in blatant disregard
of the settled principles which disapprove double jeopardy and are
precisely contained in Article 20(2), Constitution of India as also
s.300, CrPC -Protection u/clause (2) of Article 20 of the Constitution
of India is clear and unambiguous.
Code of Criminal Procedure, 1973 - s.461(1) -Segregation
of charge of the offence u/s.376, IPC from offences u/ss.504, 506
IPC - Accused-respondent No.2 acquitted of offences u/ss.504,
506IPC - Plea of State that the segregation of charge of the offence
u/s.376 IPC had been erroneous and because of this error, the matter
went to trial before the Judicial Magistrate for the offences u/ss.504
and 506 IPC though the entire matter ought to be tried in the Court
of Sessions - Held: Rejected - There had been no erro

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SUPREME COURT REPORTS
[2022] 15 S.C.R.
[2022] 15 S.C.R. 324
 MS. P1 xxx
v.
 STATE OF UTTARAKHAND & ANR.
(Criminal Appeal No. 903 of 2022)
JUNE 16, 2022
[DINESH MAHESHWARI AND VIKRAM NATH, JJ.]
Code of Criminal Procedure, 1973 - ss.177-180, 184, 218,
220 - Penal Code, 1860 - ss.376, 504, 506 - Allegations against
respondent No.2-accused consisting of offences of distinct nature,
one set of allegations is of the offence of rape at Delhi (s.376, IPC)
and the other set of allegations is of hurling abuses and extending
threat on phone calls received by the appellant at her village in
District Chamoli (ss.504, 506 IPC), if could be said to be 'one series
of acts so connected together as to form the same transaction' for
the purpose of trial together in terms of s.220, CrPC - Held: On
13.11.2015, the appellant and the respondent no.2 were engaged
for matrimonial alliance at their village Dangidhar, Tehsil Gairsain,
District Chamoli but, the proposal of marriage did not materialize -
However, the alleged acts of sexual relationship took place at Delhi
in the months of February and March, 2016 - The other alleged
acts had been of the respondent no.2 hurling abuses and extending
threats in or around the month of November, 2016, which the
appellant received over telephone at her village - The acts in question
were neither proximate in time nor proximate in place; they were
not of continuity either-It is difficult to find continuity of actions
and community of purpose or design in two different acts leading
to two different set of offences, i.e., one u/s.376 and the other under
ss.504/506- Thus, on facts, the alleged offence u/s.376 and the
other offences u/ss.504 and 506 do not fall within the ambit of 'one
series of acts so connected together as to form the same transaction'
1 Looking to the subject matter of this appeal, which involves the accusations pertaining
to the offence of rape punishable under Section 376 of the Indian Penal Code, 1860, we
have masked the identity of the appellant and substituted her name by the expression
"Ms. P" in the title as also in the body of this judgment, wherever occurring.
The office shall take care while issuing the relevant copies to not disclose the
identity of the appellant.
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for the purpose of trial together in terms of s.220 CrPC - Thus, the
Sessions Judge, Chamoli rightly discharged the respondent no.2 of
the offence u/s.376 for want of territorial jurisdiction.
Constitution of India - Article 20 -Code of CriminalProcedure,
1973 -s.300 - Allegations against the respondent No.2-accused
were of offence u/s.376 as allegedly committed in Delhi and u/ss.504
and 506 IPC where the respondent no.2 allegedly hurled abuses
and extended threats which the appellant received over telephone
at her village in Chamoli, Uttarakhand - Sessions Judge, Chamoli
while discharging the respondent no.2 of the offence u/s.376 on
the ground of lack of territorial jurisdiction transferred the matter
to the Court of Judicial Magistrate First Class, Gairsain, District
Chamoli for trial of the respondent No. 2 in relation to the remaining
offences u/ss.504 and 506 IPC wherein respondent no.2 was
acquitted - Held: Respondent No.2 having gone through the trial
in relation to offences u/ss.504 and 506 IPC and having been
acquitted, cannot be subjected to another trial for the same charges
on the same facts - Any such process would be in blatant disregard
of the settled principles which disapprove double jeopardy and are
precisely contained in Article 20(2), Constitution of India as also
s.300, CrPC -Protection u/clause (2) of Article 20 of the Constitution
of India is clear and unambiguous.
