Territorial jurisdiction to be established by evidence – Supreme Court
In the case of Kaushik Chatterjee Vs State of Haryana [Transfer Petition (CRL.) NO.456 of 2019], Supreme Court held that territorial jurisdiction is a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular court, the convenience of the accused and the convenience of the witnesses who have to appear before the Court. Seeking transfer of three criminal cases, all pending on the file of the Court of the Additional Judicial Magistrate, Gurugram, Haryana, to any competent Court in New Delhi, a person who was implicated as one of the accused in those three cases had come up with the transfer petitions. The petitioner was appointed as the Group Chief Risk Officer Executive Director of the second respondent, which is a nonbanking finance company and which happens to be the de facto complainant in the criminal cases whose transfer is what is sought in these petitions. Three loans sanctioned by the second respondent company, during the period when the petitioner was in service, became the subject matter of three different complaints lodged by the second respondent company. Thus, in effect, transfer was sought primarily on 2 grounds namely (i) lack of territorial jurisdiction and (ii) apprehension of bias. The court after examining various provisions observed that, “What is significant to note from the Code of 1898 and the Code of 1973 is that the question of jurisdiction dealt with by Sections 28 and 29 of the Code of 1898 and Section 26 of the Code of 1973, is relatable only to the offence and not to the offender. The power of a Court to try an offence is directly governed by Clauses (a) and (b) of Section 26 of the Code of 1973, as it was governed by Sections 28 and 29 of the Code of 1898.” Court relied on the case of Raj Kumari Vijh Vs. Dev Raj Vijh AIR 1977 SC 1101 where it was held that the question of jurisdiction with respect to the power of the Court to try particular kinds of offences goes to the root of the matter and that any transgression of the same would make the entire trial void. Court held that, “It is possible to take a view that the words ‘tries an offence’ are more appropriate than the words ‘tries an offender’ in section 461 (l). This is because, lack of jurisdiction to try an offence cannot be cured by section 462 and hence section 461, logically, could have included the trial of an offence by a Magistrate, not empowered by law to do so, as one of the several items which make the proceedings void. In contrast, the trial of an offender by a court which does not have territorial jurisdiction, can be saved because of section 462, provided there is no other bar for the court to try the said offender (such as in section 27). But Section 461 (l) makes the proceedings of a Magistrate void, if he tried an offender, when not empowered by law to do.” Supreme Court held that, “Issue raised in the cases on hand, is one of territorial jurisdiction. The answer to this depends upon facts to be established by evidence. The facts to be established by evidence, may relate either to the place of commission of the offence or to other things dealt with by Sections 177 to 184 of the Code. In such circumstances, this Court cannot order transfer, on the ground of lack of territorial jurisdiction, even before evidence is marshaled. Hence the transfer petitions are liable to be dismissed.”
the file of the Court of the Additional Judicial Magistrate Gurugram Haryana to any competent Court in New Delhi a I have heard Mr. Vikas Singh learned Senior Counsel appearing for the petitioner Mr. Deepak Thukral learned counsel appearing for the State of Haryana and Mr. Neeraj Group Chief Risk Officer­Executive Director of the second respondent which is a non­banking finance company and which happens to be the de facto complainant in the criminal relevant to note that the petitioner upon his appointment Three loans sanctioned by the second respondent­ Company during the period when the petitioner was in service by the second respondent­Company. All the three complaints Officer Civil Lines Gurugram P.S. For the purpose of easy appreciation the particulars of the loan and the borrower as well as the particulars of the FIR are given in the tabular Rs.4 30 00 000 ­ 406 408 B 406 420 467 406 408 Rs.71 50 000 ­ Rs.46 00 000 ­ Rs.5 13 594 ­ After completion of investigation the police filed a charge­sheet on 14.12.2018 in FIR No.452 18 for alleged offences under Sections 406 408 420 120­B read with Section 34 of the Indian Penal Code that while first at Indore and third loan was sanctioned at Surat nothing happened in Gurugram entitling the de facto complainant to invoke the jurisdiction of the investigating agency and the Court in Gurugram that the second respondent­de facto as the promoter of the de facto complainant wields lot of fair trial at Gurugram the petitioner has come up with the Thus in effect transfer is sought primarily on 2 grounds But Mr. Vikas Singh learned Senior Counsel for the petitioner did not press into service the second ground revolving around the allegation that the second respondent wields a lot of influence locally in Gurugram and that the petitioner will not get a fair trial. This saves me of the botheration to bring on record the transcript of certain 11. Mr. Vikas Singh learned Senior Counsel took me through the loan agreements under which the second dated 26.10.2016 under which facilities were extended to matter of FIR No.452 2018) the place of execution of the lender to be Indore. The address of the borrower is also stated therein to be in Indore. The address of the lender is extended to Al Fatah Tours and Travels cause of residence of the defendant etc. according as the case may be the consequence of an act both of which constitute an offence ensues or place where the accused was found or place where the victim was found or place where the property in place where the property forming the subject matter of