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TMI Blog2020 (9) TMI 1305X X X X Extracts X X X X X X X X Extracts X X X X ..... ts have taken cognizance of the same offence and a question as to which of them should inquire into or try the offence has arisen, to decide the district where the inquiry or trial shall take place. Section 187 speaks of the powers of the Magistrate, in case where a person within his local jurisdiction, has committed an offence outside his jurisdiction, but the same cannot be inquired into or tried within such jurisdiction. Sections 188 and 189 deal with offences committed outside India. Clause (a) of Section 26 makes the provisions contained therein, subject to the other provisions of the Code. Therefore, a question arose before this Court in the State of Uttar Pradesh v. Sabir Ali [ 1964 (3) TMI 137 - SUPREME COURT] as to whether a conviction and punishment handed over by a Magistrate of first class for an offence under the Uttar Pradesh Private Forest Act, 1948 were void, in the light of Section 15(2) of the Special Act. Section 15(2) of Uttar Pradesh Private Forest Act made the offences under the Act triable only by a Magistrate of second or third class. Though the entire trial in that case took place before a Magistrate of second class, he was conferred with the powers of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. Accordingly, transfer petitions are dismissed. - V. Ramasubramanian, J. For Appearing Parties: Deepak Thukral, AAG, Vikas Singh, Neeraj Kishan Kaul, Sr. Advs., Nanda Devi Deka, Vikas Sharma, Bharat Bhushan, Divya Sharma, Mritunjay Singh, Aakanksha Kaul, Garima Bajaj, Varun Mathur, Akash Lamba, Sansakar Aggarwal, Manek Singh, Monika Gusain and Rajat Bhardwaj, Advs. JUDGMENT V. Ramasubramanian, J. 1. 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 is implicated as one of the Accused in those three cases has come up with the above transfer petitions. 2. 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 Kishan Kaul, learned Senior Counsel appearing for the de facto complainant, who is the second Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under Sections 114, 120-B, 406, 420, 467, 468, 471 and 216 of the Indian Penal Code. Likewise a charge-sheet was filed on 24.10.2019 in FIR No. 356/2019 for offences Under Sections 120-B, 406, 408, 420, 387 read with Section 34 of the Indian Penal Code. 7. The police also filed supplementary charge-sheets, on 06.01.2020 in the first case and on 08.11.2019 in the third case. 8. Contending (i) that no part of the cause of action arose in Gurugram to enable the de facto complainant to lodge a complaint in the Gurugram Police Station; (ii) that while first loan was sanctioned at Delhi, the second loan was sanctioned 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; (iii) that the second Respondent-de facto complainant has deliberately filed the complaint at Gurugram, as the promoter of the de facto complainant wields lot of influence at Gurugram and (iv) that the Petitioner will not get a fair trial at Gurugram, the Petitioner has come up with the above transfer petitions. 9. Thus, in effect, transfer is sought primarily on 2 ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he second Respondent is guilty of perjury by claiming even before this Court, as though they have an office in Gurugram. The Petitioner has also taken out an application Under Section 340 of the Code of Criminal Procedure for prosecuting the officials of the second Respondent for committing perjury through their claim that the second Respondent has an office at Gurugram. 15. Mr. Neeraj Kishan Kaul, learned Senior Counsel appearing for the second Respondent contended that the question whether any part of the cause of action arose within the local limits of jurisdiction of the Courts in Gurugram, is a question of fact to be established by evidence and that the same cannot be gone into in the transfer petitions. In support of this proposition, he relied upon the decision of this Court in Abhiram Veer v. North Eastern Regional Agricultural Marketing Corporation Ltd. 2000 (10) SCC 433. He also contended that insofar as the loan granted to Zillion Infraprojects limited is concerned, the property offered as security is located in Gurugram and that the second Respondent was actually sharing the office space of a company which is a 100% subsidiary of the second Respondent. Therefore, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a Magistrate Under Section 201 of the Code, to return a complaint. The power is limited in the sense (a) that it is available before taking cognizance, as Section 201 uses the words Magistrate who is not competent to take cognizance and (b) that the power is limited only to complaints, as the word complaint , as defined by Section 2(d), does not include a police report . 20. Chapter XIII of the Code of Criminal Procedure, 1973 contains provisions relating to jurisdiction of criminal Courts in inquiries and trials. The Code maintains a distinction between (i) inquiry; (ii) investigation; and (iii) trial. The words inquiry and investigation are defined respectively in Clauses (g) and (h) of Section 2 of the Code. 21. The principles laid down in Sections 177 to 184 of the Code (contained in Chapter XIII) regarding the jurisdiction of criminal Courts in inquiries and trials can be summarized in simple terms as follows: (1) Every offence should ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. This Rule is found in Section 177. The expression local jurisdiction found in Section 177 is defined in Section 2(j) to mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accused person. (12) An offence which includes the possession of stolen property, may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property was possessed by any person, having knowledge that it is stolen property. (Nos. 8 to 12 are found in Section 181) (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 jurisdiction such letters or messages were sent or received. (14) An offence of cheating and dishonestly inducing delivery of the property may be inquired into or tried by a Court within whose local jurisdiction the property was delivered by the person deceived or was received by the Accused person. (15) Some offences relating to marriage such as Section 494, Indian Penal Code (marrying again during the life time of husband or wife) and Section 495, Indian Penal Code (committing the offence Under Section 494 with concealment of former marriage) may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with the spouse by the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny Magistrate, not being empowered by law in this behalf, does any of the following things, namely: ---------- (l) tries an offender: ---------- his proceedings shall be void 24. Then comes Section 462, which saves the proceedings that had taken place in a wrong sessions division or district or local area. But this is subject to the condition that no failure of justice has occasioned on account of the mistake. Section 462 reads as follows: 462. Proceedings in wrong place. - No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice. 25. A cursory reading of Section 461(l) and Section 462 gives an impression that there is some incongruity. Under Clause (l) of Section 461 if a Magistrate not being empowered by law to try an offender, wrongly tries him, his proceedings shall be void. A proceeding which is void Under Section 461 cannot be saved by Section 462. The focus of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wers of a Magistrate of first class, before he pronounced the Judgment. This Court held that the proceedings were void Under Section 530(p) of the Code of Criminal Procedure, 1898 (as it stood at that time). It is relevant to note that Section 461(l) of the Code of 1973 is in pari materia with Section 530(p) of the Code of 1898. 30. What is now Clause (a) of Section 26 of the Code of 1973, is what was Section 28 of the Code of 1898. The only difference between the two is that Section 28 of the Code of 1898 referred to the eighth column of the second schedule, but Section 26(a) of the Code of 1973 refers to the first schedule. 31. Similarly, Clause (b) of Section 26 of the Code of 1973 is nothing but what was Section 29 of the Code of 1898. 32. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecifically held by this Court in Raj Kumari Vijh (supra) 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. However, territorial jurisdiction, according to this Court 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. 37. 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 jurisdiction, the case would normally be covered by the saving Clause Under Section 531 of the Code of 1898 (present Section 462 of the Code of 1973). 38. From the above discussion, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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