Code of Criminal Procedure, 1973 - s.461(1) -Segregation
of charge of the offence u/s.376, IPC from offences u/ss.504, 506
IPC - Accused-respondent No.2 acquitted of offences u/ss.504,
506IPC - Plea of State that the segregation of charge of the offence
u/s.376 IPC had been erroneous and because of this error, the matter
went to trial before the Judicial Magistrate for the offences u/ss.504
and 506 IPC though the entire matter ought to be tried in the Court
of Sessions - Held: Rejected - There had been no error in
segregation of the charge of the offence u/s.376 IPC - This line of
submissions, questioning the validity of the proceedings before the
Judicial Magistrate, remains baseless and is rather misplaced.
Words & Phrases - "same transaction"- Discussed - Tests to
be applied for determining the question as to whether two or more
acts constitute the same transaction.
 MS. P xxx v. STATE OF UTTARAKHAND & ANR.
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Dismissing the appeal, the Court
HELD: 1.1 The provisions of Section 178 CrPC essentially
deal with a singular offence which is either partly committed in
one area and partly in another; or continues to be committed in
more local areas than one; or it consists of several acts done in
different local areas; or when it is uncertain of which of the several
areas it has been committed. This provision primarily operates
in relation to one and the same offence, which gets bifurcated
into, or is spread over, different local areas because of continuing
acts or different acts, one after another, like the offences of
Section 498-A or Section 406 IPC in the referred cases. Then, in
the eventuality of an act being an offence for anything which has
been done and consequence that has ensued, as per Section 179
CrPC, the offence could be tried by a Court within whose
jurisdiction the act has been done or where the consequence of
such an act has ensued. Further, as per Section 180 CrPC, when
an act is an offence because of its relation to any other act which
is also an offence, the former could be tried by a Court within
whose local jurisdiction either of the act is done. These provisions
provide exception to the normal rule envisaged by Section 177
CrPC that every offence shall ordinarily be inquired into and tried
by a Court within whose local jurisdiction it was committed. [Para
19.2][349-A-D]
1.2 Whether the series of acts as alleged in the present
case could be said to be so connected together as to form the
same transaction is a pure question of fact and has been decided
by the learned Sessions Judge against the appellant essentially
on the considerations that the place of occurrence of alleged
offence of rape was at Delhi; the offence of rape was not a
continuing offence; and alleged threats given by the respondent
No. 2 to the appellant on phone were not constituting such offences
as to form a series of acts with the first-mentioned offence of
rape. This Court has no hesitation in endorsing the views of the
learned Sessions Judge on the facts of the present case. In the
present case, according to the appellant, her engagement with
the respondent No. 2 took place on 13.11.2015 at village
Dangidhar, Tehsil Gairsain, District Chamoli; later on, the
accused-respondent No. 2 asked her to come to Delhi for
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purchasing and she did so, albeit reluctantly and on the alleged
threat of the accused-respondent No. 2 to break the engagement;
from 21.02.2016 to 24.02.2016, the accused- respondent No. 2
allegedly had had sexual intercourse with the appellant against
her wishes and on the threat of dropping the matrimonial alliance;
the accused later on allegedly asked her to bring Rs. 25 lakhs for
construction of house and he would marry only upon receiving
the money; the appellant's mother filed a complaint at Police
Station Gairsain where the accused-respondent No. 2 allegedly
filed an affidavit on 01.11.2016 assuring to marry the appellant in
the month of December, 2016; however, he did not marry the
appellant and instead, hurled abuses and threatened to kill her.
As per the statement recorded by the appellant under Section
164 CrPC, she had also visited Delhi on 23.03.2016 on the asking
of the accused-respondent No.2 and at that time, the accused
made physical relationship twice with her consent, which was
given on the pretext of marriage. [Paras 21 and 22][352-G-H;
353-A-E]
1.3 A close look at the alleged events/acts bring to fore the
basic feature that on 13.11.2015, the appellant and the respondent
No. 2 were engaged for matrimonial alliance at their village
Dangidhar, Tehsil Gairsain, District Chamoli but, the proposal of
marriage did not materialise. However, the alleged acts of sexual
relationship took place at Delhi in the months of February and
March, 2016. The other alleged acts had been of the respondent
No. 2 hurling abuses and extending threats in or around the month
of November, 2016, which the appellant received over telephone
at her village. The acts in question were neither proximate in
time nor proximate in place; they were not of continuity either.
Significantly, while the appellant had alleged that she submitted
to the sexual acts because of the threat by the respondent No.2
to snap the proposed alliance but it had not been her case that
the respondent No. 2 attempted to coerce her into the same
physical relationship while hurling abuses or threatening to kill
at the later part of time. Thus, it is difficult to find continuity of
actions and community of purpose or design in two different acts
leading to two different set of offences, i.e., one under Section
376 IPC and the other under Sections 504/506 IPC. Putting it
differently, so far as the act leading to the offence of rape under
 MS. P xxx v. STATE OF UTTARAKHAND & ANR.
