Madras High Court
Maria Ramesh vs The State Rep. By on 11 August, 2022
W.P.Nos.2688 & 25129 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 02.08.2022
Date of Verdict : 11.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.Nos.2688 & 25129 of 2021
and W.M.P.Nos.3017, 3018, 3019, 26488 & 26490 of 2021
1. Maria Ramesh
2. P.K.Ramesh @
Pallavaram Kothandaraman Ramesh ... Petitioners in W.P.
No.2688 of 2021
S.Venkatakrishnan ... Petitioner in W.P.
No.25129 of 2021
Vs.
1. The State rep. by
The Assistant Commissioner of Police,
Chennai -CCB,
CCB-1, Chennai.
(CCB Cr.No.253/2019)
2. The State rep by
The Inspector of Police,
Delhi -EOW,
(FIR No.218 of 2020)
3. SH Hans Sachdev
4. Pee Empro Exports (P) Ltd.,
Rep by Prit Mohinder Singh Uppal,
504, Skyline house,
85 Nehru place,
New Delhi – 110 019. ... Respondents in
both W.Ps.
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Common Prayer: Writ Petitions filed under Article 226 of the Constitution of
India praying to issue a Writ of Certiorari to call for the records which
culminated into the FIR No.218 of 2020 dated 16.12.2020 on the file of the
second respondent and quash the same as it is violation of Article 21 of the
Constitution of India.
For Petitioners in
W.P.No.2688 of 2021 : Mr.B.Kumar, Senior Counsel
For Mr.Gaurav Chatterjee
For petitioner in
W.P.No.25129 of 2021 : Mr. M.S.Krishnan, Senior Counsel
For Mr.S.Ramachandran
For Respondents in
both W.Ps.
For R1 : Mr.A.Damodaran
Additional Public Prosecutor
For R2 : Mr.J.Madanagopal Rao
For R3 & R4 : Mr.Maninder Singh, Senior Counsel
For Mr.Divakaran & Ms.Smriti Asmita
COMMON ORDER
These Writ Petitions have been filed to quash the FIR in Crime
No.218 of 2020 on the file of the second respondent registered for the offences
punishable under Sections 406, 420 & 120B of IPC as against the petitioners.
2. The petitioners in both Writ Petitions are arrayed as accused in
Crime No.218 of 2020 on the file of the second respondent registered for the
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offences under Sections 406, 420, 120B of I.P.C., as A1, A2 & A7. The
respondents 3 & 4 are complainants lodged complaint before the second
respondent alleging that the accused persons assured them that the project viz.,
USHERA situated at Kancheepuram, Chennai, is well funded by M/s. Call
Express Construction (India) Private Limited for which, a promotional event
was organized at Maurya Sheraton Hotel, New Delhi on 27.02.2015. In that
promotional event, the complainants were induced and misrepresented
regarding the project called USHERA. Therefore, the complainants handed
over post dated cheques to the accused persons.
3. As per the sale & construction agreements, the project has to be
completed within three years from the date of signing of the construction
agreement i.e., 05.06.2015. Further alleged that one of the accused traveled to
New Delhi to met with victims and got signed the loan application forms as
well as the construction agreements. However, the construction of the said
project was stopped in the year 2017 and the accused persons failed to handed
over the flats. All the accused persons connived together misappropriated the
amount which was invested by the complainant as follows :-
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Name of the victims Payment made Payment made from Total Payment (INR)
through LIC (INR) own/family account
Hans Sachdev 1,93,40,000 37,50,000 1,30,90,000
Harpreet Sachdev 1,94,40,000 37,50,000 2,31,90,000
Charu Sachdev 2,01,00,000 37,50,000 2,38,50,000
Priya Sachdev 1,87,00,000 37,50,000 2,24,50,000
M/s. Pee Empro 2,31,18,352 2,31,18,352
Exports Pvt. Ltd (Prit
Mohinder Singh
Uppal)
M/s. Bir Hotels (Anis 1,00,00,000 1,00,00,000
Bir)
M/s.CTC Geo 1,49,00,000 1,49,00,000
technical Pvt Ltd
through Sh. Jessa
Chawala
Suubash Sachdev 73,79,000 73,79,000
4. The accused persons have collected money in the name of the
companies called M/s. Call Express Engineering Pvt. Ltd., Chennai, M/s. Call
Express Construction (India) Pvt. Ltd., Chennai, M/s. Callex Creations Pvt.
Ltd., Chennai, M/s. Callex Australia Pvt. Ltd., Australia. All the accused
persons are Directors and Auditor of the said companies. On 27.02.2015, the
function was organized in the Hotel Maurya Sheraton, New Delhi and a sum of
Rs. 8,13,603/- was paid by the company M/s. Call Express Construction India
Pvt. Ltd. In the said hotel, the accused persons had stayed on 27.02.2015 &
28.02.2015.
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5. While pending the investigation, the petitioner filed the present
Writ Petitions before this Court to quash the FIR registered in Crime No. 218
of 2020 on the file of the second respondent. This Court admitted the Writ
Petitions and also granted stay of all further proceedings in Crime No.218 of
2020 on the file of the second respondent by an order dated 08.02.2021.
