Telangana High Court
Shri Kakulamarri Kalyan ... vs Central Bureau Of Investigation ... on 23 August, 2022
Bench: G.Radha Rani
* THE HON'BLE Dr. JUSTICE G. RADHA RANI
+ WRIT PETITION No.11440 of 2021
% 23.08.2022
# Kakulamarri Kalyan Srinivasa Rao,
R/o.No.8-2-416, F.No.F.B,
Road No.4, Banjara Hills, Hyderabad-34.
.... Petitioner
Vs.
$ The Deputy Director, Directorate of Enforcement,
Government of India, 3rd Floor, C Block, Murugesa
Naicker Complex, No.84 Greams Road, Thousand Lights,
Chennai - 600006 and another.
..... Respondents
!Counsel for the Petitioner : Ms. Mogili Anageni
Counsel for the Respondents : Ms. Anjali Agarwal
Special Public Prosecutor of CBI
Sri Ch. Siva Reddy
<Gist :
>Head Note:
? Cases referred:
1. (2000) 7 SCC 640
2. (2009) 11 SCC 286
3. (1992) Supp 1 SCC 335
4. (2019) 9 SCC 148
5. (2015) 8 SCC 293
6. Crl.Appeal No. 125 of 2020
7. (2009) 3 SCC 78
8. 2006 (3) SCC 658
9. 2009 (11) SCC 286
10. (2014) 9 SCC 129
11. 2015 SSC Online Mad 51
12. WP No. 9128 of 2019
13. 2013 Law Suit (Ker) 1479
14. (1994) 4 SCC 711
15. (2007) 11 SCC 335
16. MANU/TN/7063/2020
17. 2017 (4) KLJ 390
Dr.GRR,J
2 WP No.11440 of 2021
THE HON'BLE Dr. JUSTICE G. RADHA RANI
WRIT PETITION No.11440 OF 2021
ORDER:
This writ petition is filed to issue a Writ of Certiorari, order or
direction, calling for the records in C.C. No. 3449 of 2018 pending on the
file of Additional Chief Metropolitan Magistrate, Egmore, Chennai and to
quash the charge sheet in RC No.4 of 2016 including the order dated
8-5-2018 passed by the ACMM, Egmore, Chennai in CC No. 3449 of
2018.
2. Heard Sri S. Nagamuthu, learned Senior Counsel representing
Ms. Anaveni Mogili, counsel on record for the petitioner and the Sri Surya
Karan Reddy, learned Additional Solicitor General of India for respondent
No. 1, CBI and the learned counsel for Central Bank of India representing
the respondent No.2.
3. The facts of the case leading to filing of the present case are:
In the year 2010, M/s. Best & Crompton Engineering Projects Ltd.
(BCEPL) (A2) had availed credit facilities from a consortium of Banks led
by the Central Bank of India. The Central Bank of India sanctioned
Rs.120.00 Crores for fund based and non-fund based working capital limit
to BCEPL on 21.10.2010 secured by immovable property as well as
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corporate guarantee. The Andhra Bank had sanctioned credit limit to a
tune of Rs.60 Crores and the Corporation Bank sanctioned credit limit to a
tune of Rs.120 Crores to BCEPL meeting a total requirement of Rs.300
Crores. A2 failed to make the required payments to the consortium of
banks. The Asst. Manager, Central Bank of India, Corporate Finance
Branch filed a complaint with the investigating agency. The Central Bureau
of Investigation (CBI), Bangalore office, Respondent No. 1 registered a
case in RC No.04/E/2016-CBI/BS&C/BLR on 01.02.2016 against A2
company under Section 120-B read with Sections 420, 468 and 471 IPC.
The petitioner, who was the Managing Director of BCEPL, was arrayed as
A1. The case of the prosecution was that all the accused were a party to a
criminal conspiracy hatched among themselves in Hyderabad and Chennai
and other places during the years 2010-13 in defrauding and cheating the
consortium of banks led by the Central Bank of India. In furtherance of the
said criminal conspiracy, the accused persons induced Central Bank of
India, Corporate Finance Branch, Chennai, by submitting fraudulent letter
of credit documents without any physical movement of goods and
unlawfully availed credit facilities for which they were not eligible and
diverted the loan amount for the purposes other than which it was
sanctioned. As on 19-11-2013, they had caused a wrongful loss to a tune of
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Rs.133.31 Crores and corresponding unlawful gain to themselves. A charge
sheet was filed under Section 120-B read with 420, 465 & 471 IPC
arraying the petitioner as accused No. 1.
3.1. The learned counsel for the petitioner contended that at the time
of sanction of loan, the petitioner was not on the rolls of A2, therefore, the
question of the petitioner being a party to the conspiracy would not arise.
The petitioner occupied the seat of the Managing Director of A2 company
in February 2012, whereas the loan was sanctioned in 2010. Therefore,
none of the charging provisions in the charge sheet or in the complaint
would apply to the petitioner. The allegations in the FIR and charge sheet
were civil in nature and the same would not attract the ingredients of a
criminal offence. The case of the bank with respect to the FIR dated
01.02.2016 would only relate to a commercial dispute for recovery of debt
and grant of credit facility. The case was civil in nature and no criminal
offence was made out against the petitioner. The grant of credit facility
was purely for business purposes and the recovery of the same could only
be related to dispute of civil nature and not otherwise and non-payment of
credit facility ipso facto was not an offence under IPC. The respondents
malafidely given colour of a criminal offence to a civil dispute. The
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complaint given by the bank was nothing but abuse of process of law and
the same was driven by ulterior motives.
3.2 It was not the case of the prosecution that sanctioning of loan
was fraudulent or A2 Company had induced the bank for sanctioning credit
facilities to A2. The prosecution had not made any official of bank as an
accused nor found fault in the manner in which credit facilities were
sanctioned to A2 Company. When the bank sanctioned credit facilities as
per RBI norms, the prosecution could not say that there was any dishonest
intention at the very inception warranting a charge under Section 420 IPC.
The charge under Section 420 IPC against the petitioner was not
maintainable.
3.3 On the basis of the proposal given by A2 company to regularise
the account, the lead banker namely, the Central Bank of India asked A2
company to deposit a sum of Rs.5.00 Crores to show the bonafides and in
furtherance thereof A2 company complied with the same. The Bank was
holding a sum of Rs.5.00 Crores in a No Lien account till 2017 and the
minute the prosecution filed a final report, the bank adjusted the 5.00
Crores towards the loan account. The Bank had not dealt with the matter in
a fair manner and was resorting to frivolous prosecution. The Bank had
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prime properties available as securities in Chennai, Hyderabad and had
already initiated SARFAESI proceedings. The bank filed O.A. No.198 of
2014 before DRT-1, Chennai and obtained a recovery certificate. The
proceedings were pending. The bankers were converting a commercial
dispute into a criminal case.
3.4 The case of the prosecution was heavily based on the forensic
report prepared in March, 2014 by M/s. Jai Singh & Associates, Mumbai
which was bereft of any details and was of full of lacunae. The A2
company had got its transaction audit done. There was no evidence of any
siphoning of funds or misappropriation of funds. There could be no case
against A2 company as the transaction audit would clearly show that there
was no money lying in the hands of A2 company.
3.5 The prosecution complaint was based on a false premise. The
role of the petitioner in the charge sheet was only that he was the Managing
Director of A2 at the relevant point of time. The company was never given
an opportunity to explain the accounts. A2 company was a 100 year old
company and contributed immensely to the economy of the country. No
FIR was ever registered against the company except the present one. It was
only because of the tussle between the management of the bank and the
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petitioner, which led to filing of the complaint without following proper
procedure and consequently the FIR and charge sheet. The complaint bank
did not follow the due procedure of law before filing the complaint. Neither
the Board of Directors of A2 company nor any other consortium bank was
informed by the complainant bank. The guarantors were also not informed.
The complainant bank ought to have informed the RBI before filing the
complaint. It also ignored the past audit report before lodging the
complaint. The additional credit facility sanctioned by bank of Rs.500.00
Crores was not availed by A2.