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Section 376 IPC is concerned, even as per the allegations of the
appellant, that particular act was a completed one and the original
design of subjecting the appellant to physical relations was
accomplished at Delhi in the months of February and March, 2016.
As noticed, there is no allegation of such an activity having
continued later or having taken place at Chamoli or even any
threat having been extended to the appellant to again submit to
such an activity. Viewed from this angle too, the completed act
concerning one offence (Section 376 IPC) could not have been
connected with the other acts leading to other offences. On the
facts of this case, the offence under Section 376 IPC as allegedly
committed at Delhi, being different and distinct than the other
offences and being not of same transaction, could not have been
tried by the Courts at Chamoli. Therefore, the order passed by
the learned Sessions Judge calls for no interference. [Paras 22.1
and 23][353-F-H; 354-A-C, E-F]
Mohan Baitha and Ors. v. State of Bihar and Anr. (2001)
4 SCC 350; Anju Chaudhary v. State of Uttar Pradesh
and Anr. (2013) 6 SCC 384 : [2012] 13 SCR 901 -
relied on.
1.4 Another aspect of the matter pertains to the impact,
implication and consequences of the judgment and order dated
01.05.2019 as passed by the Judicial Magistrate First Class,
Gairsain, District Chamoli in Criminal Case No. 137 of 2017,
whereby the accused-respondent No. 2 has been acquitted of the
offences under Sections 504 and 506 IPC, as also the validity of
such proceedings before the learned Judicial Magistrate. It has
been suggested on behalf of the respondent No. 1-State that the
segregation of charge of the offence under Section 376 IPC had
been erroneous and because of this error, the matter went to
trial before the learned Judicial Magistrate for the offences under
Sections 504 and 506 IPC though the entire matter ought to be
tried in the Court of Sessions. Section 461 CrPC has been referred
to in that regard. Although, for what has been discussed and held
hereinbefore, there had been no error in segregation of the charge
of the offence under Section 376 IPC, yet it need be stated that
this line of submissions, questioning the validity of the
proceedings before the learned Judicial Magistrate, remains
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baseless and is rather misplaced.It has been suggested on behalf
of the respondent No. 1-State that the segregation of charge of
the offence under Section 376 IPC had been erroneous and
because of this error, the matter went to trial before the learned
Judicial Magistrate for the offences under Sections 504 and 506
IPC though the entire matter ought to be tried in the Court of
Sessions. Section 461 CrPC has been referred to in that regard.
Although, for what has been discussed and held hereinbefore,
there had been no error in segregation of the charge of the offence
under Section 376 IPC, yet it need be stated that this line of
submissions, questioning the validity of the proceedings before
the learned Judicial Magistrate, remains baseless and is rather
misplaced. [Para 24 and 24.1][354-F-H; 355-A-B]
1.5 So far as the offences under Sections 504 and 506 IPC
are concerned, it cannot be said that the said Judicial Magistrate
was not empowered by law to try these offences. Rather, the
offence under Section 504 IPC is triable by any Magistrate. In
the present case, the alleged threat was to cause death which
relates to Part II of Section 506 IPC and is triable by a Judicial
Magistrate of First Class. It is not the case that the Magistrate
concerned who had tried the matter was in any way lacking in
power and authority to try the offences under Sections 504 and
506 IPC. The validity and correctness of the order of segregation
of the charge under Section 376 IPC is a matter entirely different
but until the said order was in operation, the matter had to go to
the trial before the said Magistrate and he was bound to proceed
with the same. Hence, this contention on behalf of the respondent
No. 1-State stands rejected. The accused-respondent No. 2 having
gone through the trial in relation to offences under Sections 504
and 506 IPC and having been acquitted, cannot be subjected to
another trial for the same charges on the same facts. Any such
process would be in blatant disregard of the settled principles
which disapprove double jeopardy and are precisely contained in
Article 20(2) of the Constitution of India as also Section 300 of
the Code of Criminal Procedure, 1973. The protection under
clause (2) of Article 20 of the Constitution of India is clear and
unambiguous. On the facts and in the circumstances of present
case, even if respondent No. 2 is acquitted of charges under
 MS. P xxx v. STATE OF UTTARAKHAND & ANR.
