Final Order 1

Order Details: Order of Dismissal
Pdf Text: IN THE COURT OF METROPOLITAN MAGISTRATE,
66TH COURT, ANDHERI, MUMBAI.
C.C. No. : 506/SW/2018
ORDER BELOW (EXH.1 )
Read the complaint, affidavit, documents filed
alongwith the complaint. Heard the complainant in person, at
length. He relied upon the decisions of Manoj Kumar Sharma &
Ors. V/s. State of Chhattisgarh and Anr., Criminal Appeal No.
775 of 2013, decided on 23/08/2016, State of Andhra Pradesh
V/s. Punati Ramulu And Others, AIR 1993 SC 2644, 1933,
decided on 19/02/1993, Rajesh Dubey V/s. State & Ors. W. P.
(CRL) 533/2012, decided on 13/09/2013, Lalita Kumari V/s.
Government of U. P. I have gone through decisions cited by the
complainant.
2. It appears that, complainant has made this complaint
for issuance of directions to Sr. P.I. of Airport police station for
investigating case in view of U/Sec. 156 (3) of Criminal
Procedure Code.
3. He stated and argued that, on 11/11/2018, Captain
Arvind Kathpalia was scheduled to operate flight AI – 111 on the
Delhi – London Sector. After the briefing he went to the medical
room and undertook his preflight breathanalyzer examination.
The Doctor who conducted his preflight breathanalyzer
examination, was found Captain Arvind Kathapalia to be
positive for alcohol, with reading 0.007, 2 independent
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witnesses were called into the medical room and also undertook
their preflight breathanalyzer examination to satisfy both the
Calibration of the machine and also alcohol content in their
breathanalyzer examination, wherein reading of 000., which a
second preflight breathanalyzer examination conducted at
13.50 hours, once again he found positive with an increased
reading of 0.008.
4. He further argued and stated that, the concern Doctor
employee No. 80038597, prepared report No. 276 of preflight
breathanalyzer examination and certified that, Captain Arvind
Kathapalia had tested positive for alcohol with remark “unfit to
fly”. He stated and argued that, Captain Arvind Kathpalia with
intention, under influence of alcohol, with knowledge tried to
undertake his flight duties, which amounts endangering the lives
of the passengers, also attempt to murder, therefore, committed
offences 336 and 307 of Indian Penal Code. He stated that,
prior to this he undertook his flight duties under the influence of
alcohol and deliberately avoided to under go his preflight
breathanalyzer examination twice, on 19/02/2017 and
structures were passed upon him. This court was pleased to
pass order of registration of F.I.R. and department action was
also taken against him. The complainant has filed this complaint
with police authority, issued reminders in that regard, but no
use, therefore, present complaint.
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C.C. No. : 506/SW/2018 ~3~
5. He further argued that, in a case Lalita Kumari V/s.
Government of U. P., Honourable Supreme Court held that,
when the complaint reveals cognizable offence then registration
of F.I.R. U/Sec. 154 of Criminal Procedure Code is mandatory,
police have to record the same. He further argued that, in case
Manoj Kumar Sharma and Ors. V/s. State of Chahattisgarh and
Anr. the Honourable Supreme Court held that, if the
investigating officer arrives at the conclusion that, the crime was
not committed within the territorial jurisdiction of the police
station, then F.I.R. can be forwarded to the police station having
jurisdiction over the area in which the crime is committed. But
this would not mean that in a case which requires investigation,
the police officer can refuse to record the FIR and/or investigate
it. Chapter XIII of the Code provides for a€	œ	jurisdiction of the
criminal courts in inquiries and trials. It is to be stated that
under the said Chapter there are various provisions which
empower the court for inquiry or trial of a criminal case and that
there is no absolute prohibition that the offence committed
beyond the local territorial jurisdiction cannot be investigated,
inquired or tried. He argued that, this court has territorial
jurisdiction to entertain the present application and an order of
investigation, as prayed by him.
6. If considered submission made by the complainant in
person, gone through contents of complaint, documents placed
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on record and decisions cited supra, wherein Honourable
Supreme Court in case Manoj Kumar Sharma and Ors. V/s. State
of Chahattisgarh and Anr. elaborately discussed the powers of
the police U/Sec. 156 (3) of Criminal Procedure Code, so also
discussed the jurisdiction of the criminal courts in inquiry and
trial in view of section 177 to 188 of Indian Penal Code.
Further, Honourable Delhi High Court, discussed in detail the
scope of section 397, 190, 204, 398 and 399 of Criminal
Procedure Code.
7. The complainant alleged that, on 11/11/2018
Captain A. Kathpalia was scheduled to operate flight AI – 111 on
Delhi London Sector, wherein he found positive for alcohol,
thereafter, he was declared to “unfit to fly”. Threfore, the
complainant made this complaint for investigation U/Sec. 156
(3) of Criminal Procedure Code, as he committed cognizable
offence P.U.S. 336 and 307 of Indian Penal Code. In case of
Manoj Kumar Sharma and Ors. V/s. State of Chhattisgarh and
Anrs. Honourable Supreme Court in paragraph No.15 of their
judgment observed that, the territorial jurisdiction of court with
regard to criminal offence would be decided on the basis of
place of occurrence of the incident. In the present case place of
occurrence of incident is at Delhi. Captain Arvin Kathpalia was
examined at Delhi, wherein he found positive for alcohol.
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C.C. No. : 506/SW/2018 ~5~
8. There is no material available on record to show that,
any part of the incident occurred within the territorial
jurisdiction of this court, so as to invoke the territorial
jurisdiction of this court, as no offence occurred within the
territorial jurisdiction of this court so as to consider prayer of
complainant in view of 156 (3) of Criminal Procedure Code. In
view of decision of Manoj Kumar Sharma and Ors. V/s. State of
Chhattisgarh and Anrs., this court is not having territorial
jurisdiction to consider the prayer made by the complainant, as
no offence occurred within territorial jurisdiction of this court,
therefore, the prayer made by the complainant is required to be
rejected. Hence, it is rejected. The complaint is hereby
dismissed.
Mumbai.
Dated : 06/12/2018.
SRD.
Sd/
(R. M. Nerlikar)
Metropolitan Magistrate,
66th Court, Andheri, Mumbai.
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