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TMI Blog1959 (8) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... lace where the factory is situated is within the jurisdiction of the Sub Divisional Magistrate, Poonamallee. On verifying the records at the Collector's office I find that this factory in which the offence was committed is also situated within the jurisdiction of the Sub Divisional Magistrate, Poonamallee. In paragraph 5 it is stated that every offence will have to be enquired into and tried by the court within the local limits of whose jurisdiction the offence is committed. In paragraph 6 it is stated that it has become necessary that the mistake in filing the complaint before the Chief Presidency Magistrate should be condoned and the case be directed to be heard by the chief Presidency Magistrate himself or the case may be transferred to the file of the Sub Divisional Magistrate Poonamallee. It is clear from the averments made in the affidavit that the objection of the accused to the Chief Presidency Magistrate trying the case is with regard to his territorial jurisdiction. This objection is well founded. It is only the Sub Divisional Magistrate, Poonamallee, who has territorial jurisdiction to try these cases. In view of the objection raised by the accused the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely on the ground that the case was enquired into by a magistrate who had no territorial jurisdiction to try the case because S. 531 of the Criminal Procedure Code will apply unless it appears that such an error has occasioned failure of justice. Commitment cannot therefore be quashed; but objection was taken before the trial in the Sessions Court that the accused were committed to a wrong sessions court. The question was whether a wrong sessions court could try the accused though the commitment cannot be quashed. In Queen Empress v. Thaku, ILR 8 Bom 312, it was held that an order of commitment by a magistrate is an order of a criminal court within the meaning of S. 531 Cri.P.C. and that such an order directing commitment, to a court of session which has no territorial jurisdiction cannot be set aside unless failure of justice has been occasioned. It was further held that as under S. 177 Cri.P.C. the offence ought to be tried within the sessions division in which it is said to have been committed the court will transfer the case to the Sessions Court at Ahmednagar unless the Sessions Judge at Ahmednagar reports that this course will be attended with public inconvenience or is li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s within the local limits of whose jurisdiction the cause of action shall accrue or the defendant shall reside as a fixed inhabitant. The principal court of original jurisdiction was the court of the District Judge. On 15-2-1882, the defendant personally signed along with the plaintiff and his pleader a petition praying the District Judge to withdraw the case from the court of the Subordinate Judge and to try the suit in his own court. On the same day an order was made in the District Court in these terms: 'That the case be transferred from the Subordinate Judge's court to the file of this court and the date will be fixed hereafter.' It is admitted that the District Judge had no authority to issue that order, unless such authority was given him by Act X of 1877, S. 25. The suit was entered in the file of the District Court, and has since proceeded as a transferred suit, originally instituted in the court of the Subordinate Judge. The defendant objected that notwithstanding to his agreeing to the transfer of the case to the file of the District Court, in view of the fact that the proceedings were not instituted in the court of competent jurisdiction, the transfer would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25 C.P.C. (present S. 22) unless the court from which the transfer is sought to be made has jurisdiction to try it. Having regard to the terms of S. 25(22) their Lordships entirely approve of that decision ILR 6 Cal 30. In ILR 6 Cal 30 the suit was tried by the subordinate Judge of Rungapore. Before the appeal was made the land which formed the subject matter of the suit was transferred to some other district. The appeal, however, was inadvertently filed in the district court of Rungapore which owing to the transfer of the subject matter of the suit had no jurisdiction to hear the appeal. The Calcutta High Court held that the court to whose jurisdiction the subject matter of the appeal has been transferred alone is competent to hear the appeal and that the appeal which was filed in the original district court was invalid and they added: We can under S. 25 of the Civil Procedure Code direct the transfer of an appeal only from a court having jurisdiction to receive and try it. We have no power to authorise any court to assume jurisdiction to receive and hear any appeal contrary to the usual course prescribed by the code. We, therefore leave the appellant to take the necessary s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be heard subject to all the objections which could be taken before the court from which it has been transferred and that the High Court, therefore, has no jurisdiction to hear the appeal. The learned Judges refer to the decision in ILR 9 All 191 and say that though this case is not on all fours with the case they are dealing still the reasons given in that decision would be applicable and that if that court could not try a suit which was transferred from a court which had no jurisdiction to try it, it is difficult to see how it can hear an appeal transferred from a court which had no jurisdiction to hear such appeal. They were of the view that if the lower court had no jurisdiction to try the case be the defect in jurisdiction with reference to the value or with reference to the situation of the property in dispute or with regard to any other matter which concerns jurisdiction, the High Court could have no jurisdiction. They put it on the ground that if the trial court had no jurisdiction to try the case, the principle of the decision in ILR 9 All 191 would apply. The decision in ILR 36 Mad 387 follows the decision in ILR 9 All 191. The decision in 17 Mad LW 69 : AIR 1923 Mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1936 Mad 765 the facts are these: Two persons were charged for cheating in two cases and were tried by the Sub-Divisional Magistrate of Vellore. The accused objected to the court at Vellore having jurisdiction to try the case. The Sub-divisional Magistrate overruled the objection, tried the accused and acquitted them. A revision was filed against the order of acquittal. Lakshmana Rao J., dismissed the revision petition observing that the Sub-Divisional Magistrate of Vellore had clearly no jurisdiction to try the case. He also observed that all his remarks relating to the merits of the case must be regarded as mere obiter dicta. The complainant filed a fresh complaint before the Chief Presidency Magistrate on the same facts. The Chief Presidency Magistrate dismissed the complaint accepting the plea of autrefois acquit raised by the accused. Then the complainant came to this court with another revision petition against the order of dismissal. A Bench of this court consisting of Jackson and Mockett JJ. held that the plea of autrefois acquit was available only if the acquittal was by a court of competent jurisdiction and that the court without the territorial jurisdiction is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n considered. It seems to me that distinction has to be made between a case where the proceedings are ab initio void and a case where the proceedings are not void ab initio but are only irregular. To the former class of cases the principle laid down by the Privy Council will certainly apply as it dealt with such a case. The question is whether such a principle can apply to the latter class of cases also. In ILR 36 Mad 387 : ILR 9 All 191 has been followed without any discussion though the Privy Council case may well be distinguished. The decision in ILR 36 Mad 387, requires reconsideration. I would, therefore, direct that the papers be placed before my Lord the Chief Justice for orders as to reference to a Full Bench for an authoritative pronouncement. Ramaswami, J. 4. The employees State Insurance Corporation Madras, filed six charge sheets against Sri Haji Mohammad Ismail Sahib, in regard to two tanneries, Sri V. S. Raghavan, in regard to Revathi Studios, Sri. M. H. M. Munes, in regard to Royal Studios, Sri Noor Kazi, in regard to Amco Studios and Sri K. S. Prakash Rao and Sri K. Venkatarama Aiyar in regard to Prakash Studios, under the Employees' State Insurance Act. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used persons raised a preliminary objection that the Chief Presidency Magistrate's court had no jurisdiction and the places where the factories are situated, are within the jurisdiction of the Sub Divisional Magistrate, Poonamallee. Therefore, applications were filed by the Employees' State insurance corporation, No. 2 Sri Desikachari Road, Mylapore, Madras-4 for giving either a direction of the Chief Presidency Magistrate to try the various calendar cases pending before him or to transfer them to the file of the Sub Divisional Magistrate of Poonamallee, within whose jurisdiction the factories and establishments are situated as contended by the accused themselves. 13. The points that arose for consideration before one of us, Somasundaram, J., were (1) whether the Chief Presidency Magistrate had territorial jurisdiction to try the cases and (2) if not, whether the cases could be transferred from the file of the Chief Presidency Magistrate's court to the file of the court having jurisdiction to try the cases. 14. On the first point Somasundaram J. took the view, on the materials placed before him, then, that the Chief Magistrate will have no jurisdiction to try the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Brazil Line, 1891 1 Q. B. 103. 17. It is laid down by Littleton that the obligor of a bond, conditioned for the payment of money at a particular day, is bound to seek the obligee, if he be in England and at the set day to tender him the money. Otherwise he shall forfeit the bond: Cranley v. Hillary, (1813) 105 E. R. 327. The common law rule is a reasonable rule and it is in conformity with justice and equity because it recognises the obligation of the debtor to pay his debt and that obligation can only be discharged by the debtor going to his creditor and repaying the amount, and the common law rule imposes this obligation only when there is no express contract to the contrary: Bharumal v. Sakhawatmal AIR 1956 Bom 111. The principle is that when a man agrees to do any particular thing, he must do all that is necessary. If it be to pay money to A, on a particular day, he must seek A; Soward v. Palmer, (1818) 129 E. R. 390. Section 49 of the Indian Contract Act does not preclude the application of the rule of English Common law that the debtor must seek out his creditor and pay his debt where the creditor happens to reside, unless there is an arrangement to the contrary: Ramali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I. In the Civil Procedure Code the competency is determined by pecuniary jurisdiction or by special conferment of powers under statutes or by being designated personally to try and dispose of such suits or proceedings. This competency is different from territorial jurisdiction. Both the Criminal Procedure Code and the Civil Procedure Code contain provisions regarding the venue of the Criminal trial (Ss. 178 to 184, both inclusive of the Criminal Procedure Code and Ss. 15 to 25 of the Civil Procedure Code). Normally the competency and venue must concur. Criminal cases and suits may however occur where they do not concur. So provisions are made both in the Civil Procedure Code and the Criminal Procedure Code for meeting such a contingency. 