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Sections 504 and 506, he could be tried by the jurisdictional
Sessions Court in respect of alleged offence of rape under Section
376 IPC, because this offence could not have been tried by the
Judicial Magistrate First Class. However, he cannot be sent to
trial again for offences under Sections 504 and 506 IPC in any
event. On the facts and in the circumstances of this case, the
alleged offence under Section 376 IPC and the other offences
under Sections 504 and 506 IPC do not fall within the ambit of
'one series of acts so connected together as to form the same
transaction' for the purpose of trial together in terms of Section
220 CrPC. Thus, the learned Sessions Judge, Chamoli had rightly
discharged the accused-respondent No. 2 of the offence under
Section 376 IPC for want of territorial jurisdiction. [Paras 24.1.1,
24.2, 24.3 and 25][355-D-H; 356-A; 357-D-F]
Satvinder Kaur v. State (Govt. of NCT of Delhi) and
Anr. (1999) 8 SCC 728 : [1999] 3 Suppl. SCR 348;
Sunita Kumari Kashyap v. State of Bihar and Anr. (2011)
11 SCC 301 : [2011] 6 SCR 83 - distinguished.
State of Punjab v. Gurmit Singh and Ors. (1996) 2 SCC
384 : [1996] 1 SCR 532 - referred to.
Case Law Reference
[1999] 3 Suppl. SCR 348
distinguished
Para 11
[1996] 1 SCR 532
referred to
Para 11.1
[2011] 6 SCR 83
distinguished
Para 13.1
(2001) 4 SCC 350
relied on
Para 20.1
[2012] 13 SCR 901
relied on
Para 20.2
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
903 of 2022.
From the Judgment and Order dated 25.09.2018 of the High Court
of Uttarakhand at Nainital in Criminal Revision No. 42 of 2018.
Abhimanyu Jhamba, Ms. Thonpinao Thangal, Ms. Hatneimawi,
Ashish Jhamb, Ms. Hemlata Ranga, Ms. Manveen Sachdeva, Samir Ali
Khan, Advs. for the Appellant.
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Jatinder Kumar Bhatia, Ashutosh Kumar Sharma, Satyajit A.
Desai, Mrs. Anagha S. Desai, Siddharth Gautam, Himanshu Sharma,
Advs. for the Respondents.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
 Leave granted.
2. This appeal is directed against the order dated 25.09.2018 as
passed by the High Court of Uttarakhand at Nainital in Criminal Revision
Petition No. 42 of 2018 whereby, the High Court declined to interfere
with the order dated 28.10.2017, as passed by the Sessions Judge, Chamoli
in Sessions Trial No. 8 of 2017, discharging the accused-respondent No.
2 of the offence under Section 376 of the Indian Penal Code, 18602 on
the ground of lack of territorial jurisdiction with liberty to the prosecution
to proceed against the accused in the appropriate Court while also
directing transfer of the case in relation to the other offences under
Sections 504 and 506 IPC to the Court of Judicial Magistrate First Class,
Gairsain, District Chamoli.
3. The relevant background aspects and factual matrix of the
case are not of much complications, but the operation of law, with regard
to territorial jurisdiction for the offence pertaining to Section 376 IPC
and segregation of charges, calls for examination in this appeal with
reference to the question as to whether the said offence under Section
376 IPC and the other offences under Sections 504 and 506 IPC fall
within the ambit of 'one series of acts so connected together as to
form the same transaction' for the purpose of trial together in terms of
Section 220 of the Code of Criminal Procedure, 1973?3
4. The question above-mentioned carries the peculiarities of its
own in the present case; and the peculiarities have got confounded with
cursory disposal of revision petition by the High Court with an erroneous
assumption as if it were a case of challenge to the acquittal of the accusedrespondent No. 2. We are rather impelled to observe at the outset and
with respect that, the impugned order of the High Court is a cryptic one,
where neither the facts nor the relevant questions of law have gone into
appropriate consideration; and the case of 'discharge' because of
2 'IPC', for short.
3 'CrPC', for short.
 MS. P xxx v. STATE OF UTTARAKHAND & ANR.
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territorial jurisdiction has been treated by the High Court as that of
'acquittal'. This aspect of the matter has indeed formed a point of
contention before us. In the ordinary course, we would have set aside
the order impugned and remanded the matter for reconsideration by the
High Court but, looking to the subject-matter and the status of parties
involved in this protracted litigation since the year 2016 as also looking to
the fact that, after trial, the accused-respondent No. 2 has been acquitted
of the said offences under Sections 504 and 506 IPC, we have considered
it proper to deal with the relevant question on its merits in this appeal
itself.