3.6 No charge of forgery was maintainable against the petitioner
since it was not the case of the prosecution that the petitioner dishonestly or
fraudulently signed, sealed or executed a document or a part of the
document with the intention of causing it to be believed that such document
was made, sealed, signed, executed by the authority of a person which he
knew it was not made. The transactions which A2 company entered were
all genuine transactions. In the absence of any cogent material, it was not
possible to conclude that Section 465 IPC would be applicable to the case
in hand. Similarly, Section 471 IPC would also have no application as
there was no material to show that the petitioner had used a forged or
fabricated document.
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3.7. He further contended that there were allegations in the
complaint that criminal conspiracy to commit the offence was hatched in
Hyderabad and Chennai. The Head Quarter branch of the Andhra Bank
which forwarded the credit facility to BCEPL was in Hyderabad. The
investigation of some of the transactions took place in Hyderabad. Further,
in connection with the investigation in FIR No.4(E) of 2017 lodged by
Respondent No.1, W.P. No.9590 of 2019 was filed before this Court
challenging issuance of summons and vide order dated 13.04.2019, this
Court protected the petitioner therein from arrest. In terms of Article
226(2) of the Constitution of India, the territorial jurisdiction of the High
Court would be determined if cause of action, wholly or partly, arose
within its territorial jurisdiction. The Hon'ble Apex Court in
Navinchandra N. Majithia v. State of Maharashtra1 held that mere fact
that FIR was registered in a particular state was not the sole criteria to
decide that no cause of action had arisen even partly within the territorial
limits of jurisdiction of another State. The aforesaid view was
subsequently reiterated by the Hon'ble Apex Court in Rajendra
Ramachandra Kavalekar v. State of Maharashtra2. In view of the law
laid down by the Hon'ble Apex Court, this Court had jurisdiction to
(2000) 7 SCC 640
(2009) 11 SCC 286
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entertain the writ petition and prayed to allow the same by quashing the
proceedings in C.C. No.3449 of 2018 pending before Additional Chief
Metropolitan Magistrate, Egmore, Chennai and to quash the charge sheet in
RC No.4 of 2016 including the order dated 8-5-2018 passed by the
Additional Chief Metropolitan Magistrate, Egmore, Chennai.
3.8 The learned counsel for the petitioner relied upon the judgment
of Hon'ble Apex Court in Navinchandra N Majithia's case (1 supra) on
the aspect that mere fact that FIR was registered in a particular State was
not the sole criteria to decide that no cause of action had arisen evenly
partly within the territorial limits of jurisdiction of another State. The courts
must ascertain whether any part of the cause of action has arisen within the
territorial limits of its jurisdiction. He relied upon the judgment of Hon'ble
Apex Court in State of Haryana Vs. Bhajan Lal3 wherein the
circumstances/categories of cases where power to quash under Article 226
or Section 482 of Cr.P.C. could be exercised by the courts was stated. He
relied upon the judgment of Hon'ble Apex Court in Sathishchandra
Ratanlal Shah v. State of Gujarat & Anr.4, wherein it was held that mere
inability of the appellant to return the loan amount could not give rise to
criminal prosecution for cheating under Section 420 IPC unless fraudulent
(1992) Supp 1 SCC 335
(2019) 9 SCC 148
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or dishonest intention was shown right from the beginning of the
transaction. He also relied upon the judgments of Hon'ble Apex Court in
the case of Vesa Holdings Pvt. Ltd. & Anr. v. State of Kerala & Ors.5,
Sushil Sethi & Anr. v. State of Arunachal Pradesh & Anr.6 and V.Y
Jose & Anr. v. State of Gujarat & Anr.7 on the aspect that when there
were no specific allegations against the accused persons in the FIR as well
as in the charge sheet that fraudulent and dishonest intention was from the
very beginning of the transactions investigated into, the offence of cheating
under Section 420 IPC was not made out.
4. The learned Additional Solicitor General of India, on the other
hand, raised a preliminary objection of maintainability of the Writ of
Certiorari as it was filed for quashing a judicial proceeding for taking
cognizance by a competent criminal court which fell outside the territorial
jurisdiction and superintendence of this court. He contended that the
present case was transformed into a judicial proceedings and a competent
criminal court had taken cognizance of the matter. The said court was
under the territorial jurisdiction of the High Court of Madras and the
superintendence and revisional jurisdiction over the said court was
(2015) 8 SCC 293
Crl.Appeal No. 125 of 2020
(2009) 3 SCC 78
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exercised by the High Court of Madras under Article 227 of the
Constitution of India. This court could not judicially review the action of
the competent Magistrate in taking cognizance under Section 190 Cr.P.C.
and issue in process under Section 204 Cr.P.C. The entire cause of action
arose in Chennai, outside the territorial jurisdiction of this court. The relief
granted by this court in W.P. No.9590 of 2019 to the petitioners therein
pertained to the summons issued by the CBI during investigation, as such
there was no relevance in the context of the present criminal petition. All
the records were with the court under the jurisdiction of High Court of
Madras. As such High Court of Madras was proper and appropriate forum
and relied upon several judgements of the Hon'ble Apex Court in:
1. Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd. and
Ors.8
2. Shri Rajendra Ramchandra Kavlekar v. State of
Maharashtra9
3. Dashrath Rupsingh Rathod v. State of Maharashtra10
and of the High Court of Madras in
4. S. Ilanahai v. State of Mumbai & Ors11
5. M Asha Vs. The State of Rep. by SHO & Ors.12
2006 (3) SCC 658
2009 (11) SCC 286
(2014) 9 SCC 129
2015 SSC Online Mad 51
WP No. 9128 of 2019
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and of the High Court of Kerala in
6. Anil Kumar V C v. Magma Fincorp Ltd and Ors.13
4.1 He further contended that the petitioner had an effective and
efficacious alternative statutory remedy under Section 482 Cr.P.C. to
approach the High Court of Madras to quash the criminal proceedings in
C.C. No.3449 of 2018 and this writ petition was liable to be dismissed on
the said count. He also contended that the petitioner could invoke writ
jurisdiction of the High Court of Madras under Article 226 and revisional
jurisdiction under Article 227 of the Constitution of India as well. The
petitioner resorted to forum shopping by filing this petition before this
court as already A2 had filed a criminal petition under Section 482 Cr.P.C.
before the High Court of Madras vide Cr.P.No.12595 of 2020 and Cr.M.P.
Nos.4871 & 4952 of 2020 for quashing the proceedings in C.C. No.3449 of
2018 on the file of ACMM, Egmore, Chennai which was dismissed as
withdrawn on 11-9-2020. Vide order dated 8-10-2020, the High Court of
Madras dismissed the Criminal Petition No.15975 of 2020 and Cr.M.P.
No.6113 of 2020 filed by A2 for quashing the proceedings in C.C. No.3449
of 2018 as further investigation was pending in the case. The petitioner
approached the subordinate courts of Chennai and the High Court of
2013 Law Suit (Ker) 1479
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Madras during the investigation and after filing the charge sheet. All other
accused persons are companies in C.C. No. 3449 of 2018 and had
approached the courts in Chennai. The petitioner for the reasons best
known to him resorted to forum shopping, which was against the principle
of legal propriety and to subvert the process of law. The court had
discretionary power not to entertain the matter on the ground that there
existed more appropriate court of competent jurisdiction which would be in
a better position to decide the matter and prayed to dismiss the petition.