Aggrieved by the same, the respondents 3 & 4 herein filed an appeal before the
Hon'ble Supreme Court of India in S.L.P.No.1806 of 2021 and after
considering the submission made by the respondent 3 & 4 with regards to
territorial jurisdiction of this Court to entertain these Writ Petitions, the
Hon'ble Supreme Court of India by an order dated 04.10.2021 set aside the
interim order passed by this Court and also directed this Court to decide the
preliminary objection of territorial jurisdiction in the first place. As directed by
the Hon'ble Supreme Court of India, the learned Senior Counsel appearing for
the respondents 3 & 4 raised objection with regard to maintainability of these
Writ Petitions before this Court.
6. Mr.B.Kumar, learned Senior Counsel appearing for the petitioners
in Crl.O.P.No.2688 of 2021 raised the following grounds to maintain the Writ
Petitions before this Court:- Even according to the respondents 3 & 4, the
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entire transactions happened within the territorial jurisdiction of this Court
viz., at Chennai. The father of the third respondent already lodged complaint
before the City Crime Branch, Chennai, and the same was registered in Crime
No.253 of 2019 as against the petitioners for the offences under Sections 406,
420, 120B of IPC for the very same set of allegations. After completion of
investigation, it was closed as mistake of fact and filed referred charge sheet.
The father of the third respondent filed protest petition and it is pending before
the jurisdictional Court. Except the meeting convened in the hotel situated at
New Delhi, there is absolutely no cause of action to lodge complaint before the
second respondent. Even assuming that part of cause of action arose at New
Delhi, major part of cause of action arose at Chennai. Therefore, this Court has
got jurisdiction to entertain the Writ Petitions challenging the FIR registered
by the second respondent.
6.1. He mainly relied upon the Article 226 sub Clause 2 of the
Constitution of India and submitted that this Court has got jurisdiction to
entertain the Writ Petitions. He further submitted that the entire cause of action
arose at Chennai as the land situated within the jurisdiction of this Court;
construction put in the land within the jurisdiction of this Court; the agreement
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entered between them within the jurisdiction of this Court and the payment
also was made within the jurisdiction of this Court. Except the meeting
conveyed at New Delhi, the entire cause of action arose within the jurisdiction
of this Court. Therefore, this Court has got jurisdiction to entertain these Writ
Petitions. In fact, this Court already admitted these Writ Petitions and also
granted exparte interim order. However, now it has been set aside by the
Hon'ble Supreme Court of India and remanded the matter back to this Court
for fresh consideration. In support of his contention, he relied upon the
following judgments:-
i. (2002) 7 SCC 640 – Nainchandra N. Majithia Vs. State of
Maharashtra and others.
ii. (2014) 9 SCC 129 – Dashrath Rupsingh Rathod Vs. State of
Maharashtra and anr.
iii. (2015) 1 LW (Crl) 395 – S.Ilanahai Vs. The State of Mumbai.
iv. Order dated 29.11.2018 in W.A.(MD)NO.1018 of 2017 passed by this
Court.
v. (2005) 6 SCC 292 – Vadilal Chemicals Ltd., Vs. State of A.P and anr.
vi. (2021) 2 LW (Crl) 744 – Ravi Parthasarathy Vs. State rep. by the SI.
7. Mr.M.S.Krishnan, learned Senior Counsel appearing for the
petitioner in W.P.No.25129 of 2019 submitted that there are totally seven
accused in which the petitioner is arrayed as A7. On the complaint lodged by
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the third and fourth respondents, the second respondent registered the
impugned FIR in Crime No.218 of 2020 for the offences under Sections 406,
420, 120B of I.P.C. The petitioner is a Chartered Accountant by profession and
he has been started practicing in the year 1986. M/s. Call Express Construction
(India) Private Limited is one of his clients and he has been undertaking its
statutory audit since the year 2006. The second respondent registered the
impugned FIR solely on the allegation that the accused persons organized an
even for launch of USHERA Project at Hotel Maurya Sheraton, Chanakyapuri,
New Delhi, in the month of February 2015. Except the said allegation, other
allegations pertaining to the transactions or events as alleged in the FIR had
occurred at Sholinganallur Village & Taluk, Kancheepuram District, Tamil
Nadu.
7.1. He further submitted that the petitioner had no authority to sign
any cheque or carrying out any banking/financial transactions for or on behalf
of the company. Therefore, the petitioner is not involved in any crime and all
the allegations made in the FIR as against the petitioner are malicious,
vindictive and without any merit. That apart, the entire allegations are purely
civil in nature and no ingredients to attract any of the offence as alleged by the
complainant. In fact, the present impugned FIR has been lodged by the third
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respondent suppressing the earlier complaint lodged by his father. After
registration of the present FIR, the earlier complaint was closed as “mistake of
fact” as against which the father of the third respondent also filed protest
petition and it is pending. Even according to the defacto complainant, the
entire cause of action arose at Chennai. Therefore, this Court has got
jurisdiction to entertain the present writ petitions to quash the FIR. The
petitioner has knowledge about the transactions of sale and consideration
agreement in his capacity of being statutory auditor of the company. His duty
is to disclose the details in the balance sheet which shall eventually be filed
before the Registrar of Companies and Income Tax authorities. Therefore, the
petitioner has no control or even concern as to the company is to be managed
or being managed or how shares are allotted or how the consideration is fixed.
The learned Senior Counsel also adopted the submissions made by the learned
Senior Counsel who appeared for other accused persons in respect of
maintainability of this Writ Petition.