5. In the aforesaid backdrop, the relevant factual aspects could
be summarised as follows:
5.1. The present case has its genesis in the proposed matrimonial
alliance by way of engagement of the appellant and respondent No. 2,
both being the residents of Village Dangidhar (Saliyana), Tehsil Gairsain,
District Chamoli, Uttarakhand. Admittedly, they were engaged on
13.11.2015 at their village.
5.2. Put in a nutshell, the allegations of the appellant had been
that after their engagement, she was invited by the respondent No. 2 to
Delhi; and was subjected to sexual intercourse by respondent No. 2
against her wishes at Delhi in the month of February 2016. The appellant
further alleged that the respondent No. 2, thereafter, made a demand of
money and refused to marry her when the demand was not met; and
later on, he hurled abuses on her and also threatened to kill. These aspects
and other facts/allegations were specified in a complaint filed by the
appellant under Section 156(3) CrPC before the Judicial Magistrate First
Class, Gairsain, District Chamoli while complaining of inaction of police
on the complaint made by her mother. The learned Judicial Magistrate,
after having gone through the complaint, formed an opinion in his order
dated 21.01.2017 that the matter required investigation and, accordingly,
directed the police station concerned to register the First Information
Report4 and keep the Court apprised of the investigation.
5.3. The contents of the complaint so made by the appellant,
reproduced and reiterated by the learned Judicial Magistrate in his order
dated 21.01.2017, which would specify the nature of accusations and
4 "FIR', for short.
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the place/places of occurrence/occurrences, could be usefully extracted
as under: -
"The complaint alongwith affidavit and other documents, is filed
by the complainant in this court seeking an order for registering a
F.I.R. against accused Narender Sah. As per the complaint, the
complainant is a resident of Tehsil Gairsain. The complainant -
Ms. P d/o Sh. Rajeev Rawat r/o Dangidhar Tehsil Gairsain, Distt.
Chamoli was engaged to Narender Sah s/o Sh. Dhan Singh Sah r/
o village Dhargair Tehsil Gairsain, Distt Chamoli on 13.11.2015 as
per Hindu Rights and Ceremonies at village Dhangidhar (Saliyana).
It is thereafter stated that on 21.12.2016, the accused asked the
complainant to come to Delhi for the purchase of clothes for
marriage and threatened her that he would break the engagement
in case she would not come. The complainant visited Delhi
alongwith her cousin Tikka Singh. The accused met the complainant
at Kashmiri gate. The complainant's cousin went to his relatives
place from Kashmiri gate itself while the complainant went with
the accused to his house at Khanpur. Thereafter from 21.02.2016
upto 24.02.2016, it is stated that the accused had sexual intercourse
with the complainant against her wishes. It was stated by the
accused that since they are engaged, they are now living as
husband and wife. It is stated that the accused threatened the
complainant that is she does not do things according to his wishes,
he may change the matrimonial alliance. In the series of events
the accused also told the complainant to bring Rs. 25lakh from
her mother since the accused requires the same for construction
of a house in New Delhi and that he will marry the complainant
only if she gives him the money. Thereafter the complainant's
mother, while referring to the aforesaid discussions filed a complaint
at P.S. Gairsain. It is stated that the accused came to the Police
station and filed an affidavit on 01.11.2016 assuring that he will
marry his fiancé Ms. P in December 2016. In the said affidavit, it
has been accepted by the accused Narender Sah that he and Ms.
P were engaged on 13.11.2015 and that on account of being busy
due to his occupation, the accused would marry the complainant
in December 2016. But thereafter he did not marry her and instead
threatened her to kill her while hurling abuses at her. Thereafter
the mother of the complainant Smt. Shakuntala Devi filed a
complaint against the accused in P.S. Gairsain, Distt. Chamoli on
 MS. P xxx v. STATE OF UTTARAKHAND & ANR.
[DINESH MAHESHWARI, J.]
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12.12.2016. Since no steps were taken against the accused by
the P.S. Gairsain, Smt. Shakuntala Devi filed a complaint to the
superintendent of police, Distt. Chamoli in a complaint letter dated
16.12.2016. It is stated that no steps were taken by the police
against Narender Sah. Both the parties were also referred for
counselling to women cell Gopeshwar but the counselling has failed.
As per the complainant the accused is not ready to marry the
complainant Ms. P and is still demanding Rs. 25 lakh whereas the
accused, on the pretext of marriage has not only done engagement
with Ms. P but also had sexual intercourse with her against her
wishes, and yet is not marrying her."