4.2 He also further contended about the role of the petitioner in the
case on merits and the documents filed along with the charge sheet and
several correspondences made by the petitioner with banks showing his
active involvement in the business and his role in applying for fresh loans
for Rs.900.00 Crores from existing loan of Rs.300.00 Crores. He contended
that the petitioner was actively involved in company business and made
efforts to open fresh letters of credit in March 2013 in the names of Ganga
Exim Pvt. Ltd. and Global Forging Ltd and that the petitioner had
submitted management representation letter to statutory auditor of the
company stating that all the transactions related to the company were
genuine during the financial year ended on 31-3-2013. The investigation
established that all the transactions of A2 company were fake and LC's
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were opened in the name of fictitious suppliers. He submitted that the
petitioner was authorised signatory in all consortium bank accounts since
29-4-2013. The petitioner addressed to the AGM, Central Bank of India,
Chennai regarding regularisation of account stating that he dealt with
debtors. Majority debtor companies were trading/shell companies. No
amount was recovered from them. No legal action was initiated against
them. The petitioner suppressed the material fact that two other FIRs were
registered against him and were under active investigation on the complaint
lodged by Andhra Bank (FIR No. RC. 04/E/2017) and Corporation Bank
(FIR No. RC.14/E/2018).
4.3 The loan default was not due to business difficulty but part of a
well designed and planned criminal conspiracy to defraud the public sector
banks, through the crony/paper companies shown as suppliers by diverting
the funds from the accused companies accounts to the personal account of
the accused petitioner. There existed a clear money trail which linked the
suppliers arrayed as A8 to A11 to the petitioner/A1. The forensic audit
demonstrated the extent of fraud. False net worth certificates were
furnished by the petitioner to the banks for sanction of credit limit. There
existed a criminal angle to the entire episode, wherein the petitioner/A1
played a key role and was a prime conspirator.
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4.4 The charge sheet and the annexed material documents and the
list of witnesses would clearly demonstrate the role of the petitioner prima
facie in the entire episode. The essential ingredients of Section 120B, 420,
465, 471 IPC were well established. There existed sufficient and cogent
material for prosecuting the petitioner and the same could be better
appreciated in a criminal trial and prayed to dismiss the petition on the
ground of lack of jurisdiction and on the ground that the petition was
devoid of merit.
5. In view of the above contentions the following questions arise for
consideration:
1. Whether this court is having territorial jurisdiction to entertain the
writ petition under Article 226 (2) of the Constitution of India?
2. Whether taking cognizance of the offences under IPC by the
Additional Chief Metropolitan Magistrate, Egmore, Chennai in C.C.
No.3449 of 2018 against the petitioner is in accordance with law?
6. Question No 1:-
To consider this question it is necessary to examine the legal position
and the history behind enactment of Article 226(2) of the Constitution of
India.
"226. Power of High Courts to issue certain writs:
(1) Notwithstanding anything in Article 32 every High Court
shall have powers, throughout the territories in relation to which
it exercise jurisdiction, to issue to any person or authority,
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including in appropriate cases, any Government, within those
territories directions, orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibitions, 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."
6.1 The Hon'ble Apex Court in ONGC v. Utpal Kumar Basu14
observed that:
"5.Clause (1) of Article 226 begins with a non obstante clause
notwithstanding anything in Article 32 - and provides that 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, for the
enforcement of any of the rights conferred by Part III or for any
other purpose.
Under clause (2) of Article 226 the High Court may exercise its
power conferred by clause (1) if the cause of action, wholly or in
part, had arisen within the territory over which it exercises
Jurisdiction, notwithstanding that the seat of such Government
or authority or the residence of such person is not within those
territories.
On a plain reading of the aforesaid two clauses of Article 226 of
the Constitution it becomes clear that a High Court can exercise
the power to issue directions, orders or writs for the enforcement
of any of the fundamental rights conferred by Part III of the
Constitution or for any other purpose if the cause of action,
wholly or impart, had arisen within the territories in relation to
which it exercises jurisdiction, notwithstanding that the seat of
the Government or authority or the residence of the person
against whom the direction, order or writ 'is issued is not within
the said territories.
(1994) 4 SCC 711
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6. It is well settled that the expression "cause of action" means
that bundle of facts which the petitioner must prove, if traversed,
to entitle him to a judgment in his favour by the Court. In Chand
Kour v. Partab Singh' Lord Watson said:
"... the cause of action has no relation whatever to the
defence which may be set up by the defendant, nor
does it depend upon the character of the relief prayed
for by the plaintiff. It refers entirely to the ground set
forth in the plaint as the cause of action, or, in other
words, to the media upon which the plaintiff asks the
Court to arrive at a conclusion in his favour."
Therefore, in determining the objection of lack of territorial
jurisdiction the court must take all the facts pleaded in support
of the cause of action into consideration albeit without
embarking upon an enquiry as to the correctness or otherwise of
the said facts. In other words the question whether a 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.
The Supreme Court in Saka Venkata Subba Rao case while
interpreting Article 226 as it then stood observed as under:
"The rule that cause of action attracts Jurisdiction in suits is
based on statutory enactment and cannot apply to writs issuable
under Article 226 which makes no reference to any cause of
action or where it arises but insists on the presence of the person
or authority 'within the territories' in relation to which the High
Court exercises jurisdiction."
Thus, this Court ruled that in the absence of a specific provision
in Article 226 on the lines of the Code of Civil Procedure, the
High Court cannot exercise jurisdiction on the plea that the
whole or part of the cause of action had arisen within its
jurisdiction. This view was followed in subsequent cases. The
consequence was that only the High Court of Punjab could
exercise jurisdiction under Article 226 of the Constitution
against the Union of India and other bodies located in Delhi. To
remedy this situation, clause (1-A) was inserted by the
15th Amendment Act, 1963, to confer on the High Courts
jurisdiction to entertain a petition under Article 226 against the
Union of India or any other body or authority located in Delhi if
the cause of action has arisen, wholly or in part, within its
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Jurisdiction. Clause (1-A) was later renumbered as clause (2)
of Article 226. Therefore, the learned counsel for NICCO is
right that this amendment was introduced to supersede the view
taken by this Court in the aforesaid case. But as stated earlier, on
a plain reading of clause (2) of Article 226, it is clear that the
power conferred by clause (1) can be exercised by the High
Court provided the cause of action, wholly or in part, had arisen
within its territorial limits.
6.2 In Alchemist Vs. State Bank of Sikkim15, the Hon'ble Apex
Court held that,
12. Before entering into the controversy in the present appeal, let
the legal position be examined: Article 226 of the Constitution
as it originally enacted had two-fold limitations on the
jurisdiction of High Courts with regard to their territorial
jurisdiction. Firstly, the power could be exercised by the High
Court "throughout the territories in relation to which it exercises
jurisdiction", i.e. the writs issued by the court cannot run beyond
the territories subject to its jurisdiction. Secondly, the person or
authority to whom the High Court is empowered to issue such
writs must be "within those territories", which clearly implied
that they must be amenable to its jurisdiction either by residence
or location within those territories.
13. In Election Commission, India v. Saka Venkata Rao, 1953
SCR 1144 : AIR 1953 SC 210, the petitioner applied to the High
Court of Madras under Article 226 of the Constitution for a writ
of prohibition restraining the Election Commission, (a statutory
authority constituted by the President) having its office
permanently located at New Delhi, from inquiring into the
alleged disqualification of the petitioner from membership of the
Madras Legislative Assembly. The High Court of Madras issued
a writ. The aggrieved petitioner approached this Court. Allowing
the appeal and reversing the decision of the High Court, this
Court held that the High Court of Madras had no territorial
jurisdiction to entertain the petition.
Speaking for the Court, Patanjali Sastri, C.J. made the following
observations:
"The makers of the Constitution, having decided to
provide for certain basic safeguards for the people in
(2007) 11 SCC 335
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the new set up, which they called fundamental rights,
evidently thought it necessary to provide also a quick
and inexpensive remedy for the enforcement of such
rights and, finding that the prerogative writs which
the Courts in England had developed and used
whenever urgent necessity demanded immediate and
decisive interposition, were peculiarly suited for the
purpose, they conferred, in the States' sphere, new
and wide powers on the High Courts of issuing
directions, orders, or writs primarily for the
enforcement of fundamental rights, the power to issue
such directions, etc., "for any other purpose" being
also included with a view apparently to place all the
High Courts in this country in somewhat the same
position as the Court of King's Bench in England. But
wide as were the powers thus conferred, a two-fold
limitation was placed upon their exercise. In the first
place, the power is to be exercised "throughout the
territories in relation to which it exercises
jurisdiction", that is to say, the writs issued by the
court cannot run beyond the territories subject to its
jurisdiction. Secondly, the person or authority to
whom the High Court is empowered to issue such
writs must be "within those territories", which clearly
implies that they must be amenable to its jurisdiction
either by residence or location within those
territories".