22. There is one vital difference, however, between the Civil Procedure Code and the Criminal Procedure Code. Civil suits are between individuals and in criminal cases it is the State which is vitally interested and except as regards private complaints the State is the prosecutor. In fact even in regard to private complaints the State plays a very important part. Under the scheme of the Criminal Procedure Code, which followed in this respect the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strict Magistrate Cuddapah v. Abdul Kareem AIR 1943 Mad 526, it was held by Horwill, J., that where the objection is that the Collector should have filed the complaint himself and that he had no power to delegate that right to the revenue divisional officer and that the complaint should have been made to the Sub Magistrate having jurisdiction at the place where the Collector received the letter are correct, the magistrate should return the complaint for presentation to the magistrate having jurisdiction, and not forward the papers to his immediate superior under section 346(1). We do not find any warrant for the limitation placed by Horwill J. In this opinion we are fortified by a recent Bench decision of the Calcutta High Court in Amarendra Nath v. Raghunath AIR 1952 Cal 849 wherein it was held that there is nothing in S. 346 to show that that section has no application to cases of want of territorial or local jurisdiction, that on the other hand, the use of the words some other magistrate in such district and such other magistrate having jurisdiction in S. 346(1) may reasonably be construed to indicate that cases of want of local or territorial jurisdiction are also includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or district to another, if it would promote the ends of justice or tend to the convenience of the parties or witnesses. Section 64 of the 1872 Code gave similar powers to the High Court in almost similar terms. Section 526 of the 1888 Code elaborated this power in terms very similar to those contained in sub-sections (1) to (7) of this section of the present Code. 26. To sum up, the High Court when it is made to appear to it that the circumstances contemplated in cls. (a) to (c) of S. 526(1) exist, may clothe with jurisdiction any court not empowered under Ss. 177 to 184 to inquire into any offences and try the same provided that in other respects that court is competent to inquire into or try such offences. This is precisely what is asked for in the instant case. On the footing that the Chief Presidency Magistrate's court has no territorial jurisdiction to enquire into these offences, the learned Public Prosecutor has been instructed to seek our order to clothe the Chief Presidency Magistrate with jurisdiction to enquire into and try these cases. The point is concluded by authority. In ILR 42 Mad 791 : AIR 1920 Mad 834, a Bench of this court held that even assuming tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ami J. While I agree with him in the conclusions arrived at. I should like to add a few words of my own. 32. The facts relating to this reference to the Full Bench have been set out in detail by my learned brother and it is not necessary for me to traverse the same again. Though at an earlier stage a doubt was raised by the learned counsel for the accused as to whether the Presidency Magistrate's court had local or territorial jurisdiction to try these cases the learned Advocate General has, in the course of the hearing of this reference, made it clear that the Chief Presidency Magistrate's court has jurisdiction to try the offences in respect of which the accused stand charged before him. The learned counsel for the accused contended that since the accused persons own factories which are situated outside the territorial limits of the city of Madras and their head offices are also situated outside the city limits, the offences must be deemed to have been committed only outside the territorial jurisdiction of the Chief presidency Magistrate so as to attract the operation of only section 201 Cri.P.C. This argument of the learned counsel for the accused was obviously due to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... editor and make the payment and discharge his obligations. Therefore, if a breach is committed, it is only a breach of the obligation to pay the corporation at its office and not otherwise. 33. The next question that was argued by the learned counsel for the accused was that the High Court had no power under the Criminal Procedure Code to order the cases in question to be tried by the Chief Presidency Magistrate or to direct a transfer from the court of the Chief Presidency Magistrate to another court, if the Chief Presidency Magistrate's court was not already vested with the territorial jurisdiction to try such cases. This argument proceeded on the assumption that the Chief Presidency Magistrate's court had no jurisdiction to try the offences because the offences were committed outside its local jurisdiction and when once there was no local jurisdiction for the Chief Presidency Magistrate, then the complaints filed before it become ineffective, and the only alternative for the Chief Presidency Magistrate was to act under S. 201, Cri.P.C., S. 346, Cri.P.C., being of no avail to a court situated within the presidency town. This argument also ignored the distinction tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture seems to have deliberately enacted this difference with a view to secure efficient administration of criminal justice. 35. The learned counsel for the accused, however, relied on certain decisions of single Judges of this court wherein it has been held that resort to S. 201 Cri.P.C. would be the proper remedy of a magistrate who has no territorial jurisdiction to try offences for which a charge has been laid before him. In particular, reference was made by the learned counsel for the accused to the decisions in 1954 2 Mad LJ 459 and AIR 1943 Mad 526. It is but fair to point out that in these decisions the powers of the High Court under S. 526(1)(e)(i) did not come up for consideration and the decisions were merely confined to the proper section that was to be resorted to by the magistrate, viz., whether it was S. 201 or S. 346(1), Cri.P.C. As between the two sections, Ss. 346 and 201, Cri.P.C., decisions were that the proper remedy was to take action under S. 201 Cri.P.C. These decisions, therefore, could not be authority for the proposition now contended for on behalf of the accused that the only course open in the present cases to the magistrate or to the High Court was t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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