HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Revision No.263 of 2024

Stuti Agarwal ….......Revisionist

Vs.

State of Uttarakhand and another …..... Respondents

Present : Mr. Ajeet Kumar Yadav, Advocate for the revisionist.

Mr. Virendra Singh Rawat, A.G.A. with Ms. Rangoli Purohit, Brief
Holder for the State/respondent no.1.

JUDGMENT

Hon’ble Ravindra Maithani, J. (Oral)

The challenge in this revision is made to the

Judgment and Order dated 04.03.2024, passed in

Sessions Trial No.02 of 2024, State of Uttarakhand vs.

Anmol Agarwal, passed by the court of Additional

Sessions Judge/FTSC, Rudrapur, District Udham Singh

Nagar (for short, “the case”). By the impugned order, the

court discharged the respondent no.2 from the charges

under Section 376 IPC for the want of territorial

jurisdiction, but observed that the trial of the accused

shall proceed under Sections 452, 323, 506 IPC.

Accordingly, the matter was transferred to the court of

Magistrate of competent jurisdiction under Section 228 of

the Code of Criminal Procedure, 1973 (“the Code”).

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2. Heard learned counsel for the parties and

perused the record.

3. The record reveals that the revisionist lodged

an FIR against the respondent no.2 on 07.07.2022, under

Sections 323, 376, 452, 506 IPC. According to the FIR,

the revisionist and the respondent no.2 came close to

each other through some social media late in the year

2019. With the consent of their parents on 17.01.2020,

the revisionist along with the respondent no.2 visited

Nainital. There the respondent no.2 married the victim by

filling her hairline with the vermillion and thereafter,

established physical relations with her. He continued

establishing physical relations with the revisionist on

multiple occasions under the pretext of marriage, but

subsequently, he declined to marry. The FIR records that

on 22.05.2022, in the afternoon the respondent no.2

along with some other persons entered into the house of

the revisionist; assaulted her and threatened her to life. It

is this FIR, in which, after investigation charge-sheet

under Section 323, 376, 452, 506 IPC against the

respondent no.2 has been filed.

4. By the impugned order, the court below

observed that since the acts of rape were committed in

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Nainital and/or Bareilly, therefore, the court in Udham

Singh Nagar has no territorial jurisdiction to try the case

and, accordingly, discharged the respondent no.2 from

the charge under Section 376 IPC. By the same order, as

stated, the court transferred the trial of the case against

respondent no.2 for the offence under Section 452, 323,

506 IPC to the court of Magistrate having competent

jurisdiction.

5. Learned counsel for the revisionist would

submit that the respondent no.2 established physical

relations with the revisionist in Bareilly and Nainital and

there were quite frequently meeting in Khatima also.

6. The Court posed a question to the learned

counsel for the revisionist, as to whether ever any

allegation of rape within the territorial jurisdiction of

Udham Singh Nagar was levelled by the revisionist? He

would reply in negative.

7. Learned counsel for the revisionist would also

submit that the offence under Section 376 IPC may also

be tried in the court in District Udham Singh Nagar in

view of Section 220 of the Code. He would submit that the

acts are so connected, so as to form the same transaction.

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8. While passing the impugned order reference

has been made to the judgment in the case of P XXX vs.

State of Uttarakhand and another, 2022 SCC OnLine SC

752. In that case, it was the case of the victim that she

was raped in Delhi and telephonically threat was

extended to her when she was within the territorial

jurisdiction of Chamoli. The court at Chamoli had

discharged the accused in that case of the offence under

Section 376 IPC on the ground of lack of territorial

jurisdiction with liberty to the prosecution to proceed

against the accused in the appropriate court. That order

was challenged. Hon’ble Supreme Court discussed the

provisions of Section 220 of the Code and in para 46, 47

and 48 observed as follows:-

“46. Thus, in the aforesaid decisions in Mohan

Baitha and Anju Chaudhary, this Court has
underscored that the expression ‘same transaction’
seems to be having vague underpinnings; and this
Court has also pointed out that no formula of universal
application could be enunciated for determining as to
whether two or more acts constitute the same
transaction. However, even while pointing out that the
question as to whether a series of acts are so connected
together as to form the same transaction is purely a
question of fact, this Court has indicated the core
elements like proximity of time, unity or proximity of
place, continuity of action and community of purpose
or design, which are of relevant considerations and
when these factors are applied to common sense and
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ordinary use of language, the vexed question of ‘same

transaction’ could be reasonably determined.

47. Keeping the aforesaid principles in view, we may

examine as to 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. This 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. We have no
hesitation in endorsing the views of the learned
Sessions Judge on the facts of the present case.

48. 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 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
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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.”

9. What forms the same transaction for it, there

cannot be any straitjacket formula. It depends upon the

facts and circumstances of each case. In the instant case,

the chronology, as revealed, in the FIR is as follows:

i) Both, the revisionist and the respondent no.2

came close to each other in the month of

December, 2019.

ii) The respondent no.2 promised to marry the

revisionist.

iii) With the consent of the parents the revisionist

joined the company of respondent no.2 to visit

Nainital on 17.01.2020, where by making

gesture of marriage, the respondent no.2

established physical relations with the

revisionist.

iv) Under the pretext of marriage, on multiple

occasions, thereafter, the respondent no.2

established physical relations with the

revisionist.
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v) On 17.05.2022, on a request having been

extended by the respondent no.2 when the

revisionist visited the place of respondent no.2,

he and his family members denied for marriage.

vi) On 22.05.2022, the respondent no.2 along with

some other persons entered into the house of

the revisionist and attacked and threatened her

to life.

vii) In her statement under Section 164 of the

Code, in addition to what is stated hereinabove,

the revisionist has also stated that she visited

the respondent no.2 at Bareilly on multiple

occasions, where the respondent no.2

established physical relations with her. The

dates of physical relations having been

established in Bareilly, have not been disclosed

either in the FIR or in the statement under

Section 164 of the Code.

10. There is no proximity between the act allegedly

committed by the respondent no.2 on 22.05.2022 and the

alleged rape that was committed by the respondent no.2

on 17.01.2020 and thereafter, the subsequent dates have

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not been disclosed by the revisionist. In the instant case,

there are specific allegation that rape was committed in

Nainital and Bareilly. There is no allegation of rape within

the territorial jurisdiction of District Udham Singh Nagar.

Rape is not a continuing offence. The court below has

discussed the law and facts quite in detail while passing

the impugned order. Under the facts and circumstances

of the case, the court below has rightly held that court

had no territorial jurisdiction to trial offence under

Section 376 IPC for want of territorial jurisdiction. There

is no illegality, impropriety or error in the impugned

order. Therefore, no interference is warranted in this

revision and the revision deserves to be dismissed.

11. The revision is dismissed.

12. When these lines were dictated, learned

counsel for the revisionist seeks liberty to seek such

remedy against the respondent no.2 for the offence of

rape, as is permissible under law. Undoubtedly, the

revisionist is free to seek such remedy, as is permissible

under law.

(Ravindra Maithani, J.)

25.04.2024
Sanjay