(emphasis supplied) As to the cause of action, the Court stated:
"The rule that cause of action attracts jurisdiction in suits is
based on statutory enactment and cannot apply to writs issuable
under Article 226 which makes no reference to any cause of
action or where it arises but insists on the presence of the person
or authority 'within the territories' in relation to which the High
Court exercises jurisdiction".
Again, a question arose in Khajoor Singh v. Union of India,
(1961) 2 SCR 528 : AIR 1961 SC 532. A Bench of seven Judges
was called upon to consider the correctness or otherwise of Saka
Venkata Rao. The majority (Sinha, C.J., Kapoor,
Gajendragadkar, Wanchoo, Das Gupta and Shah, JJ.) reaffirmed
and approved the view taken by this Court earlier in Saka
Venkata Rao and held that the High Court of Jammu & Kashmir
was right in not entertaining the writ petition filed by the
petitioner on the ground that it had no territorial jurisdiction.
Speaking for the majority, Sinha, C.J., stated: "It seems to us
therefore that it is not permissible to read in Article 226 the
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residence or location of the person affected by the order passed
in order to determine the jurisdiction of the High Court. That
jurisdiction depends on the person or authority passing the order
being within those territories and the residence or location of the
person affected can have no relevance on the question of the
High Court's jurisdiction".
The effect of the above decisions was that no High Court other
than the High Court of Punjab (before the establishment of the
High Court of Delhi) had jurisdiction to issue any direction,
order or writ to the Union of India, because the seat of the
Government of India was located in New Delhi. Cause of action
was a concept totally irrelevant and alien for conferring
jurisdiction on High Courts under Article 226 of the
Constitution. An attempt to import such concept was repelled by
this Court. In the circumstances, Article 226 was amended by
the Constitution (Fifteenth Amendment) Act, 1963 and after
Clause 1, new Clause (1-A) was inserted which read as under:
"(1-A) 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".
It may be stated that by the Constitution (Forty-
second Amendment) Act, 1976, Clause (1-A) was renumbered
as Clause (2). The underlying object of amendment was
expressed in the following words: "Under the existing Article
226 of the Constitution, the only High Court which has
jurisdiction with respect to the Central Government is the
Punjab High Court. This involves considerable hardship to
litigants from distant places. It is, therefore, proposed to
amend Article 226. So that when any relief is sought against any
Government, authority or person for any action taken, the High
Court within whose jurisdiction the cause of action arises may
also have jurisdiction to issue appropriate directions, orders or
writs".
(emphasis supplied) The effect of the amendment was that the
accrual of cause of action was made an additional ground to
confer jurisdiction on a High Court under Article 226 of the
Constitution.
Dr.GRR,J
As Joint Committee observed:
"This clause would enable the High Court within whose
jurisdiction the cause of action arises to issue directions,
orders or writs to any Government, authority or person,
notwithstanding that the seat of such Government or
authority or the residence of such person is outside the
territorial jurisdiction of the High Court. The Committee
feel that the High Court within whose jurisdiction the
cause of action arises in part only should also be vested
with such jurisdiction".
18. The legislative history of the constitutional provisions,
therefore, make it clear that after 1963, cause of action is
relevant and germane and a writ petition can be instituted in a
High Court within the territorial jurisdiction of which cause of
action in whole or in part arises.
It may be stated that the expression 'cause of action' has neither
been defined in the Constitution nor in the Code of Civil
Procedure, 1908. It may, however, be described as a bundle of
essential facts necessary for the plaintiff to prove before he can
succeed. Failure to prove such facts would give the defendant a
right to judgment in his favour. Cause of action thus gives
occasion for and forms the foundation of the suit. The classic
definition of the expression 'cause of action' is found in Cooke v.
Gill, (1873) 8 CP 107 : 42 LJ PC 98, wherein Lord Brett
observed:
"'Cause of action' means every fact which it would be
necessary for the plaintiff to prove, if traversed, in order
to support his right to the judgment of the court".
For every action, there has to be a cause of action. If there is no
cause of action, the plaint or petition has to be dismissed.
Mr. Soli J. Sorabjee, Senior Advocate appearing for the
Appellant-Company placed strong reliance on A.B.C. Laminart
Pvt. Ltd. & Anr. v. A.P. Agencies, Salem, (1989) 2 SCC 163 :
AIR 1989 SC 1239 : JT 1989 (2) SC 38 and submitted that the
High Court had committed an error of law and of jurisdiction in
holding that no part of cause of action could be said to have
arisen within the territorial jurisdiction of the High Court of
Punjab & Haryana. He particularly referred to the following
observations: "A cause of action means every fact, which, if
traversed, it would be necessary for the plaintiff to prove in
order to support his right to a judgment of the Court. In other
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words, it is 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 can possibly accrue. It
is not limited to the actual infringement of the right sued on but
includes all the material facts on which it is founded. It does not
comprise evidence necessary to prove such facts, but every fact
necessary for the plaintiff to prove to enable him to obtain a
decree. Everything which if not proved would give the
defendant a right to immediate judgment must be part of the
cause of action. But it has no relation whatever to the defence
which may be set up by the defendant nor does it depend upon
the character of the relief prayed for by the plaintiff".
In our opinion, the High Court was wholly justified in upholding
the preliminary objection raised by the respondents and in
dismissing the petition on the ground of want of territorial
jurisdiction. The learned counsel for the respondents referred to
several decisions of this Court and submitted that whether a
particular fact constitutes a cause of action or not must be
decided on the basis of the facts and circumstances of each case.
In our judgment, the test is whether a particular fact(s) is (are) of
substance and can be said to be material, integral or essential
part of the lis between the parties. If it is, it forms a part of cause
of action. If it is not, it does not form a part of cause of action. It
is also well settled that in determining the question, the
substance of the matter and not the form thereof has to be
considered.
26. In Union of India & Ors. v. Oswal Woollen Mills Ltd. &
Ors., (1984) 3 SCR 342 : AIR 1984 SC 1264, the registered
office of the Company was situated at Ludhiana, but a petition
was field in the High Court of Calcutta on the ground that the
Company had its branch office there. The order was challenged
by the Union of India. And this Court held that since the
registered office of the Company was at Ludhiana and the
principal respondents against whom primary relief was sought
were at New Delhi, one would have expected the writ petitioner
to approach either the High Court of Punjab & Haryana or the
High Court of Delhi. The forum chosen by the writ petitioners
could not be said to be in accordance with law and the High
Court of Calcutta could not have entertained the writ petition.
In Kusum Ingots & Alloys Ltd. v. Union of India (UOI) & Anr.,
(2004) 6 SCC 254 : JT 2004 (Supp. 1) 475, the appellant was a
Company registered under the Indian Companies Act having its
Head Office at Mumbai. It obtained a loan from the Bhopal
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Branch of the State Bank of India. The Bank issued a notice for
repayment of loan from Bhopal under the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002. The appellant Company filed a writ petition
in the High Court of Delhi which was dismissed on the ground
of lack of territorial jurisdiction. The Company approached this
Court and contended that as the constitutionality of a
Parliamentary legislation was questioned, the High Court of
Delhi had the requisite jurisdiction to entertain the writ petition.
37. From the aforesaid discussion and keeping in view the ratio
laid down in catena of decisions by this Court, it is clear that for
the purpose of deciding whether facts averred by the petitioner
appellant, would or would not constitute a part of cause of
action, one has to consider whether such fact constitutes a
material, essential, or integral part of the cause of action. It is no
doubt true that even if a small fraction of the cause of action
arises within the jurisdiction of the Court, the Court would have
territorial jurisdiction to entertain the suit/petition. Nevertheless
it must be a 'part of cause of action', nothing less than."
