Delhi High Court
Sunil Kumar vs P.R. Amarnath Singh & Anr. on 14 December, 2012
Author: P.K.Bhasin
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Crl. Rev. P.No. 575/2010
+ Date of Decision: 14th December, 2012
# SUNIL KUMAR ....Petitioner
! Through: Mr. S.P. Sinha, Advocate
Versus
$ P.R. AMARNATH SINGH & ANR. ...Respondents
Through: Mr. Manish Gupta, Advocate for R-1
Mr. M.N. Dudeja, APP for the State
CORAM:
* HON'BLE MR. JUSTICE P.K.BHASIN
ORDER
P.K.BHASIN, J:
This revision petition has been filed by the petitioner-
complainant under Section 397 read with Section 401 of the Code
of Criminal Procedure, 1973('Cr.P.C.') against the order dated
07.08.2010 passed by the Metropolitan Magistrate directing return
of the complaint filed by the petitioner-complainant under Section
138 of the Negotiable Instruments Act, 1881 against the
respondent on the ground that Delhi courts have no territorial
jurisdiction to entertain that complaint.
2. The petitioner-complainant had filed a criminal complaint
under Section 138 of the Negotiable Instruments Act, 1881 and
when the same was taken up for preliminary consideration for the
first time on 29.07.2010 the learned Magistrate called upon the
counsel for the petitioner-complainant to argue on the point of
territorial jurisdiction of the Courts in Delhi and then the matter
was adjourned on the request of the counsel and finally the
impugned order came to be passed. Feeling aggrieved by that
order this revision petition was filed by the petitioner-complainant.
3. The learned counsel appearing on behalf of the petitioner
submitted that the question of territorial jurisdiction was not to be
examined at the pre-cognizance stage. The learned counsel
appearing on behalf of the respondent, who was given notice of
this petition, supported the impugned order.
4. I am in full agreement with the submission of the learned
counsel for the petitioner-complainant that at the pre-cognizance
stage the Court below was not expected to consider whether it had
the territorial jurisdiction to try the complaint or not. That aspect
could have arisen for consideration only after cognizance had been
taken and trial was to take place. This is the settled legal position
as per the judgment of the Hon'ble Supreme Court in "Trisuns
Chemical Industry v. Rajesh Agarwal and others", (1999) 8
Supreme Court Cases 686. The relevant observations from this
judgment are re-produced below:-
"12........ But 'any' Magistrate of the First Class has the power to take
cognizance of any offence, no matter that the offence was committed within
his jurisdiction or not.
13. The only restriction contained in Section 190 is that the power to take
cognizance is "subject to the provisions of this Chapter." There are 9
Sections in Chapter XIV most of which contain one or other restriction
imposed on the power of a First Class Magistrate in taking cognizance of
an offence. But none of them incorporates any curtailment on such powers
in relation to territorial barrier. In the corresponding provision in the old
CrPC (1898) the commencing words were like these: "Except as
hereinafter provided." Those words are now replaced by "Subject to the
provisions of this chapter." Therefore, when there is nothing in Chapter
XIV of the Code to impair the power of a Judicial Magistrate of First Class
taking cognizance of the offence on the strength of any territorial reason it
is impermissible to deprive such a Magistrate of the power to take
cognizance of an offence of course, in certain special enactments special
provisions are incorporated for restricting the power of taking cognizance
of offences falling under such acts. But such provisions are protected by
non-obstante clauses. Any way that is a different matter.
14. The jurisdictional aspect becomes relevant only when the question of
enquiry or trial arises. It is therefore a fallacious thinking that only a
Magistrate having jurisdiction to try the case has the power to take
cognizance of the offence. If he is a Magistrate of the First Class his power
to take cognizance of the offence is not impaired by territorial restrictions.
After taking cognizance he may have to decide as to the Court which has
jurisdiction to enquire into or try the offence and that situation would reach
only during the post cognizance stage and not earlier.
15. Unfortunately, the High Court, without considering any of the aforesaid
legal aspects, rushed to the erroneous conclusion that the "judicial
magistrate of first class, Gandhidham has no power to take cognizance of
the offences alleged" merely because such offences could have been
committed outside the territorial limits of the State of Gujarat. Even
otherwise, without being apprised of the fuller conspectus a decision on the
question of jurisdiction should not have been taken by the High Court at a
grossly premature stage as this."
5. The impugned order thus cannot be sustained and has to be
set aside. This petition is accordingly allowed and the impugned
order is set aside and the matter is remitted back to the
Metropolitan Magistrate with the direction to take up the
complaint again to examine whether cognizance of any offence
needs to be taken or not and then to proceed further in accordance
with law. The complaint shall be taken up now on 14 th January,
2013 at 2 p.m. Since the respondent no.1 had not been summoned
as an accused he need not appear before the trial Court on the said
date.
P.K. BHASIN, J
DECEMBER 14, 2012