8. Per contra, Mr.Maninder Singh, learned Senior Counsel appearing
for the respondents 3 & 4 submitted that the Hon'ble Supreme Court of India
directed this Court to decide with regard to territorial jurisdiction of this Court
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to entertain these Writ Petitions as first issue. On the complaint lodged by the
respondents 3 & 4 and others, the second respondent registered the FIR in
Crime No.218 of 2020 for the offences punishable under Sections 406, 420,
120B of IPC. There are totally seven accused in which, the petitioners are
arrayed as A1, A2 and A7. After registration of the FIR, the concerned
jurisdictional Magistrate has seized up the said FIR and also the investigation
is off-way through on the file of the second respondent herein. Once the
second respondent registered the FIR, this Court has no territorial jurisdiction
to deal with the FIR registered by the second respondent.
8.1. He further submitted that Article 226 (2) of the Constitution of
India, is applicable only in respect of the civil cases and not for the Writ
Petitions. The entire cause of action arose within the jurisdiction of the second
respondent, since the accused persons organized the function at Hotel Maurya
Sheraton, New Delhi, on 27.02.2015, where the defacto complainant booked
and paid part of the amount to the accused persons. All the accused persons
were stayed there on 27 & 28th February, 2015. The said promotional event was
organized at New Delhi and the respondents 3 & 4 were induced by the
accused persons and also misrepresented with regard to the project and
received post dated cheques. They entered into agreement only at New Delhi
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as such major portion of cause of action arose only at New Delhi. In support of
his contention, he relied upon the following judgments :-
i. (2020) SCC Online Sc 654 – Rhea Chakraborty Vs. State
of Bihar & ors
ii. 2011 SCC Online All 612 - Nishant Mishra and ors Vs
State of U.P and ors.
iii. (2009) 11 Scc 286 – Rajendra Ramachandra Kavalekar
Vs. State of Maharashtra & anr.
iv. Order dated 22.08.2012 in W.P.SR.Nos.69241, 39245 &
69249 of 2017 passed by this Court.
v. Order dated 08.01.2019in S.B.Criminal Writ No.211 of
2016 -Anubhav Ajmani Vs. State of Madhya Pradesh.
9. Mr.J.Madanagopal Rao, learned counsel appearing for the second
respondent submitted that after registration of FIR, during the course of
investigation, notice under Section 91 Cr.P.C., was served to M/s.Jaypee
Hotels, Rajender Nagar, New Delhi regarding stay of the accused persons in
month of October & November, 2016. A separate notice was also served to the
Indigo Airline about the accused travel on relevant time from Chennai to New
Delhi. On receipt of the report revealed that the accused persons traveled from
Chennai to New Delhi and they also stayed at Jaypee Hotels, New Delhi. In
fact, even before that, the notice under Section 41A of Cr.P.C., was also served
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to the accused persons. However they failed to appear due to Covid-19
pandemic situation. After registration of FIR, it has been seized up by the
jurisdictional Court viz., the Chief Metropolitan Magistrate, Patiala House
Court, New Delhi. The investigation also commenced and it is under progress.
Therefore, this Court has no territorial jurisdiction to entertain these Writ
Petitions, since already the accused persons filed anticipatory bail petition
before the jurisdiction Court at New Delhi and the notice issued under Section
41A of Cr.P.C., was also under challenge before the Hon'ble High Court of
New Delhi.
10. Heard Mr.B.Kumar, learned Senior Counsel appearing for the
petitioners in Crl.O.P.NO.2688 of 2021, Mr.M.S.Krishnan, learned Senior
Counsel appearing for petitioner in Crl.O.P.No.25129 of 2021,
Mr.A.Damodaran, learned Additional Public Prosecutor appearing for the first
respondent, Mr.J.Madanagopal Rao, learned counsel appearing for the second
respondent and Mr.Maninder Singh, learned Senior Counsel appearing for the
respondents 3 & 4 in both petitions.
11. Both the Writ Petitions have been filed by the petitioners
challenging the FIR in Crime No.218 of 2020 registered for the offences
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punishable under Sections 406, 420, 120B of IPC on the file of the second
respondent. The crux of the complainant is that the defacto complainants are
home buyers who were invested their money in the USHERA project, launched
and promoted by the petitioners and others through their family-owned
company called M/s.Call Express Construction India Private Limited, in which
both the petitioners in W.P.No.2861 of 2021 are share holders.
12. All the accused persons assured the home buyers that the project
would be completed and handed over in three years, as the petitioner had
dishonest intention since inception and their sole purpose was to siphon off the
money collected from the home buyer, financial institutions as well as investor
abroad and in order to swindle the entire money, various shell companies were
created in India and abroad. One such company was created in Australia viz.,
Callex Australia Pvt. Ltd, which is managed and run by the son of the
petitioner in W.P.No.26881 of 2021.
13. Therefore, the defacto complainants lodged complaint on
18.08.2020 before the second respondent for the offence of cheating, fraud,
Criminal breach of trust, syphoning off funds, delay in handing over the
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possession of the flats as promised by the accused persons. After detailed
preliminary enquiry, the second respondent registered the FIR which is
impugned in these Writ Petitions. Now the second respondent commenced
investigation and it is pending.