6.3 The High Court of Madras in A. John Kennedy and Ors. v.
Joint Director, Directorate of Enforcement, Cochin Zonal Office16
extracting the judgment of the Hon'ble Apex Court in Kusum Ingots and
Alloys Ltd. [AIR 2004 SC 2321] observed 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 a determinative factor to decide the matter on
merit. It observed that:
21. Further, the petitioners cannot file the present Writ Petitions
even on the ground of "forum-conveniens". In this regard, it is
useful to refer a decision in the case of Kusum Ingots and Alloys
Ltd. Vs. Union of India and others, reported in AIR 2004 SC
2321, in which, the Apex Court held that a writ petition,
questioning the Constitutionality of a Parliamentary Act was not
MANU/TN/7063/2020
Dr.GRR,J
be maintainable in the High Court of Delhi merely because the
seat of the Union of India was in Delhi. On the point of "forum-
conveniens", the Supreme Court held as follows:
"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.
(See Bhagat Singh Bugga Vs. Dewan Jagbir Sawhney
(AIR 1941 Cal 670 : ILR (1941) 1 Cal 490), Madanlal
Jalan Vs. Madanlal [(1945) 49 CWN 357 : AIR 1949 Cal
495], Bharat Coking Coal Ltd. Vs. Jharia Talkies & Cold
Storage (P) Ltd. [(1997) CWN 122], S.S.Jain & Co. Vs.
Union of India [(1994) 1 CHN 445] and New Horizons
Ltd. Vs. Union of India [AIR 1994 Delhi 126].'
(emphasis supplied)
22. In the above decision (Kusum Ingots and Alloys Ltd. case)
of the Supreme Court, the Apex Court held that a High Court
may refuse to exercise its discretionary jurisdiction by invoking
the doctrine of "forum conveniens". Thus, there is no question of
granting leave to file Writ Petition under Article 226(2) of the
Constitution of India in case where a small fraction of cause of
action may have arisen. In appropriate cases, the High Court
may however refuse to exercise its discretionary jurisdiction by
invoking the Doctrine of "Forum-Conveniens".
23. Whether the principle of "Forum-Conveniens" or analogous
principles, will apply or not, for consideration of an Application
for leave to sue under Clause 12 of the Letters Patent, fell for
consideration before a Full Bench of this Court in Duro Flex
Pvt. Limited Vs. Duroflex Sittings System, reported in 2014 (6)
CTC 577 (FB) : (2014) 5 LW 673 (FB) : AIR 2015 Mad 30 (FB)
= (2015) 1 MLJ 774 (FB), wherein it was held as follows:
"55. We may add that a Division Bench of this Court
comprising two of us (S.K.K., C.J. and M.S.N., J.) had an
occasion to examine the applicability of the Principles of
Forum Conveniens in a case of Writ proceedings in
Bharat Bhogilal Patel Vs. Union of Page No.71/76
https://www.mhc.tn.gov.in/judis/ W.P.Nos.25177 and
25231 of 2019 India, 2014 (6) CTC 285 (DB) : 2014 (7)
MLJ 641. In the context of that judgment, we referred to
the decision of a Five-Judges Bench of the Delhi High
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Court in Sterling Agro Industries Ltd. Vs. Union of India,
AIR 2011 Del. 74, which had gone into the Doctrine of
Forum Conveniens vis-a-vis the Concept of Cause of
Action. In the context of that judgement, it was observed
in Sterling Agro Industries Ltd. case (supra) as under:
"The Concept of forum conveniens fundamentally means
that it is obligatory on the part of the Court to see the
convenience of all the parties before it. The convenience
in its ambit and sweep would include the existence of
more appropriate forum, expenses involved, the law
relating to the lis, verification of certain facts which are
necessitous for just adjudication of the controversy and
such other ancillary aspects. The balance of convenience
is also to be taken note of.
The Principle of Forum Conveniens in its ambit and
sweep encapsulates the concept that a cause of action
arising within the jurisdiction of the Court would not itself
constitute Court to entertain the matter. While exercising
jurisdiction under Articles of the Constitution of India, the
Court cannot be totally oblivious of the Concept of Forum
Conveniens.
The conclusion thus arrived at was that the Principles of
Forum Conveniens, though applicable to the International
law as a principle of Comity of Nations, would apply to
the discretionary remedy under Article 226 of the
Constitution of India."
24. Recently, this Court has also held in O.S.A.Nos.38, 40 and
42 of 2020 (Sulphur Mills Limited Vs. M/s.Dayal Fertilizers
Pvt. Limited and three others), by judgment dated 11.11.2020
that, even though a part of cause of action arises in one Court
and the major part of cause of action had arisen within the
jurisdiction of the other Court, the petition is not maintainable
before the Court where the small part of cause of action had
arisen."
6.4 The High Court of Madras in Karthi P. Chidambaram and
Ors. v. Superintendent of Police held that:
"12. Once an FIR is filed, it is mandatory for the Investigation
Agency to send the copy of the FIR to the Magistrate/Special
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Court having jurisdiction. The Court which monitors the actions
of the investigating agency and also addresses/redresses the
grievances, if any, of either the accused or the investigating
agency as per the code of Criminal Procedure. In matters
pertaining to all criminal investigations/proceedings arising
therefrom, it is the High Court which has the supervisory
jurisdiction over the said jurisdictional Court
monitoring/supervising the investigation, which would exercise
the jurisdiction either under Article 226 or 227 of the
Constitution of India and under section 482 of the Code.
13. 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 supervisory jurisdiction over the
jurisdictional court which is monitoring the investigation as
per Cr.P.C."
7. Thus all these cases would show how the legal position under
Article 226(2) is evolving, how the concept of cause of action is
incorporated in Article 226, the history behind it and though initially it is
stated that even if a small fraction of the cause of action arises within the
jurisdiction of the Court, that Court would have territorial jurisdiction to
entertain the suit/petition to the extent that the petition is not maintainable
before the Court where a small part of cause of action had arisen and the
major part of cause of action shall be considered for applicability of
territorial jurisdiction of the Court and had taken a full circle in observing
that the concept of part of cause of action is irrelevant and had no
application in criminal proceedings and only that High Court could
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entertain a prayer for quashing which has the supervisory jurisdiction over
the jurisdictional court which is monitoring the investigation as per Cr.P.C.
8. The issue whether a writ petition under Article 226 is maintainable
against a Criminal Court situated outside the territorial jurisdiction of the
Court as well as whether the Court could judicially review the action of the
Magistrate in taking cognizance of the offence located outside the territorial
jurisdiction of the court is considered by the High Court of Kerala in
Augustine Babu P.M. Vs. Mohd. Samiur Rahman Ansari and Ors.17 It
held that:
"8. The main issue to be decided in this petition is as to whether
Writ Petition under Article 226 is maintainable as against a
criminal court which is situated outside the territorial
jurisdiction of this Court. A Full Bench of this Court had
occasion to consider that pertinent issue in Meenakshi Sathish v.