5.4. In view of the directions aforesaid, FIR No. 3 of 2017 came
to be registered at Police Station, Gairsain and after investigation, a
charge-sheet was submitted in the Court of Judicial Magistrate First
Class, Gairsain, District Chamoli for offences under Sections 376, 504
and 506 IPC; and in view of the involvement of offence under Section
376 IPC, the case was committed to the Court of Sessions Judge, Chamoli.
The order passed by the learned Sessions Judge, Chamoli on the question
of framing charge has given rise to the present dispute.
6. The Sessions Judge, Chamoli, took up the matter in Sessions
Trial No. 8 of 2017 and arguments were heard for framing of charge,
where it was, inter alia, contended on behalf of the accused-respondent
No. 2 that the entire incident pertaining to the offence under Section 376
IPC, as per the allegation in the FIR as also in the statement of victim,
took place at Delhi which was beyond the territorial jurisdiction of the
Court at Chamoli and, therefore, the Court was not competent to try the
said offence.
6.1. In the impugned order dated 28.10.2017, the learned Sessions
Judge agreed with the contentions so urged on behalf of the accused
and held that the offence under Section 376 IPC, which had taken
place at Delhi, was not a continuing one; and whatever threat was
allegedly given by the accused to the victim, it did not constitute a kind
of offence which could be said to be in the series of same transaction.
Therefore, the learned Sessions Judge concluded that the accused was
entitled to be discharged in relation to the offence under Section 376
IPC for want of territorial jurisdiction and, in sequel, also found it just
and proper to remit the matter to the Court of Judicial Magistrate for
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trial of the remaining offences pertaining to Sections 504 and 506 IPC.
The relevant part of the impugned order dated 28.10.2017 reads as
under: -
"6. In the light of rival arguments of the parties, I have gone through
the entire material collected during the investigation. From the
material collecting during the investigation it is clear that the
engagement between the victim and accused person had taken
place within the jurisdiction of District Chamoli but the incident of
physical relationship or sexual intercourse between the victim and
the accused person as alleged in the F.I.R and in the statements
of victim recorded under Section 161 and 164 of the Cr.P.C. is
found to be at Delhi. It is specifically alleged in the First Information
Report that whatever physical relation was established between
the victim and accused person was in the tenanted premises of
accused at Khanpur, Delhi. The victim has also reiterated this
fact in her statement recorded under Section 164 of the Cr.P.C
that in the month of February, 2016 accused has called the victim
at Delhi to introduce her to his Buwa and accused had come to
receive her at Kashmirigate Bus Station at Delhi from where he
took her to his rented premises and kept her there from 21.02.2016
to 24.02.2016. During this period the accused tried to commit
rape upon her and when she resisted, he threatened to change the
decision of marriage and then he made physical relation with the
victim against her will. In her statement recorded under Section
164 of the Cr.P.C. the victim has also stated that on 23rd March,
2016 she again went to Delhi on the call of accused and at that
time the accused made physical relationship twice with her consent
which was given on the pretext of marriage. Therefore, from the
evidence collected during the investigation it is clear that the place
of occurrence of the alleged offence under Section 376 of the
I.P.C is at Delhi. The offence of rape is not a continuing offence
and whatever threat is alleged to have been given by the accused
to the victim is on phone and is not a kind of offence which can be
said to be in the series of transaction. Therefore, this Court does
not possess territorial jurisdiction to try the offence against the
accused under Section 376 of the I.P.C. Thus, the accused is
liable to be discharged on this account. The rest allegations, which
relate to Section 504 and 506 of the I.P.C., are not exclusively
triable by the Court of Sessions for which the case of the accused
 MS. P xxx v. STATE OF UTTARAKHAND & ANR.
[DINESH MAHESHWARI, J.]
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can be transferred to the competent Court under Section 208 of
the Cr.P.C for proceeding according to law.
 ORDER
Accused Narendra Shah is discharged under Section 376 of the
I.P.C on the ground of lack of territorial jurisdiction with the liberty
toproceed prosecution against the accused in the appropriate Court.
The case is transferred to the Court of Judicial Magistrate, First
Class, Gairsain, District- Chamoli under Section 208 of the Cr.P.C.
as the remaining offences are not exclusively triable by the Court
ofSessions for proceeding according to law.
Accused is directed to appear before the Judicial Magistrate,
FirstClass, Gairsain, District- Chamoli on 22.11.2017 for argument
oncharge."
(emphasis supplied)
7. The order aforesaid was challenged by the appellant in the said
Criminal Revision Petition No. 42 of 2018 before the High Court.