14. In fact, the second respondent issued notice under Section 41A of
Cr.P.C., on 29.12.2020 to the accused persons. Even after receipt of the same,
the petitioners have not chosen to challenge the same before the Hon'ble High
Court of New Delhi. The petitioners in W.P.No.2688 of 2021 filed this Writ
Petition to quash the FIR registered in Crime No.281 of 2020 on the file of the
second respondent and this Court by an order dated 08.02.2021, admitted the
Writ Petition and stayed all further proceedings of the investigation in Crime
No.218 of 2020. Aggrieved by the same, the defacto complainant filed Special
Leave Petition before the Hon'ble Supreme Court of India in S.L.P.No.2806 of
2021. The Hon'ble Supreme Court of India by an order dated 09.04.2021
granted interim stay of the order passed by this Court dated 08.02.2021.
15. In the mean while, the petitioners in W.P.No.2688 of 2021 filed
anticipatory bail petition before the learned Assistant Session Judge, Patiala
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House Court, New Delhi in Crime No.218 of 2020 and the same was dismissed
as withdrawn. Further directed the Investigating Officer to serve notice of
seven working days before securing them. Likewise, the petitioner in
W.P.No.25129 of 2021 filed anticipatory bail petition before the learned
Assistant Session Judge, Patiala House Court, New Delhi and the said petition
also dismissed as withdrawn and also granted protection for seven days notice
before securing him.
16. In the meantime, by an order dated 04.10.2021, the Hon'ble
Supreme Court of India passed order thereby set aside the interim order passed
by this Court dated 08.02.2021. Further ordered that since the matter is
pending before this Court, the Hon'ble Supreme Court of India refrain to
express opinion on this aspect to the matter and leave it for the parties to raise
objections including territorial jurisdiction before this Court and if such
objection is being raised, it is expected to decide the preliminary objection of
territorial jurisdiction in the first place. Accordingly, the learned Senior
Counsel appearing for the respondents 3 & 4 raised preliminary objections as
regards to the maintainability of the Writ Petitions on the ground of territorial
jurisdiction of this Court to entertain the Writ Petitions to quash the FIR
registered at New Delhi.
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17. The impugned FIR in these Writ Petitions has been registered by
the second respondent in New Delhi. While investigating the crime, the second
respondent issued notice under Section 41A of the Cr.P.C., to the accused
persons. After registration of FIR, it has been duly sent to the learned Chief
Metropolitan Magistrate, Patiala House Court, New Delhi, who has
jurisdiction over the matter to take cognizance under Section 190 of Cr.P.C., in
pursuant to the registration of FIR. The second respondent have already
commenced investigation and in fact they have been freezed the accounts of
the petitioners.
18. The learned Senior Counsel appearing for the petitioners relied
upon the judgement of the Hon'ble Supreme Court of India reported in 2007
SCC 640 in the case of Navinchandra Vs. State of Maharashtra & ors and
emphasis that the this Court has got territorial jurisdiction to entertain the Writ
Petition despite the fact that the FIR impugned in these Writ Petitions is
registered in New Delhi. The Hon'ble Supreme Court of India relied upon the
Article 226 of the Constitution of India which provides the power to High
Courts to issue certain writs reads as follows :-
“226. Power of High Courts to issue certain writs.—
(1) Notwithstanding anything in article 32 every
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High Court shall have power, throughout the territories in
relation to which it exercises jurisdiction, to issue to any
person or authority, including in appropriate cases, any
Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, or
any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue
directions, orders or writs to any Government, authority or
person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the
cause of action, wholly or in part, arises for the exercise of
such power, notwithstanding that the seat of such
Government or authority or the residence of such person is
not within those territories”
19. Further held that Clause (2) of Article 226 of the Constitution of
India is clear that the maintainability or otherwise of the Writ Petition in the
High Court depends on whether cause of action for filing the same arose,
wholly or in part, within the jurisdiction of that Court. In that case, cause of
action arose to register the FIR are available in both places viz., Meghalaya as
well as at Mumbai. Therefore, the Hon'ble Supreme Court of India transferred
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the investigation pending from the file of Meghalaya Police to the file of
Mumbai Police. Further held that mere the 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 jurisdiction of the other State. The
place of residence of present moving a High Court is not the criterion to
determine the contours of the cause of action in that particular Writ Petition.
The High Court before which the Writ Petition is filed must ascertain whether
any part of the cause of action has arisen within the territorial jurisdiction of
that Court. It depends upon the facts in each cases. The Hon'ble Supreme Court
of India also held that the Writ Petition can be entertained even a part of the
cause of action arose, after 15th amendment of the Article 226 of the
Constitution of India.
20. In the case on hand the second respondent registered the FIR
impugned in these Writ Petitions for the reason that the marketing event to
induce the defacto complainants was held at Maurya Sheraton Hotel at New
Delhi. All the payments were made to the accused from the accounts of the
defacto complainant which are in New Delhi. The agreements were signed in
New Delhi as well as notarized in New Delhi on 18.11.2016. The power of
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attorney has been issued by the defacto complainants in favour of one
Vijayalakshmi Gopi, President of the Company run by the petitioners on
18.11.2016 in New Delhi. The loan agreement was signed by the defacto
complainants in New Delhi. All the defacto complainants are living in New
Delhi. Therefore, the judgment of the Hon'ble Supreme Court of India is not
applicable to the case on hand. Hence, the second respondent rightly registered
the FIR and the Hon'ble High Court of New Delhi alone has exclusive
jurisdiction to deal with the impugned FIR.