Southern Petrochemicals Industries reported in 2007 (1) KLT
890 FB and it was held in paragraphs 9 and 10 thereof that in
view of clause (2) of Article 226, if part of the cause of action
had arisen in the State, writ could be issued against an authority,
though the seat of that authority is outside the territorial
jurisdiction of this Court. But, the cause of action which must
arise in Kerala for issuing the writs of certiorari or prohibition,
must relate to the commissions or omissions of an inferior court
or Tribunal amenable to the writ jurisdiction of that court and
not that of a private party. This Court cannot judicially review
the actions of the first respondent therein (the complainant
concerned) and that if a complainant files any complaint before
any court it may do it rightly or wrongly and the complainant in
a complaint alleging offence under Section 138 of the
Negotiable Instruments Act, being a private party is not
amenable to the writ jurisdiction of this Court under Article 226
and therefore, this Court cannot judicially review the actions of
such a complainant by invoking the powers conferred
2017 (4) KLJ 390
Dr.GRR,J
under Article 226 of the Constitution of India. The other point
that was considered by the Full Bench was as to whether the
court could judicially review the action of the Magistrate in
taking cognizance of the offence under Section 190(1)(a) read
with Section 200 of the Cr.P.C and in issuing process
under Section 204 Cr.P.C It was found on facts that the entire
cause of action as far as the action of the learned Magistrate was
found to have arisen in Coimbatore, which is outside the
territorial jurisdiction of this Court and it was held that even if
the complainant has wrongly filed a complaint before the
Coimbatore court, the action of taking cognizance and issuance
of the process took place outside the jurisdiction of this Court
and therefore, the reliefs sought for in the Writ Petition cannot
be granted by this Court and that even if the cause of action for
the complaint under Section 138 of the Negotiable Instruments
Act arose in Kerala, this Court cannot interfere with the
proceedings for a criminal court which is situated outside the
territorial jurisdiction of this Court. It will be profitable to refer
to paragraphs 8, 9 and 10 of the above said Full Bench decision
in Mrs. Meenakshi Sathish v. M/S. Southern Petrochemical
Industries &. Ors. reported in 2007 (1) KLT 890 (F.B).
"8. In the light of the above mentioned two decisions of
the Apex Court in Navinchandra and Mosaraf Hossain
Khan, which Division Bench decision of this Court, that is
whether the decision in Krishnakumar Menon's case or
the decision in U.B.C's case, lays down the correct legal
position, is the point to be answered in this case. There
cannot be any dispute that the complaint before the
Coimbatore court and taking cognizance of the same by
the said court cannot be challenged under S.482 of the
Cr.P.C or under Art.227 of the Constitution of India,
before this Court. The only contention raised is that a Writ
Petition under Article 226 will lie, in view of clause (2)
thereof, as part of the cause of action in the transaction
regarding issuance of the cheque, its dishonour etc., arose
in Kerala.
9. Art. 226(2) reads as follows:
"226. Power of High Courts to issue certain writs:--
(1) .....
(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
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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."
The said clause was introduced as clause (1A) by the
15th Amendment Act, 1963, in view of the decisions
of the Apex Court in Election Commission, India v.
Saka Venkata Subba Rao ((1953) S.C.R
1144), Rashid v. I.T Investigation
Commission ((1954) S.C.R 738), Lt. Col. Khajoor
Singh v. Union Of India & Another (AIR 1961 SC
532) and Collector of Customs v. E.I Commercial
Co. (AIR 1963 SC 1124). The result of the above
decisions was that Writ Petitions under Art.226
against the Union of India were maintainable only in
the High Court of Punjab, as at the relevant time the
territory of national capital was under the jurisdiction
of the said High Court. The High Courts of Madras
and Assam took a different view that if part of the
cause of action arose within the respective States,
writs could be issued to the Union of India by them.
To get over the above decisions of the Apex Court
and make the law in tune with the decisions of the
above High Courts, the amendment was introduced.
Art.226 was drastically amended by Constitution
42nd Amendment Act, 1976. The original position
was substantially restored later, by the Constitution
44 Amendment Act, 1978. In view of clause (2) of
Art.226, if part of the cause of action arose in the
State, writ could be issued against an authority,
though the seat of it is outside the territorial
jurisdiction of this Court.
10. But, the cause of action which must arise in Kerala for
issuing the writs of certiorari or prohibition, must relate to
the commissions or omissions of an inferior court or Tribunal
amenable to the writ jurisdiction of this Court and not that of
a private party. This Court cannot judicially review the
actions of the 1 respondent. It may file any complaint before
any court. It may do it rightly or wrongly. The 1st respondent
being a private party not amenable to the writ jurisdiction of
this Court, we cannot judicially review its actions. But, the
point to be decided is whether we can judicially review the
action of the Magistrate in taking cognizance under
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S.190(1)(a) read with S.200 of the Cr.P.C of the offence
alleged against the petitioner and issuing process under S.204
The entire cause of action, as far as the action of the learned
Magistrate is concerned, arose in Coimbatore, outside the
jurisdiction of this Court. So, even if the complainant has
wrongly filed a complaint before the Coimbatore court, the
action of taking cognizance and issuance of the process took
place outside the jurisdiction of this Court. Therefore, we
have no doubt in our mind that the reliefs sought in this Writ
Petition cannot be granted by this Court. We are of the view
that the decision of the Division Bench in M/S. Ubc & Others
v. M.R Govarthanam (2005 (2) KLT 461) lays down the
correct legal position. The observation in Krishnakumar
Menon's case concerning the power of this Court under
Art.226 of the Constitution of India is an obiter. Further, the
decision of the Apex Court in Navinchandra's case (supra)
cannot have any application to a case arising on a private
complaint under (2009) 3 SCC 78. In Navinchandra's case,
the Apex Court considered the question regarding quashing
of an F.I.R and the criminal investigation conducted by the
police in Shillong about the offences committed or the cause
of action which arose in Maharashtra State. So, as the police
from Shillong has to do investigation in Maharashtra, the
Apex Court observed that the Bombay High Court has
jurisdiction in the matter. The said observation can have no
application to a private complaint, based on which a
Magistrate's court, which is outside the jurisdiction of the
Kerala High Court takes cognizance and proceeds with the
trial. So, the observation in Krishnakumar Menon's case,
concerning the jurisdiction of the High Court under Article
226 of the Constitution of India, does not lay down the
correct legal position, as far as private complaints are
concerned. Even if the cause of action for the complaint
under S.138 of the Negotiable Instruments Act arose in
Kerala, the Kerala High Court cannot interfere with the
proceedings before a criminal court, outside the jurisdiction
of this Court."
9. In the present case also the learned senior counsel for the
petitioners placed reliance upon the decision of the Hon'ble Supreme Court
reported in Navin Chandra N. Majithia's case (to contend that from the
provision in clause (2) of Article 226 it is clear that the maintainability or
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otherwise of the writ petition in the High court would depend on whether
the cause of action for filing the same arose, wholly or in part, within the
territorial jurisdiction of the Court.
10. The Hon'ble Apex Court in Mosaraf Hossain Khan's case (8
supra) held that:
"25. It is no doubt true that in a criminal matter also the High
Court may exercise its extra-ordinary writ jurisdiction but
interference with an order of Magistrate taking cognizance
under Section 190 of the Code of Criminal Procedure will stand
somewhat on a different footing as an order taking cognizance
can be the subject matter of a revisional jurisdiction as well as of
an application invoking the inherent jurisdiction of the High
Court. A writ of certiorari ordinarily would not be issued by a
writ court under Article 226 of the Constitution of India against
a Judicial Officer. [See Naresh Shridhar Mirajkar & Ors. vs.
State of Maharashtra & Anr. [AIR 1967 SC 1 : (1966) 3 SCR
744]. However, we are not oblivious of a decision of this Court
in Surya Dev Rai vs. Ram Chander Rai & Ors. [(2003) 6 SCC
675] wherein this court upon noticing Naresh Shridhar Mirajkar
(supra) and also relying on a Constitution Bench of this Court
in Rupa Ashok Hurra vs. Ashok Hurra [(2002) 4 SCC 388]
opined that a Judicial Court would also be subject to exercise of
writ jurisdiction of the High Court. The said decision has again
been followed in Ranjeet Singh vs. Ravi Prakash [(2004) 3 SCC
692]. It is, however, not necessary to dilate on the matter any
further. The jurisdiction of the High Court under Section 482 of
Code of Criminal Procedure was noticed recently by this Court
in State of U.P. & Ors. vs. Surendra Kumar [(2005) 9 SCC 161]
holding that even in terms thereof, the court cannot pass an order
beyond the scope of the application thereof. In Surya Dev Rai
(supra), we may however, notice that this Court categorically
stated that the High Court in issuing a writ of certiorari exercises
a very limited jurisdiction. It also made a distinction between
exercise of jurisdiction by the High Court for issuance of a writ
of certiorari under Article 226 and 227 of the Constitution of
India. It categorically laid down that while exercising its
jurisdiction under Article 226, the High Court can issue a writ of
certiorari only when an error apparent on the face of the record
appears as such; the error should be self evident. Thus, an error
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according to this Court needs to be established. As regards
exercising the jurisdiction under Article 227 of the Constitution
of India it was held: (SCC P.689. para 24)
28. We have referred to the scope of jurisdiction under Articles
226 and 227 of the Constitution only to highlight that the High
Courts should not ordinarily interfere with an order taking
cognizance passed by a competent court of law except in a
proper case. Furthermore only such High Court within whose
jurisdiction the order of subordinate court has been passed,
would have the jurisdiction to entertain an application
under Article 227 of the Constitution of India unless it is
established that the earlier cause of action arose within the
jurisdiction thereof.
