9911796707
TMI Blog2015 (1) TMI 1487X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Supreme Court in Rajendra Ramchandra Kavalekar Vs. State of Maharashtra [ 2009 (1) TMI 936 - SUPREME COURT ]. Under Section 26 of the Code, subject to the other provisions of the Code, any offence under the Indian Penal Code may be tried by the High Court. From this provision, it is manifestly clear that the High Court can try an offence under the Indian Penal Code if the same has been committed either in full or in part within the territorial limits of the Said High Court. So far as the power of the High Court to entertain an appeal, revision, reference or petition for transfer is concerned, the situs of the Subordinate Court / Magistrate whose proceedings or order which is under challenge gives the jurisdiction to the High Court. So far as the inherent power saved under Section 482 of the Code of Criminal Procedure is concerned, it has not been either expressly or impliedly stated that the power can be exercised beyond the territorial limits of the High Court based on the cause of action. So far as the territorial jurisdiction under Section 482 of the Code of Criminal Procedure is concerned, it is akin to Article 226 of the Constitution of India as it stood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal Procedure, extend beyond the territorial limits of this Court so as to quash an F.I.R. registered within the territorial limits of another High Court ? and whether the civil law concept of cause of action could be imported to criminal law ? Primarily these questions and incidentally, whether the writ jurisdiction could be invoked for the said purpose, have arisen for consideration in this petition. 2. The petitioner is the Managing Director of a company known as M/s.Cetex Petrochemicals Limited having its business place at Manali, Chennai. For the purpose of expansion plans of the said company, the petitioner was in need of funds to the tune of Rs.75,00,00,000/-. The petitioner approached the 4th respondent for funding and finally an understanding was reached between the 4th respondent and the petitioner. As per the understanding, the 4th respondent will provide Rs.50,00,00,000/- as loan on condition that the petitioner shall obtain investment of Rs.25,00,00,000/- through equity. 3. The 3rd respondent is yet another company having its registered office at 168, Atlanta, Nariman Point, Mumbai and one Mr.Raju Bhimrao Shinde was working as a legal assistant in the said com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,000/- share capital to the petitioner company. But unfortunately, at the end, the petitioner did not secure loan from the State Bank of India to the tune of Rs.50,00,00,000/-. As a matter of fact, the petitioner had not even entered into any hypothecation agreement with the bank. In those circumstances, the petitioner had to cancel the authority letter and thus he stopped all further transactions with the third respondent. So, the third respondent was forced to abruptly stop the proposal to get share capital from M/s.C.V.C. Fund Limited, the fifth respondent. In the meanwhile, out of the commission of 3% as already assured, the petitioner had paid Rs.7,00,000/-. Had the agreement been continued and honoured, the third respondent would have got Rs.75,00,000/- as commission for getting share capital of Rs.25,00,00,000/- from M/s.C.V.C. Fund Limited. Now the third respondent has suffered financial loss of Rs.68,00,000/-. This act of the petitioner, according to the third respondent, amounts to cheating. 7. With these allegations, Mr.Raju Bhimrao Shinde, the legal assistant of the third respondent company, made a private complaint to the 8th Court at Esplanade, in Mumbai, who in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot the situs of the authority who has registered the criminal case. In support of his submission, the learned senior counsel relied on a judgment of the Hon'ble Supreme Court in Navinchandra N.Majithia Vs. State of Maharashtra reported in (2000) 7 SCC 640. 12. I have carefully gone through the said judgment. That was a case where the Hon'ble Supreme Court had to consider the territorial jurisdiction of the High Court for the purpose of Article 226 of the Constitution of India and not for Section 482 of the Code of Criminal Procedure. In that case, the criminal case was registered by the police at Shillong and that was sought to be quashed under Article 226 of the Constitution of India on the allegation that the entire cause of action for registration of the case had happened only in Mumbai and no part of cause of action had occurred in the State of Maharashtra. The Bombay High Court by judgment dated 23.03.1999, dismissed the writ petition on the ground that the quashing of the F.I.R. filed in Meghalaya by the Bombay High Court would be without jurisdiction. 13. When this conclusion of the Bombay High Court was examined by a two Judge Bench of the Hon'ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for consideration of the question but cannot be the sole consideration in the matter. On the averments made in the writ petition gist of which has been noted earlier it cannot be said that no part of the cause of action for filing the writ petition arose within the territorial jurisdiction of the Bombay High Court. (Emphasis added) 16. In his concurring judgment, Hon'ble Mr.Justice K.T.Thomas has, at the outset, identified the following issue: Whether the High Court of Bombay has jurisdiction to issue a writ under Article 226 of the Constitution in respect of any step taken or to be taken pursuant to the FIR registered by the Shillong Police in the State of Meghalaya ? 