Unfortunately, the High Court, in its impugned order dated 25.09.2018,
chose to decide the matter in the absence of revisionist (i.e., the present
appellant) and, without even taking into consideration the nature of order
passed by the Sessions Judge, simply observed, rather rhetorically, that
in case of acquittal, even if two views were possible, the Appellate Court
would not reverse the finding of acquittal unless the finding was perverse;
and that there was no perversity, illegality and jurisdictional error in the
order impugned. Accordingly, the revision petition was dismissed. The
entire of the order passed by the learned Single Judge of the High Court
reads as under: -
"This revision has not been admitted yet.
This criminal revision has been directed against the judgment
and order dated 28.10.2017, passed by the learned Sessions Judge
in Session Trial No. 8 of 2017 State vs. Narendra Sah, whereby
the learned Judge acquitted the accused person under section
376 IPC on the ground of lack of territorial jurisdiction with the
liberty to proceed prosecution against the accused in the
appropriate Court.
I have perused the impugned judgment and papers on record.
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It is settled proposition of law that in a case where the accused
has been acquitted by the trial court and even if two views are
possible, it is not just and proper on the part of the appellate court
to reverse the finding of acquittal recorded by the court below
unless the findings of court below are perverse.
I find no perversity, illegality and jurisdictional error in the order
impugned.
Accordingly, the revision lacks merit and dismissed."
8. The aforesaid orders as passed by the High Court and the
Sessions Judge are in challenge in the present appeal. Before adverting
to the stand of the respective parties and the rival contentions, another
relevant fact could be taken note of at this juncture, which relates to the
trial for the aforesaid offences under Sections 504 and 506 IPC.
9. As noticed, in the impugned order dated 28.10.2017, the learned
Sessions Judge, while discharging the accused-respondent No. 2 of the
offence under Section 376 IPC on the ground of lack of territorial
jurisdiction, had transferred the matter to the Court of Judicial Magistrate
First Class, Gairsain, District Chamoli for trial of the respondent No. 2 in
relation to the remaining offences under Sections 504 and 506 IPC. The
said matter was taken up for trial by the learned Judicial Magistrate in
Criminal Case No. 137 of 2017. In this trial, the appellant and other
witnesses were indeed examined by the prosecution and ultimately, the
case was decided by the learned Judicial Magistrate by his judgment
and order dated 01.05.2019. A perusal of the said judgment and order
dated 01.05.2019 makes out that the learned Judicial Magistrate, after
appreciation of evidence, found that the prosecution witnesses had failed
to establish the fact that the accused-respondent No. 2 hurled abuses or
gave death threats to the appellant and her family. The said finding of
the learned Judicial Magistrate, leading to acquittal of the accusedrespondent No. 2 of the offences under Sections 504 and 506 IPC, reads
as under: -
"None of the prosecution witnesses in their testimonies have
stated that the Accused Narender Singh Shah hurled abuses or
gave death threats to the Petitioner as well as her family. The
testimonies led on record for evidence by the Prosecution against
the Accused and the documentary evidence do not prove the
charges against the Accused under Section 504 and 506 of the
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IPC. This is how the Prosecution was unable to prove its case
against the Accused. Even though the Prosecution led the
testimonies of PW1 to PW6 on record, they were unable to prove
the case against the Accused that he hurled abuses and gave
death threats to the Complainant. Therefore, the Accused Narender
Shah is acquitted of the offences under Section 504, 506 of the
IPC."
10. Having taken note of the material facts and relevant orders
pertaining to this case, we may now summarise the respective
contentions, where the submission made on behalf of the appellant in
challenge to the order dated 25.09.2018, as passed by the High Court
as also the order dated 28.10.2017, as passed by the Sessions Judge
have been duly supported in the submissions made on behalf of the
respondent No. 1-State; and duly countered on behalf of the accusedrespondent No. 2.
11. Learned counsel for the appellant has strenuously argued that
in this case, the accused-respondent No. 2 has wrongly been discharged
of the offence under Section 376 IPC without the learned Sessions Judge
appreciating that the offences forming the part of the same transaction
could not have been segregated on the ground of want of territorial
jurisdiction. The learned counsel has particularly referred to Sections
178 and 179 with Section 220 CrPC and has emphasized that in this
case, the offences pertaining to Sections 376, 504 and 506 IPC formed
the part of same transaction and their segregation, as ordered by the
learned Sessions Judge in the order dated 28.10.2017, has resulted in
miscarriage of justice. In support of these contentions, the learned counsel
has relied upon the decision in the case of Satvinder Kaur v. State
(Govt. of NCT of Delhi) and Anr.: (1999) 8 SCC 728.