21. The learned Senior Counsel appearing for the respondents 3 & 4
relied upon the judgment of the Hon'ble Division Bench of the Allahabad High
Court reported in 2011 SCC online All 612 in the case of Nishant Mishra &
ors Vs. State of U.P. & ors held that if the investigation is being carried out at
a particular place in another State and if the High Court in another State can
interfere with the investigation because part of the cause of action is
connected with that State, it could give rise to an anomalous position because
different High Court may exercise jurisdiction over the same subject matter in
different ways. Also as the investigation had commenced in other State,
where the report etc were registered, obtaining of police remand and bail etc
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would ordinarily be considered by the High Court of the said State.
Therefore, the concerned territorial High Court would have jurisdiction
because it was the superior Court before which the said subordinate Courts
would submit the reports of investigation or remands etc.
22. As stated supra, the second respondent now registered the FIR.
Thereafter, the accused persons filed anticipatory bail petitions before the
learned Additional Sessions Judge, Patiala House Court, New Delhi and the
same were dismissed and issued direction to the second respondent to issue
notice under Section 41 A of Cr.P.C., after giving sufficient time. The said
order was challenged by the defacto complainants before the Hon'ble High
Court of New Delhi in Crl.M.C.Nos.2848 & 2842 of 2022 and both are
pending. That apart, after registration of FIR, the learned Chief Metropolitan
Magistrate, New Delhi, has seized the FIR and it is pending. Therefore, the
Hon'ble High Court of New Delhi alone has got jurisdiction to deal with the
FIR impugned in this Writ Petitions.
23. The learned Senior Counsel appearing for the respondents 3 & 4
also relied upon the judgement of this Court dated 22.08.2017 passed in
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W.P.SR.Nos.69241, 69245 & 69249 of 2017 in the case of Karthi P.
Chidambaram Vs. Superintendent of Police, which held as follows:-
“32.According to the writ petitioners, with regard to
territorial jurisdiction, part of the cause of action arises in
Chennai that too within the jurisdiction of this Court.
Therefore, this Court has territorial jurisdiction over the
subject matter and this Court has territorial jurisdiction to
entertain these writ petitions.
33.According to the prosecution, though part of cause
of action arises in Chennai, but the FIR was registered in
New Delhi, the FIR was sent to the Special Judge CBI
Cases, Patiala House Courts, New Delhi and the Special
Court, New Delhi has seized the matter and now the Delhi
High Court only has territorial jurisdiction over the subject
matter under Article 227 of the Constitution of India,
because the Delhi High Court has superintendence over all
the Courts and tribunals throughout the territories in
relation to which it exercises jurisdiction.
........................
46.As already conclusively held by the Hon'ble
Supreme Court in Dasrath Rupsingh Rathod V. State of
Maharashtra, reported in (2014) 9 SCC 129, the concept of
"part of cause of action", is absolutely irrelevant and has no
application in criminal proceedings and only that High
Court would entertain a prayer for quashing which has the
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supervisory jurisdiction over the jurisdictional court which
is monitoring the investigation as per CrPC.
.................
77. As already narrated above, the FIR is registered
at New Delhi and also the same has been produced before
the Special Judge CBI cases, Patiala House Courts, New
Delhi and after investigation also the charge sheet will be
filed before the Special Court, New Delhi. As per the
doctrine of forum convenience, since because part of the
cause of action arises in Chennai, the Court will not
constitute to determining the factor compelling the Court to
entertain the matter. Further, as held above, the writ
petitions are maintainable before this Court and this Court
has territorial jurisdiction. As admitted by both the counsel
the writ petitions are maintainable. As this Court held that
this Court has territorial jurisdiction, considering the facts
and circumspection of the case, that the FIR is registered at
New Delhi and produced before the Special Judge CBI
cases, Patiala House Courts, New Delhi against the
petitioners herein and other unknown persons/officials for
the offences constituted under Section 120B r/w.420
and Sections 8 and 13(2) r/w.13(1)(d) of the Prevention of
Corruption Act, 1988 relating to the officials in the Ministry
of Finance Department, Government of India, New Delhi
and Further, the petitioners are businessmen and their
companies are involved in the issue, hence, they would not
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have any impediment or any financial crisis to approach the
Delhi High Court.
78. Under the said circumstances, this Court is not
entertaining these writ petitions, for the reason that this
Court is inclined to adopt the doctrine of forum
convenience, that being so no prejudice would be caused to
the petitioners and also they are having an alternative
remedy to approach the Delhi High Court for the very same
relief, which has superintendence power over the Special
Court for CBI Cases at New Delhi which is within its
jurisdiction. In this case, though the writ petitions are
maintainable and this Court has territorial jurisdiction,
however, in the interest of justice and in order to avoid
conflicting view, in case any one of the party approaches
before the Delhi High Court or Bombay High Court for the
very same relief, this Court is inclined to adopt the doctrine
of forum convenience.”
24. As per the doctrine of forum convenience, since because part of
the cause of action arose in Chennai, this Court will not constitute to
determining the factor compelling this Court to entertain the matter. Even if a
small part of cause of action arises within the territorial jurisdiction of the
High Court, the same by itself may not be considered to be a determinative
factors compelling the High Court to decide the matter on merit. In appropriate
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cases, the Court may refuse to exercise its discretionary jurisdiction by
invoking the doctrine of forum convenience. The principle of forum
convenience in its ambit a sweep encapsulates the concept that the cause of
action arising within the jurisdiction of the Court will not itself constitute to be
the determining factor compelling the Court to entertain the matter.