17. After having considered various other judgments, in paragraph 43, the Hon'ble Mr.Justice K.T.Thomas has held as follows: 43. We make it clear that the mere fact that FIR was registered in a particular State is not the sole criterion to decide that no cause of action has arisen even partly within the territorial limits of jurisdiction of another State. Nor are we to be understood that any person can create a fake cause of action or even concoct one by simply jutting into the territor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction, if such tribunal or authority exercises powers in such a manner as to affect the fundamental rights of the persons residing or authority carrying on the business within the jurisdiction of such High Court [vide M.K.Ranganathan and others v. The Madras Electric Tramways, AIR 1952 Mad 659]. The correctness of all these judgements was, later on, examined by a Constitution Bench of the Hon'ble Supreme Court, in Election Commission, India v. Saka Venkata Subba Rao, AIR 1953 SC 210 wherein, the Constitution Bench disapproved the view taken by the High Courts in the following words:- The power of the High Court to issue writs under article 226 of the Constitution is subject to the twofold limitation that such writs cannot run beyond the territories subject to its jurisdiction and the person or authority to whom the High Court is empowered to issue such writs must be amenable to the jurisdiction of the High Court either by residence or location within the territories subject to its jurisdiction. 23. After the above authoritative pronouncement of the Constitution Bench of the Hon'ble Supreme Court, it was made manifest that the jurisdiction of the High Court, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution. In order to maintain a writ petition a writ petitioner has to establish that a legal right claimed by him has prima facie either been infringed or is threatened to be infringed by the respondent within the territorial limits of the Court's jurisdiction and such infringement may take place by causing him actual injury or threat thereof. 26. After having referred to the said judgement and few more judgements in Nawal Kishore Sharma v. Union of India, (2014) 9 SCC 329, in para 16, the Hon'ble Supreme Court has held as follows:- Regard being had to the discussion made hereinabove, there cannot be any doubt that the question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limit of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. In order to maintain a writ petition, the petitioner has to establish that a legal right claimed by him has been infringed by the respondents within the territorial limit of the Court s jurisdiction 27. From the above settled position of law, it is crystal clear that for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the same has been committed either in full or in part within the territorial limits of the Said High Court. So far as the power of the High Court to entertain an appeal, revision, reference or petition for transfer is concerned, the situs of the Subordinate Court / Magistrate whose proceedings or order which is under challenge gives the jurisdiction to the High Court. So far as the inherent power saved under Section 482 of the Code of Criminal Procedure is concerned, it has not been either expressly or impliedly stated that the power can be exercised beyond the territorial limits of the High Court based on the cause of action. 33. In Navinchandra N.Majithia case (cited supra) the term cause of action has been referred to as though it has got relevance to the criminal law. The Division Bench in the said judgment has interchangeably used the term cause of action for the term place of commission of the crime . In the said judgment, though Hon'ble Justice K.T.Thomas, has made reference to Section 2(e) of the Code of Criminal Procedure, the Hon'ble Supreme Court has not specifically dealt with the question as to whether the term cause of action has got any relevance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay High Court was unquestionably available. The infusion of the concept of cause of action into the criminal dispensation has led to subsequent confusion countenanced in High Courts...... (Emphasis added) 37. Having said so, the Hon'ble Supreme Court in paragraph 16 categorically held that the civil law concept of cause of action is not applicable to criminal law at all in this country. In paragraphs 16(1) and 16(2) the Hon'ble Supreme Court held as follows: 16(1) Unlike civil actions, where the Plaintiff has the burden of filing and proving its case, the responsibility of investigating a crime, marshalling evidence and witnesses, rests with the State. Therefore, while the convenience of the Defendant in a civil action may be relevant, the convenience of the so called complainant/victim has little or no role to play in criminal prosecution. Keeping in perspective the presence of the word ordinarily in Section 177 of CrPC, we hasten to adumbrate that the exceptions to it are contained in the CrPC itself, that is, in the contents of the succeeding Section 178. The CrPC also contains an explication of complaint as any allegation to a Magistrate with a vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rily created by Section 19 of the Environmental Protection Act 1986, Section 11 of the Central Sales Tax Act 1956, Section 279 of the Income Tax Act, Sections 132 and 308, CrPC, Section 137 of the Customs Act etc. It would be idle to contend that the offence comes into existence only on the grant of permission for prosecution, or that this permission constitutes an integral part of the offence itself. It would also be futile to argue that the place where the permission is granted would provide the venue for the trial. If sanction is not granted the offence does not vanish. Equally, if sanction is granted from a place other than where the crime is committed, it is the latter which will remain the place for its prosecution. 38. From the above judgment of the larger Bench, now it is crystal clear that what is relevant for the High Court to entertain a petition under Section 482, is not the cause of action as the term cause of action is foreign to criminal law. In Navinchandra N.Majithia case the Hon'ble Supreme Court had not dealt with the question as to whether the power of the High Court under Section 482 of the Code could be exercised beyond the territorial limits of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