29. The High Court, however, must remind themselves about the
doctrine of forum non conveniens also. [See Mayar (H.K) Ltd.&
Ors. vs. Owners & Parties Vessel M.V. Fortune Express & Ors.
- 2006 (2) SCALE 30]
11. The Hon'ble Apex Court in Shri Rajendra Ramchandra
Kavlekar's case (9 supra) held that:
"3. It may be useful to extract the reasoning, conclusion and the
directions issued by the Court to appreciate the issues canvassed
by the appellant. It is as under:
"From the submissions made by the petitioner's advocate,
it is clear that the Jharkhand Court is seized of the matter.
It is a CBI Court, all papers and documents pertaining to
the case mentioned above are in the custody and
possession of the said court and, therefore, it will not be
proper for the Court to entertain this petition for quashing
the proceedings."
15. The learned Senior Counsel for the respondents further
submitted that the investigation in RC Case No. 1(A) of 2004 is
completed by CBI, Ranchi and the charge sheet against the
appellant and against Shri P.C. Ram, Dispatch Clerk of Ranchi
University has been filed before the Special Judge (CBI), Ranchi
and the same is pending consideration. Therefore, the learned
counsel would submit that the High Court of Judicature at
Bombay was right in declining to entertain the criminal writ
petition filed by the appellant.
Dr.GRR,J
22. In the instant case, CBI has initiated the suo motu
investigation against the appellant. In the first information report
filed before the Special Judge (CBI), Ranchi, it is stated that
during the course of investigation of RC Case No. 1(A) of 2004,
which was registered pursuant to the orders of the High Court of
Jharkhand at Ranchi, a reliable source of information had been
received to the effect that Shri Rajendra Ramchandra Kavalekar
(the appellant) had entered into a criminal conspiracy with the
other unknown persons including the officials of Ranchi
University during academic year 1993-1994 by obtaining the
false and forged marksheets of Ranchi University, and, further,
on the strength of those false and fabricated documents
pertaining to his graduation degree, fraudulently and dishonestly
obtained employment in India Tourism Development
Corporation as Cashier-cum Sales Assistant.
25. A bare perusal of the complaint filed would clearly go to
show that the cause of action arose within the jurisdiction of
Special Judge (CBI), Ranchi, the investigation is completed in
Ranchi, all the records and the documents pertaining to
complaint and the charge sheet are before the Special Judge
(CBI), Ranchi, and therefore, in our considered view, the High
Court of Judicature at Bombay was perfectly justified in
declining to entertain the Writ Petition filed by the petitioner."
12. The Hon'ble Apex Court in Dashrath Rupsingh Rathod's case
(10 supra) held that:
16. We have already cautioned against the extrapolation of civil
law concepts such as "cause of action" onto criminal
law. Section 177 of the CrPC unambiguously states that every
offence shall ordinarily be inquired into and tried by a Court
within whose local jurisdiction it was committed. "Offence", by
virtue of the definition ascribed to the word by Section 2(n) of
the CrPC means any act or omission made punishable by any
law. Halsbury states that the venue for the trial of a crime is
confined to the place of its occurrence. Blackstone opines that
crime is local and jurisdiction over it vests in the Court and
Country where the crime is committed. This is obviously the
raison d'etre for the CrPC making a departure from the CPC in
not making the "cause of action" routinely relevant for the
determination of territoriality of criminal courts. The word
"action" has traditionally been understood to be synonymous to
"suit", or as ordinary proceedings in a Court of justice for
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enforcement or protection of the rights of the initiator of the
proceedings. "Action, generally means a litigation in a civil
Court for the recovery of individual right or redress of individual
wrong, inclusive, in its proper legal sense, of suits by the
Crown" - [Bradlaugh v. Clarke 8 Appeal Cases 354 p.361].
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 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", 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
Dr.GRR,J
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 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."
13. The High Court of Madras in S Ilanahai 's case (11 supra) held
that:
"40. Thus, in my considered opinion, so far as the power
under Section 482 of the Code of Criminal Procedure for the
purpose of quashing the F.I.R. is concerned, the only criteria is
the situs of the authority who has registered the case and not the
place of commission of the crime either in full or in part.
Similarly, the writ jurisdiction of the High Court under Article
226 of the Constitution to quash a criminal case also does not
extend beyond the territorial limits of the said High Court if the
case is pending on the file of an authority who is located outside
the territorial limits of the said High Court. This conclusion is
inescapable, in view of the authoritative pronouncement of the
larger Bench of the Hon'ble Supreme Court in Dashrath
Rupsingh Rathod case (cited supra) wherein the Court has held
that the concept of "cause of action" which is relevant to Civil
Law cannot be imported to Criminal Law.
Dr.GRR,J
41. In view of the said settled position, I hold that in the instant
case, 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
limits of this Court, this petition is not at all maintainable before
this Court.
42. In the result, this petition is dismissed for want of territorial
jurisdiction. Consequently, the connected miscellaneous petition
is closed."
14. The High Court of Madras in A.M Asha's case (12 supra) held
that"
"6. The facts remains that the second respondent lodged a
complaint before the Inspector of Police, Women Police Station,
Vizianagaram, Andhra Pradesh and after completion of
investigation, the first respondent filed a final report before the
jurisdictional Court and the same has been taken cognizance for
the offence under Sections 498A, 506 of IPC r/w Sections
3 and 4 of Dowry Prohibition Act, 1961 in C.C.No.1198 of 2016
on the file of the learned Additional Judicial First Class
Magistrate, Vizianagaram and it is pending for trial. Though the
petitioners are residing at Chennai within the jurisdiction of this
Court territory, this Court has no jurisdiction to entertain this
Writ Petition, in view of the above order passed by this Court, as
discussed the law in Navinchandra N Majithia's case based on
the subsequent judgment of the Hon'ble Supreme Court of India
reported in (2014) 9 SCC 129 in the case of Dashrath Rupsingh
Rathod Vs. State of Maharashtra and another in 2015 (1) MWN
(Cr.) 618 in the case of S.Ilanahai Vs. The State of Maharashtra.
7. Therefore, this Court is of the considered opinion that the writ
jurisdiction of this Court under Article 226 of Constitution of
India, to quash the criminal proceedings does not extend beyond
the territorial jurisdiction limit of the said High Court, if the case
is pending on the file of an authority, who is located out side the
territorial limits of the said High Court. Therefore, this Court has
no jurisdiction to entertain this writ petition to quash the
proceedings in C.C.No.1198 of 2016 on the file of the learned
Additional Judicial First Class Magistrate, Vizianagaram.
8. Accordingly, this Writ Petition is dismissed as this Court has
no jurisdiction and the petitioner is at liberty to approach the
Dr.GRR,J
concerned jurisdictional Court for appropriate relief.
Consequently, connected miscellaneous petition is closed. No
costs."
15. The High Court of Kerala in Anil Kumar's case (12 supra) held
that:
"7. By virtue of Article 226(2) of the Constitution of India, a
wider discretion was given to the High Court, if any part of the
cause of action whether wholly or in part had taken place within
the jurisdiction of that court and it is likely to be enforced within
the jurisdiction of that court, to exercise the power
under Art.226(1) of Constitution to that court. The dictum laid
down in the decision in Navinchandra N.Majithia's case (supra)
is not applicable to the facts of the case. That was case where the
First Information Report was registered within the Police Station
where no part of the transaction had taken place. Under such
circumstances, the Honourable Supreme Court invoking the
power under Article 32 and explaining the scope of Article
226 of the Constitution, transferred the case to the Police Station
within whose jurisdiction the incident has happened.