25. As stated supra, this Court has no jurisdiction to deal with the
impugned FIR since it is registered by the second respondent within the
jurisdiction of the Hon'ble High Court of New Delhi. Hence, this Court is
inclined to adopt the doctrine of forum convenience that being so no prejudice
would be caused to the petitioners as they have alternative remedy to approach
the Hon'ble High Court of New Delhi, which has superintendence power over
the trial Court at New Delhi which is within its jurisdiction.
26. It is also relevant to rely upon the judgement of this Court in the
case of S.Ilanahai Vs. The State of Mumbai in Crl.O.P.No.22498 of 2014
dated 13.01.2015 in which, this Court held that though it may be true that a
part of offence has been committed within the State of Tamil Nadu, since the
situs of the authority who has registered the crime falls outside the territorial
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limits of this Court, this petition is not at all maintainable before this Court.
This Court also dealt with the issue in detailed manner with regard to the term
“cause of action” as discussed by the Hon'ble Supreme Court of India in the
case of Navinchandra Vs. State of Maharashtra & ors and the relevant
paragraphs are extracted hereunder :-
“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 to the jurisdiction
of the High Court under Section 482 of the Code of
Criminal Procedure.
34. Subsequently, a larger Bench of the Hon'ble
Supreme Court consisting of three Judges in Dashrath
Rupsingh Rathod Vs. State of Maharashtra reported in
(2014) 9 SCC 129 had occasion to notice the said judgment
of the earlier Division Bench in Navinchandra N. Majithia
case (cited supra), where the Hon'ble Supreme Court dealt
with the territorial jurisdiction for filing a complaint for
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offence under Section 138 of the Negotiable Instruments
Act.
35. Interestingly, the term "cause of action" is
employed in section 142(b) of the Negotiable Instruments
Act. For better understanding, let us have a look into
Section 142, which reads as follows:
"Section 142. Cognizance of offences.-Notwithstanding
anything contained in the Code of Criminal Procedure,
1973 (2 of 1974),-
(a) no court shall take cognizance of any offence
punishable under section 138 except upon a complaint, in
writing, made by the payee or, as the case may be, the
holder in due course of the cheque;
(b) such complaint is made within one month of the date on
which the cause-of-action arises under clause (c) of the
proviso to section 138;
(c) no court inferior to that of a Metropolitan Magistrate or
a Judicial Magistrate of the first class shall try any offence
punishable under section 138."
36. In the said judgment while referring to
Navinchandra N. Majithia case, in paragraph 13, the
Hon'ble Supreme Court has observed as follows:
"13. We are alive to the possible incongruities that are
fraught in extrapolating decisions relating to civil law onto
criminal law, which includes importing the civil law
concept of "cause of action" to criminal law which
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essentially envisages the place where a crime has been
committed empowers the Court at that place with
jurisdiction. In Navinchandra N. Majithia v. State of
Maharashtra (2000) 7 SCC 640 this Court had to consider
the powers of High Courts under Article 226(2) of the
Constitution of India. Noting the presence of the phrase
"cause of action" therein it was clarified that since some
events central to the investigation of the alleged crime
asseverated in the Complaint had taken place in Mumbai
and especially because the fundamental grievance was the
falsity of the Complaint filed in Shillong, the writ
jurisdiction of the 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......."
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
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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 view to his taking action in respect of the
commission of an offence; not being a police report.
Prosecution ensues from a Complaint or police report for
the purpose of determining the culpability of a person
accused of the commission of a crime; and unlike a civil
action or suit is carried out (or "prosecuted") by the State
or its nominated agency. The principal definition of
"prosecution" imparted by Black's Law Dictionary 5th
Edition is
"(a) criminal action; the proceeding instituted and carried
on by due process of law, before a competent Tribunal, for
the purpose of determining the guilt or innocence of a
person charged with crime."
These reflections are necessary because Section 142(b) of
the NI Act contains the words, "the cause of action arises
under the proviso to Section 138", resulting arguably, but
in our opinion irrelevantly, to the blind borrowing of
essentially civil law attributes onto criminal proceedings.
16(2) We reiterate that Section 178 admits of no debate that
in criminal prosecution, the concept of "cause of action",
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being the bundle of facts required to be proved in a suit and
accordingly also being relevant for the place of suing, is
not pertinent or germane for determining territorial
jurisdiction of criminal Trials. Section 178, CrPC explicitly
states that every offence shall ordinarily be inquired into
and tried by a Court within whose local jurisdiction it was
committed. Section 179 is of similar tenor. We are also
unable to locate any provision of the NI Act which indicates
or enumerates the extraordinary circumstances which
would justify a departure from the stipulation that the place
where the offence is committed is where the prosecution has
to be conducted. In fact, since cognizance of the offence is
subject to the five Bhaskaran components or concomitants
the concatenation of which ripens the already committed
offence under Section 138 NI Act into a prosecutable
offence, the employment of the phrase "cause of action" in
Section 142 of the NI Act is apposite for taking cognizance,
but inappropriate and irrelevant for determining
commission of the subject offence. There are myriad
examples of the commission of a crime the prosecution of
which is dependent on extraneous contingencies such as
obtainment of sanction for prosecution under Section 19 of
the Prevention of Corruption Act 1988. Similar situation is
statutorily 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
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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."