11.1. Learned counsel for the appellant has submitted, with
elaborate reference to contents of the complaint as stated in Judicial
Magistrate's order dated 21.01.2017 and to the statements made by
the appellant, including that in the trial of the respondent No. 2 for the
offences under Sections 504 and 506 IPC, that the appellant has
consistently maintained her stand that she was subjected to forcible
sexual intercourse by the respondent No. 2 on the threat of ending the
matrimonial alliance. Learned counsel would argue that in view of this
consistent stand of the appellant, the respondent No. 2 ought to have
been put to trial for the offence under Section 376 IPC, which could
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not have been segregated from other offences. The learned counsel
has also referred to Section 90 IPC to submit that the consent given by
the appellant for having physical relationship under fear or
misconception could not have been treated as a valid consent; and
even as per the presumption provided by Section 114-A of the Evidence
Act, 1872, the respondent No. 2 ought to face trial for the offence
under Section 376 IPC. A decision of this Court in the case of State of
Punjab v. Gurmit Singh and Ors.: (1996) 2 SCC 384 has also been
referred as regards the value and worth attached by the Courts to the
assertions of a victim of sexual offence.
11.2. Learned counsel for the appellant has further argued that
the trial in Case No. 137 of 2017 for offences under Sections 504 and
506 IPC, where the accused-respondent No. 2 was acquitted by the
order dated 01.05.2019, deserves to be quashed because this trial has
taken place before the Judicial Magistrate only because of segregation
of the said offences with the offence under Section 376 IPC, which is
triable only by the Court of Sessions. The submission has been that, by
setting aside the order of segregation, the entire matter deserves to be
put to trial for the offence under Section 376 IPC along with the offences
under Sections 504 and 506 IPC.
11.3. It has also been argued on behalf of the appellant that while
the learned Sessions Judge had erroneously discharged the accusedrespondent No. 2 of the offence under Section 376 IPC on the ground of
lack of territorial jurisdiction, the High Court summarily dismissed the
petition without giving any reason as to its conclusion. It has further
been pointed out that the High Court has wrongly recorded as if the
accused-respondent No. 2 was acquitted of the offence under Section
376 IPC without appreciating that it had not been a case of acquittal in
terms of Section 232 CrPC but had been of discharge in terms of Section
227 CrPC.
12. While supporting the submissions made on behalf of the
appellant, learned counsel for the respondent No. 1-State has submitted
that the Sessions Judge, Chamoli was indeed competent to try the
accused-respondent No.2 for the offence under Section 376 IPC along
with the offences under Sections 504 and 506 IPC, for the said offences
formed the series of same transaction. Learned counsel for the State
has particularly referred to Sections 178(d), 179, 180, 184 read with
Sections 220(1) and 220(3) CrPC.
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[DINESH MAHESHWARI, J.]
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12.1. Learned counsel for the State has further contended that
the trial conducted by the Judicial Magistrate First Class, Gairsain, District
Chamoli in relation to the charges under Sections 504 and 506 IPC after
segregation of the charge under Section 376 IPC stands vitiated in terms
of Clause (l) of Section 461 CrPC. Hence, according to the learned
counsel, de novo trial of the accused under Sections 376, 504 and 506
IPC is required to be conducted by the Court of Sessions Judge, Chamoli.
12.2. Learned counsel for the State has also referred to a couple
of decisions of this Court to submit that in the offence of rape, the solitary
evidence of prosecutrix, if it inspires confidence, is sufficient to hold the
accused guilty without any need of corroboration. The learned counsel
would submit that in the present case, where the prosecutrix has
consistently maintained in the FIR as also in the statements under Sections
161 and 164 CrPC, that she was forced by the respondent No. 2 to
establish physical relations under the threat of cancelling the marriage,
the offence under Section 376 IPC is clearly made out.
13. Per contra, learned counsel for the accused-respondent No.
2 has argued that in terms of Section 218 CrPC, the learned Sessions
Judge, Chamoli has rightly ordered for separation of charge in relation to
Section 376 CrPC and has rightly not proceeded with the same for the
alleged occurrence having taken place at Delhi.
13.1. Learned counsel for the accused-respondent No. 2 would
submit that in terms of Section 218 CrPC, separate charges are required
to the framed for separate offences and they are to be tried separately.
It has been contended that in the present case, the learned Sessions
Judge rightly took into account the fact that though the appellant and the
respondent No.