8. The similar question regarding the jurisdiction of the High
Court to quash the proceedings pending before another court
within the jurisdiction of another High Court was considered by
this Court in the decision reported in UBC Vs Govarthanam's
case and held that it is not proper for the High Court of Kerala to
entertain writ petition to quash proceedings of a subordinate
court under the superintendence of another High Court and
observed as follows:
It is not proper for this Court to exercise the discretionary
jurisdiction under Article 226 of the Constitution of India to call
for the records and examine the legality or otherwise of the
proceedings of a subordinate Court under the superintendence of
another High Court under Article 227 of the Constitution. In our
view, the parties involved in the case pending before the
Criminal Court at Erode can more appropriately invoke the
jurisdiction of the High Court of Madras either under Article
226 or under Article 227 or under both the Articles.
8. In the very nature of the jurisdiction conferred on the High
Courts by the aforesaid provisions of the Constitution, the self
same proceedings of a subordinate Court can become the subject
matter of two or more proceedings; one filed before the High
Court having jurisdiction under Clause (2) of Article
Dr.GRR,J
226 seeking to quash the lower Court proceedings on the plea
that the cause of action, wholly or in part, arose within the
territorial jurisdiction of that High Court and the other filed
before the High Court within whose jurisdiction the seat of the
subordinate Court is situate and thus having jurisdiction under
Clause (1) of Article 226 as also under Article 227 of the
Constitution. It is possible that in a wide range of disputes,
parties may seek reliefs in respect of the very same subject
matter between the same parties, invoking Article 226 or/and
227 of the Constitution. It is sound thinking that neither the
provisions of the Constitution nor the laws intend that two or
more courts, though having concurrent jurisdiction, shall take
cognizance of disputes between the same parties in regard to the
same subject matter, hold parallel proceedings and render
verdicts touching the merits of the issues to resolve the dispute.
However, such an undesirable result is likely to emerge if this
Court proceeds to entertain the Writ Petition seeking to quash
under Article 226 the proceedings of the Criminal Court at
Erode over which the High Court of Madras is competent to
exercise the power under Article 226 and 227 of the
Constitution. Added to the above jurisdictional factors, the High
Court competent to exercise the power conferred under Section
482 of Crl.P.C. and to quash the proceedings of the Criminal
Court at Erode so as to prevent failure of justice or abuse of the
process of that subordinate Court, is the High Court of Madras.
If the subordinate Court commits jurisdictional errors, the High
Court having the power of superintendence can step in and
exercise the supervisory jurisdiction under Article
227 appropriately. It is settled law that interference under Article
227(1) can be suo motu as well. Notwithstanding the forum
chosen by the aggrieved party to challenge the proceedings of
the subordinate Court, the High Court having the power of
superintendence can suo motu exercise its power under Article
227 of the Constitution. Therefore, even in a case where the
cause of action has arisen wholly within the territorial limits of
another High Court, the High Court having the power of
superintendence over that subordinate Court which has initiated
proceedings or taken cognizance or otherwise proceeds with, in
respect of a matter the cause of action of which has arisen within
the jurisdiction of another Court can exercise the power to issue
writs under Article 226(1) as also the power of superintendence
under Article 227 and undo or set right the illegality. Therefore,
among the two High Courts mentioned above, the High Court
which is more appropriate would be the one within whose
jurisdictional limits the particular subordinate Court is situated
so that the powers conferred under Articles 226 and 227 of the
Constitution of India as also the power under Section 482
Dr.GRR,J
Cr.P.C. can be exercised, as situation demands. This is the
rationale and logical basis for us to hold that the Writ Petition
filed to quash the proceedings of the Criminal Court at Erode
need not be entertained by this Court.
9. In the decision reported in Mosaraf Hossain Khan's case
(supra), the Hon'ble Supreme Court has held as follows:
"In a criminal matter also the High Court may exercise its
extra-ordinary writ jurisdiction but interference with an
order of Magistrate taking cognizance under Section
190 of the Code of Criminal Procedure will stand
somewhat on a different footing as an order taking
cognizance can be the subject matter of a revisional
jurisdiction as well as of an application invoking the
inherent jurisdiction of the High Court. A writ of
certiorari ordinarily would not be issued by a writ court
under Article 226 of the Constitution of India against a
Judicial Officer. The High Court under Article 226 should
not ordinarily interfere with an order taking cognizance
passed by a competent court of law except in a proper
case. Furthermore only such High Court within whose
jurisdiction the order of subordinate court has been
passed, would have the jurisdiction to entertain an
application under Article 227 of the Constitution of India
unless it is established that the earlier cause of action
arose within the jurisdiction thereof. The High Court,
however, must remind themselves about the doctrine of
forum non conveniens also."
10. Further the same question has been considered by the Full
Bench of this court in Meenakshi Sathish Vs. Southern
Petrochemical Industries (supra) and observed as follows:
"In view of Clause (2) of Article 226, if part of the cause
of action arose in the State, writ could be issued against an
authority, though the seat of it is outside the territorial
jurisdiction of this Court. But, the cause of action which
must arise in Kerala for issuing the writs of certiorari or
prohibition, must relate to the commissions or omissions
of an inferior Court or Tribunal amenable to the writ
jurisdiction of this Court and not that of a private party.
This Court cannot judicially review the actions of the 1st
respondent. It may file any complaint before any Court. It
may do it rightly or wrongly. The 1st respondent being a
private party not amenable to the writ jurisdiction of this
Court, we cannot judicially review its actions. But, the
Dr.GRR,J
point to be decided is whether we can judicially review
the action of the Magistrate in taking cognizance
under Section 190(1)(a) read with Section 200 of the Cr.
P.C, of the offence alleged against the petitioner and
issuing process under Section 204. The entire cause of
action, as far as the action of the learned Magistrate is
concerned, arose in Coimbatore, outside the jurisdiction
of this Court. So, even if the complainant has wrongly
filed a complaint before the Coimbatore Court, the action
of taking cognizance and issuance of the process took
place outside the jurisdiction of this Court. Therefore, we
have no doubt in our mind that the reliefs sought in this
writ petition cannot be granted by this Court. Even if the
cause of action for the complaint u/s 138 of NI Act arose
in Kerala, the Kerala High Court cannot interfere with the
proceedings before a criminal court, outside the
jurisdiction of this court.
So, in view of the above dictum laid down in the decision cited
supra, it is not proper on part of this court to exercise
jurisdiction under Article 226(2) of the Constitution of India to
quash the proceedings which was taken cognizance on the basis
of an order passed by a competent Magistrate and pending
within the jurisdiction and the superintendence of another High
Court."
16. This Court also agrees with the view taken by the Kerala High
Court as the present case has reached the stage of completion of
investigation and entered the stage of taking cognizance by the Court which
is situated in another State, outside the territorial jurisdiction of this State, it
is considered not appropriate to call for records from the said Court over
which this Court would not have any superintendence to exercise its
jurisdiction.
Dr.GRR,J
17. Hence this question is answered holding that even though a part
of cause of action arises in this State, as the investigation was culminated in
filing the charge sheet and the case is also taken cognizance by a competent
court situated outside the territorial limits of this State, this Court cannot
exercise its jurisdiction to entertain the writ petition under Article 226(2) of
the Constitution of India.
18. Since the question of territorial jurisdiction is answered against
the petitioner, it is considered not appropriate to deal with the merits of the
matter to answer question No.2.
19. Hence, the writ petition is dismissed. The petitioner can
approach the appropriate court for appropriate relief. No costs.
Miscellaneous Petitions pending, if any, shall, stand closed.
_____________________
Dr. G. RADHA RANI, J
August 23, 2022
KTL\
Note:
L.R. copy to be marked.