27. This Court relied upon the judgements of the Hon'ble Supreme
Court of India in the case of Dashrath Rupsingh Rathod Vs. State of
Maharashtra and anr reported in (2014) 9 SCC 129 in which the Hon'ble
Supreme Court of India held that the civil law concept of “part of cause of
action” cannot be borrowed for the purpose of ascertaining jurisdiction in
criminal matters. The civil concept of “part of cause of action” cannot be
imported in all the matters, where the matter of criminal proceedings or the
proceedings arising there from, in respect of whether the petitioner invokes the
jurisdiction of the High Court under Article 226 of the Constitution of India or
under Section 482 of Cr.P.C. The infusion of the concept of cause of action
into criminal dispensation had led to subsequent confusion countenanced in
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High Courts. Therefore, the concept of cause of action which is relevant to
civil law cannot be imported to criminal law that too for the cause of action
needs to register the FIR and the second respondent rightly registered the FIR,
since the part of cause of action arose at New Delhi, whereas the cause of
action does not arise to entertain the Writ Petition before this Court. Further,
when the second respondent already registered the FIR and after registration of
the FIR, the High Court which has got territorial jurisdiction has only
jurisdiction to deal with the said FIR. Therefore, the petitioners cannot use the
doctrine of forum convenience which is deprecated by the Hon'ble Supreme
Court of India as well as by this Court.
28. In fact, the petitioners filed second anticipatory bail petitions
before the learned Assistant Session Judge, Patiala House Court, New Delhi.
Though the Court below dismissed the earlier anticipatory bail petitions,
directed the second respondent to issue seven days prior notice and do the
investigation. The said orders have been challenged by the defacto
complainant viz., fourth respondent herein in Crl.M.C.Nos.2848 & 2842 of
2022 before the Hon'ble High Court of Delhi and they are pending.
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29. The Hon'ble Division Bench of High Court of Gujarat at
Ahmedabad dealt with the same issue in the case of Bhavendra Hasmukhlal
Patadia Vs. Union of India in R/Special Civil Application No.4820 of 2022
and by the judgment dated 27.04.2022 considered the provision under Article
226 of the Constitution of India as it stood prior to amendment which read as
follows:-
"Article 226. Power of High Courts to issue certain writs. -
(1) Notwithstanding anything in Article 32, every High
Court shall have power, throughout the territories in
relation to which it exercises jurisdiction, to issue to any
person or authority, including in appropriate cases any
Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, or any
of them or the enforcement of any of the rights conferred by
Part III and for any other purpose.
(2) The power conferred on a High Court by Clause
(1) shall not be in derogation of the power conferred on the
Supreme Court by Clause (2) of Article 32".
While interpreting the aforesaid provisions, the Constitution Bench of the
Hon'ble Supreme Court of India, in the case of Election Commission, India
Vs. Saks Venkata Rao, reported in AIR 1953 SC 210, held that the writ Court
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would not run beyond the territories subject to its jurisdiction. The rule that
cause of action attracts jurisdiction in suits is based on statutory enactment and
cannot apply to writs issued under Article 226 of the Constitution, which
makes no reference to any cause of action or where it arises but insist on the
presence of the person or authority within the territories in relation to which
the High Court exercises jurisdiction.
30. As a result, Clause 1(A) was inserted in Article 226 of the
Constitution in 15th Amendment Act, 1963 and subsequently renumbered as
Clause (2) of the Constitution in 42nd Amendment Act, 1976. As per the
amended provisions, the High Court can issue writ, when the person or the
authority against whom the writ is issued is located outside its territorial
jurisdiction, if the cause of action wholly or partially arises within the
territorial jurisdiction. The expression “cause of action” has not be defined
either in the Code of Civil Procedure or the Constitution.
31. Article 226(2) of the Constitution of India was again considered
by the Hon'ble Supreme Court of India in the case of Oil and Natural Gas
Commission Vs. Utpal Kumar Basu and ors reported in (1994) 4 SCC 711,
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and held that whether the High Court has territorial jurisdiction to entertain a
Writ Petition must be answered on the basis of the averments made in the
petition, the truth or otherwise whereof being immaterial. To put it differently,
the question of territorial jurisdiction must be decided on the facts pleaded in
the petition. In the case of Kusum Ingots and Alloys Ltd., Vs. Union of India
and anr reported in (2001) 6 SCC 254, the Hon'ble Supreme Court of India
held that the meaning of the word “cause of action” with reference to Section
20(c) and Section 141 of the Code of Civil Procedure and observed as
follows:-
"9. Although in view of Section 141 of the Code of
Civil Procedure the provisions thereof would not apply to
writ proceedings, the phraseology used in Section 20(c) of
the Code of Civil Procedure and Clause (2) of Article 226,
being in pari materia, the decisions of this Court rendered
on interpretation of Section 20(c) CPC shall apply to the
writ proceedings also. Before proceeding to discuss the
matter further it may be pointed out that the entire bundle of
facts pleaded need not constitute a cause of action as what
is necessary to be proved before the petitioner can obtain a
decree is the material facts. The expression material facts is
also known as integral facts.
10. Keeping in view the expressions used in Clause
(2) of Article 226 of the Constitution of India, indisputably
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even if a small fraction of cause of action accrues within the
jurisdiction of the Court, the Court will have jurisdiction in
the matter."
Their Lordships further observed as under:-
'29. In view of Clause (2) of Article 226 of the
Constitution of India, now if a part of cause of action arises
outside the jurisdiction of the High Court, it would have
jurisdiction to issue a writ. The decision in Khajoor Singh
has, thus, no application.