an offence was required to be returned or accounted for etc. 19. While jurisdiction of a civil court is determined by The first is that the stage at which an objection as to jurisdiction territorial or pecuniary can be raised is Civil Procedure 1908. There is no provision in the Criminal Procedure Code akin to Section 21 of the Code of Civil ii) The second is that in civil proceedings a plaint can be returned under Order VII Rule 10 CPC to be presented to the proper court at any stage of the proceedings. But in criminal proceedings a limited power is available to a Magistrate under section 201 of the Code to return a complaint. The power is limited in the sense that it is available before taking cognizance as section 201 uses the words “Magistrate who is not competent to take cognizance” and that the power is limited only to complaints as the word “complaint” as defined by section 2(d) Chapter XIII of the Code of Criminal Procedure 1973 i) inquiry investigation and trial. The words “inquiry” Code regarding the jurisdiction of by a Court within whose local jurisdiction it was committed This rule is found in Section 177. The expression “local the several local areas an offence was committed the Court having jurisdiction over any of such local areas may inquire 3) Where an offence is committed partly in one area and 5) Where an offence consists of several acts done in 6) Where something is an offence by reason of the act done be inquired into or tried by a Court within whose local In cases where an act is an offence by reason of its mentioned offence may be inquired into or tried by a Court within whose local jurisdiction either of the acts was done In certain cases such as dacoity dacoity with murder escaping from custody etc. the offence may be inquired into may be inquired into or tried by a Court within whose local The offences of theft extortion or robbery may be the offence was committed or the stolen property was An offence of criminal misappropriation or criminal 12) An offence which includes the possession of stolen local jurisdiction the offence was committed or the stolen 13) An offence which includes cheating if committed by means of letters or telecommunication messages may be inquired into or tried by any Court within whose local whose local jurisdiction the property was delivered by the 15) Some offences relating to marriage such as Section 494 Section 495 IPC An offence committed in the course of a journey or whose local jurisdiction that person or thing passed in the 17) Cases falling under Section 219 (d) and once namely in clausebut uses the word “offender” twice Section 26 of the Code divides offences into two categories namely offences under IPC andoffences under any other special law. Insofar as offences under the IPC are concerned Clause of Section 26 states that they may be other Court by which such offence is shown in the first the Court specifically mentioned in such special law. In case the special law is silent about the Court by which it can be tried then such an offence may be tried either by the High But Clause of Section 26 makes the provisions Therefore a question arose before this Court in the State of Uttar Pradesh Vs. Sabir Ali3 as to whether a conviction and void in the light of Section 15(2) of the Special Act. Section 15(2) of Uttar Pradesh Private Forest Act made the offences of 1973 is in pari materia with Section 530(p) of the Code of 30. What is now clauseof Section 26 of the Code of 1973 Code of 1973 is relatable only to the offence and not to the offender. The power of a Court to try an offence is directly governed by Clausesand of Section 26 of the Code of In other words the jurisdiction of a criminal Court is normally relatable to the offence and in some cases to the before the Calcutta High Court in Ramnath Sardar Vs the territorial jurisdiction of the court could be raised and considered. In that case the objection to the territorial jurisdiction raised before a Magistrate in a petition for clause in Section 531. But the High Court held that Section out of a case filed by the wife for maintenance against the husband the Magistrate rejected a prayer for deciding the the Magistrate passed an order holding that the question of jurisdiction must await the recording of the evidence on the whole case. Ultimately the Magistrate held that he had husband there was no specific denial of the wife’s allegation that the parties last resided together within his jurisdiction When the matter eventually reached this Court this Court relied upon the decision in Purushottam Das Dalmia Vs jurisdictional issues for a criminal Court namely the jurisdiction with respect of the power of the Court to try supra) that the question of jurisdiction with respect to the make the entire trial void. However territorial jurisdiction convenience of the witnesses who have to appear before the 6AIR 1961 SC 1589 After making such a distinction between two different types of jurisdictional issues this Court concluded in that case that where a Magistrate has the power to try a particular offence but the controversy relates solely to his territorial and hence section 461 logically could have included the trial of an offence by a Magistrate not empowered by law to do so contrast the trial of an offender by a court which does not have territorial jurisdiction can be saved because of section proceedings of a Magistrate void if he tried an offender when or “offender” as well as the issue of territorial jurisdiction issue is one of territorial jurisdiction the same has to be 40. Having taken note of the legal position let me now come As seen from the pleadings the type of jurisdictional issue raised in the cases on hand is one of territorial the Code. In such circumstances this Court cannot order transfer on the ground of lack of territorial jurisdiction even 41. However it is open to both parties to raise the issue of Section 26 of the Code and invite a finding. With the above