2016 (12) TMI 1817 - HC - Indian Laws

Maintainability of petition - territorial jurisdiction - Murder - petitioner had been accused of killing 5 persons at Village Cher Baikunthpur District Chhattisgarh - petitioner/ non-applicant contends that this court is vested with jurisdiction concurrent to that of the High Court of Chhattisgarh - concept and place of cause of action . Nature of the power exercised by the President while deciding clemency of any convict - concept of cause of action - HELD THAT - No doubt the protection of personal life and liberty as enshrined in Article 21 of the Constitution is paramount in any civilized society. All the limbs of the State must act to protect the same from any infraction. The concept of cause of action was inserted as Article 226 (1A) by the 15th Amendment and later renumbered as Article 226 (2) by the 42nd Amendment. The said concept was comprehensively discussed in Alchemist Ltd. 2007 (3) TMI 382 - SUPREME COURT . Further the Full Bench of this Court in M/S. STERLING AGRO INDUSTRIES LTD. VERSUS UNION OF INDIA ORS. JAN CHETNA VERSUS MINISTRY OF ENVIRONMENT AND FORESTS ORS. MANU JAIN VERSUS SMT. NEERJA SHAH ORS. M/S BAFNA HEALTHCARE PVT. LTD. ORS. VERSUS COMMISSIONER OF CENTRAL EXCISE DELHI-IV ORS. THE COMMISSIONER OF TRADE TAX ANR. VERSUS M/S. RICOH INDIA LTD. ORS. 2012 (6) TMI 76 - DELHI HIGH COURT - LB had concluded that e ven if a miniscule part of cause of action arises within the jurisdiction of this court a writ petition would be maintainable before this court. At the same time the full court had cautioned that the term cause of action should be understood as per Alchemist Ltd. As to what amounts to cause of action is well-settled simply put it is the bundle of facts which the plaintiff must prove in order to succeed - For every action there has to be a cause of action. If there is no cause of action the plaint or petition has to be dismissed. Whether cause of action can be said to have arisen in Delhi? - HELD THAT - The argument of the learned counsel for the applicant is twofold; first that cause of action is linked with crime and second that rejection of mercy petition does not give rise to any cause of action. We are unable to accept both the contentions of the applicant - The concept of cause of action in respect of criminal proceedings cannot apply sensu stricto to the present proceedings as the same are not a continuation of the judicial proceedings but premised upon executive orders. Learned counsel for the applicant had next contended that the rejection of mercy petition does not give rise to any cause of action. As an alternative Mr. Jha had submitted it is the communication to the convict which may give rise to a cause of action. Again we are unable to agree with the argument of learned counsel for the applicant. The mercy petition is the last thread between the convict and the gallows; the rejection of which leads to issuance of warrants of execution. It cannot be said that the same does not give rise to any cause of action to the convict as it closes the last hope upon which his very life is reliant. Therefore in our view the rejection of mercy petition does give rise to a cause of action at Delhi. Principle of forum non conveniens - applicant has argued that the convenient forum would be Chhattisgarh High Court and not this court - HELD THAT - It is clear that the courts should generally decide disputes upon which they have jurisdiction. They may decline to exercise such jurisdiction only if there are compelling reasons for not doing so. In doing so the courts must apply a balancing test and reject to exercise jurisdiction only if there are compelling reasons keeping the Latin maxim Judex tenetur impertiri judicium suum in mind - In the present case the learned counsel for the applicant has resisted the jurisdiction of this court stating that the records of the supervening circumstances are maintained in Chhattisgarh and that the convict is also in Chhattisgarh. On the contrary the counsel for the petitioner has contended that the material which is to be looked into is in the possession of the respondent no. 1 the seat of which is also in Delhi. The material to be examined is the advice tendered by the cabinet and all the documents and records pertaining to the same are in Delhi and the decision has also been taken in Delhi. Further the location of the convict also makes no difference as the convict being the dominus litis is free to invoke the jurisdiction of this court. Accordingly the said contention of the applicant must also be rejected. This Court is vested with the jurisdiction to entertain the present writ petition - Application dismissed.

Summary

Issues Involved:
1. Territorial jurisdiction of the Delhi High Court to entertain the writ petition.
2. Nature of the power exercised by the President in deciding clemency.
3. Application of the doctrine of forum non conveniens.

Detailed Analysis:

1. Territorial Jurisdiction:
The primary issue was whether the Delhi High Court had the territorial jurisdiction to entertain the writ petition challenging the rejection of the mercy petition by the President and the Governor of Chhattisgarh. The petitioner argued that the jurisdiction was based on the fact that the respondent no. 1 (Union of India) is situated in Delhi and the cause of action arose in Delhi where the mercy petition was processed and rejected. The court examined the submissions and relevant case laws, including Kusum Ingots v. Union of India and Alchemist Ltd. v. State Bank of Sikkim, which clarified that even a fraction of the cause of action arising within the territorial jurisdiction of the court would confer jurisdiction. The court concluded that since the mercy petition was processed and rejected in Delhi, substantial cause of action arose in Delhi, thereby giving the Delhi High Court jurisdiction.

2. Nature of Presidential Clemency Power:
The court analyzed the nature of the power exercised by the President under Article 72 of the Constitution, which is distinct from judicial power. This power is executive in nature and involves the President acting on the advice of the Central Government. The court referred to the Supreme Court judgments in Kehar Singh v. Union of India and Shatrughan Chauhan v. Union of India, which established that the President's power to grant clemency is not an extension of judicial proceedings but an independent executive function. The court emphasized that the rejection of the mercy petition by the President does not amend or supersede the judicial record but operates on a different plane, thus not being a continuation of the criminal judicial proceedings.

3. Doctrine of Forum Non Conveniens:
The respondent argued that even if the Delhi High Court had jurisdiction, it should refrain from exercising it based on the doctrine of forum non conveniens, suggesting that the High Court of Chhattisgarh would be a more appropriate forum. The court considered the principles laid out in Sterling Agro Industries Ltd. v. Union of India and Vishnu Security Services v. Regional Provident Fund Commissioner, which emphasized that a court should generally decide disputes upon which it has jurisdiction unless there are compelling reasons not to do so. The court noted that the material relevant to the decision of the mercy petition, including the advice tendered by the cabinet, was located in Delhi. Therefore, the court found no compelling reason to decline jurisdiction in favor of the High Court of Chhattisgarh.

Conclusion:
The Delhi High Court concluded that it had the jurisdiction to entertain the writ petition as substantial cause of action had arisen in Delhi. The court dismissed the application challenging its jurisdiction, emphasizing that the rejection of the mercy petition by the President and the Governor of Chhattisgarh provided sufficient grounds for the petitioner to invoke the jurisdiction of the Delhi High Court. The court also rejected the application of the doctrine of forum non conveniens, finding no compelling reason to transfer the case to the High Court of Chhattisgarh.