30. We must, however, remind ourselves that even if a
small part of cause of action arises within the territorial
jurisdiction of the High Court, the same by itself may not be
considered to be a determinative factor compelling the High
Court to decide the matter on merit. In appropriate cases,
the Court may refuse to exercise its discretionary
jurisdiction by invoking the doctrine of forum conveniens."
32. The Hon'ble Supreme Court of India also held in the case of Om
Prakash Srivastava Vs. Union of India & anr reported in (2006) 6 SCC 207
as follows :-
“7. The question whether or not cause of action wholly or
in part for filing a writ petition has arisen within the territorial
limits of any High Court has to be decided in the light of the
nature and character of the proceedings under Article 226 of the
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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."
Thus, it is clear that a bundle of facts which taken with the law applicable to
them gives the plaintiff a right to relief against the defendant. It must include
some act done by the defendant since in the absence of such an act, no cause of
action would possibly accrue or would arise. It is also clear from the above
judgments that in order to exercise jurisdiction to entertain a Writ Petition, the
Court must be satisfied from the entire facts pleaded in support of the cause of
action that those fact do constitute a case so as to empower the Court to decide
the dispute which had, at least in part, arisen within its jurisdiction.
33. After considering all the above judgements, the Hon'ble Division
Bench of the High Court of Gujarat at Ahmedabad held in the case of
Bhavendra Hasmukhlal Patadia Vs. Union of India in Special Civil
Application No.4820 of 2022 dated 27.04.2022 that the principle of forum
convenience also makes it obligatory on the part of the Court to see the
convenience of all the parties before it. Be it the existence of a more
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appropriate forum, expenses, law relating to the lis, convenience of the
witnesses, verification and examinations of the facts or adjudications of the
controversy and other similar and ancillary aspects. Even in a scenario where a
part cause of action has arisen within one High Court's territorial jurisdiction,
that High Court can still refuse to exercise jurisdiction under Article 226 of the
Constitution of India, on account of other considerations as defined under the
concept of forum convenience.
34. In the case on hand, the cause for lodging the complaint at a
particular place must not be confused with the cause of action for filing the
Writ Petition to quash the said FIR. Even if a fraction of the cause for filing the
complaint has arisen at New Delhi, an FIR could be lodged at New Delhi.
Even assuming that the said registration of FIR in New Delhi is malafide, the
cause of action for filing this Writ Petition to quash the said FIR could arise
only before the Hon'ble High Court of New Delhi and not at all places where
part of cause for lodging the complaint may have arisen and where the FIR
could have been registered and investigated and where the ensuing criminal
case could have been tried. Thus cause of action for lodging the criminal
complaint is different from the cause of action for quashing the FIR.
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35. The provisions of Sections 177 & 178 of Cr.P.C., therefore, could
not and ought not to be applied for determining the territorial jurisdiction of
the High Court, which has to only consider the provisions of Article 226 of the
Constitution of India. Therefore, the present Writ Petitions are unnecessarily
and with ulterior motives dragged to face the authorities in New Delhi and that
it is a calculated move to choose this Court and it cannot be accepted so as to
usurp territorial jurisdiction and undermine the authority and jurisdiction of
another High Court viz., the Hon'ble High Court of New Delhi.
36. The Hon'ble Division Bench also observed that if several accused
persons approaching several High Court in a case part of cause of action taken
place more than one State, if all the High Courts within whose territorial
jurisdiction any of the acts constituting the offences have taken place and all
the High Courts assume extraordinary writ jurisdiction for intervention in a
criminal case registered in any one of the States, a distinct possibility of
several High Court taking inconsistent views and issuing conflicting directions
may arise. Therefore, the judicial discipline requires and expediency demands
that only the High Court within whose territorial jurisdiction the complaint is
filed or criminal case is pending entertains the petitions arising therefrom.
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Thus, because of the petitioners reside at Chennai, they came to be filed these
Writ Petitions before this Court by itself will not confer the jurisdiction of this
Court, more particularly when the petitioners are being accused in the FIR
registered by the second respondent at New Delhi.
37. In view of the above discussions, both the Writ Petitions are not
maintainable before this Court, since this Court has no territorial jurisdiction to
entertain these Writ Petitions. Accordingly, both the Writ Petitions are
dismissed. However, the petitioners are at liberty to approach the Hon'ble High
Court of New Delhi to challenge the FIR impugned in these Writ Petitions,
which is having territorial jurisdiction.
38. Accordingly, both the Writ Petitions stand dismissed.
Consequently, connected Miscellaneous Petitions are also closed. There shall
be no order as to costs.
11.08.2022
Internet : Yes / No
Index : Yes / No
Speaking / Non Speaking order
rts
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W.P.Nos.2688 & 25129 of 2021
G.K.ILANTHIRAIYAN, J.
rts
To
1. The Assistant Commissioner of Police,
Chennai - CCB,
CCB-1, Chennai.
(CCB Cr.No.253/2019)
2. The Inspector of Police,
Delhi - EOW,
(FIR No.218 of 2020)
3. The Public Prosecutor
Madras High Court,
Chennai.
order in
W.P.Nos.2688 & 25129 of 2021
and W.M.P.Nos.3017, 3018, 3019,
26488 & 26490 of 2021
11.08.2022
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