SARIKA versus ADMINISTRATOR, MAHAKALESHWAR MANDIR COMMITTEE, UJJAIN (M.P.) & ORS. on 1 September 2020

1. This Court is monitoring the compliance of the judgment andorder passed by this Court in Civil Appeal No. 4676/2018 on 02.05.2018.We have appointed an Expert Committee consisting of experts ofArchaeological Survey of India and Geological Survey of India concerningthe prevention of erosion of Shivalinga in Shri Mahakaleshwar Templeat Ujjain. The Expert Team visited Ujjain on 19.01.2019. Its Reportindicates that there was erosion of Shivalinga after the last inspection,and it is a continuing process. The last inspection was made earlier in2018. The time gap was short when the inspection was made. As such,the extent of further erosion was not measured. However, the factsremain that there was some erosion of the Shivalingam. We have videorder dated 19.08.2020 called for the Action Taken Report from theTemple Committee. The Temple Committee has submitted the responseto the various measures pointed out by the Committee of the Experts inthe inspection report dated 19.01.2020. Since it has been noted that thedeterioration and erosion of Lingam is a continuing process, thephotographs of July 2020 indicate that there was further erosion of theLingam. A patch of Shivlinga towards the side of the deity of ShriKartikeyan is quite visible. The matter is of grave concern as due toreckless offerings, the Lingam of Omkareshwar Temple was destroyed.The Report indicates that the pH value of Bhasma Aarti stands at 10.51,which is required to be improved and is reactive to Cryptocrystalline

A

B

C

D

EF

G

H

Asiliceous cementing material of orthoquartzite at room temperature andcausing deterioration in Jyotirlingam. Sanitation and drainage wererequired to be improved. There was a mechanical erosion also of theLingam due to the weight of Mund Mala and Serpakarnahas. Thoughtheir weight has been reduced to half, mechanical abrasion takes placedue to their existing weight. It was also suggested that the rubbing of theBLingam by the devotees be strictly banned. It was also reported thatthere was modern style construction made in the temple premises, whichneeds to be removed. It was also pointed out that the modern constructionwithin the temple premises was in progress, which was required to bestopped and removed. The necessity was also felt to restore the originalCwork. The walls were painted with colours, which was giving a bad lookto the ancient heritage place. There were additions in the form of eyesorepainting inside the temple, which were yet to be removed. It was reportedthat ghee, milk, curd, and honey are regular in the offering. The TempleManagement Committee has decided to provide pure and natural offeringmaterial to pilgrims. There was a necessity for a periodical review ofDthe remedial measures.

2. The stand of the Temple Committee is that during BhasmaAarti, the cloth is covered on Shivalinga and is cleaned with RO waterafter that. They are regulating the entry into the Garbh Griha, and duringthe COVID pandemic, no access is permitted. They have been restoringEthe original work, which is in progress and will be completed withinthree months. Concerning eyesore paintings, their removal is in theprocess and would be completed within three months. The TempleCommittee has decided to meet monthly to do a review.

3. A Report dated 28.07.2019 indicated that ChandranageshwarFTemple in the premises was also not in good shape, and repair work wasrequired. Its roof has become weak.

4. The Temple Committee pointed out that there is a necessity offurther inspection by the experts’ team, as the last inspection was made1½ years ago. The team of experts is located at Bhopal. They can visitGthe temple at any time. Periodic inspection by the Expert Committee isnecessary for the remedial measures and to prevent erosion and topreserve the temple structure. To ensure that there was no rubbing ofShivalinga, the Poojaries (Janeupati, Khutpati), Purohits, and theirauthorized representatives be directed to ensure that no visitors or devoteesHrub the Shivalinga. There should be a video recording of the entire process, and it should be preserved at least for six months. The Temple Committeeshall provide water from Koti Thirth Kund filtered and purified to maintainthe required pH value and shall also provide milk from its resources sothat pure milk is offered to the deity. No visitor shall be allowed to offerPanchamrita to Shivalinga.

5. It was pointed out that during COVID-19, visitors and devoteesare not permitted to enter the sanctum sanctorum. But in our opinion, atthe same time, customary Poojaries and Purohits must perform ritualsas they know the rituals and are expert in pooja and archana. Whenthe Temple Committee prepares the details of rituals, customary Poojariesand Purohits must be associated with the Committee to render properhelp and guidance in the various matters relating to the temple. Of late,it is seen that unfortunately the performance of necessary rituals is themost neglected aspect in the temples, and new Poojaries do not understandthem; the same should not be the state of affairs. There is no scope forcommercialization. The myriad religious rituals and ceremonies are tobe performed regularly. We cannot direct what kind of pooja-archanarituals should be performed, but no doubt, they should be done regularlyby the experts in the field. Accordingly, we direct that the TempleCommittee acts in the manner described above.

6. Concerning the temple structure’s stability, the TempleCommittee has pointed out that on 31.07.2019, this Court directed theCentral Government to get the temple and various structures inspectedby CBRI, Roorkee. The CBRI visited the temple in September 2019and submitted a structural assessment proposal and wanted 12 monthsto submit the project report. It has claimed a sum of Rs. 41.30 Lakhs asproject charges, to be paid in advance. Prayer has been made that thisCourt may direct the Central Government to bear the expenses ofRs.41.30 Lakhs, to be paid to CBRI. The CBRI may be required tosubmit its project report within a reasonable time. Shri Tushar Mehta,learned Solicitor General appearing on behalf of the Union of India, hasagreed that the Central Government would be bearing the expenses ofRs.41.30 Lakhs to be paid to CBRI, Roorkee.

7. It is also submitted on behalf of the Temple Committee that it isnecessary to undertake repairs and maintenance and other constructionactivities within the temple premises and further, as suggested by CBRI.The State or Central Government may be directed to contribute adequatefunds for that purpose, including for the preservation of A

BC

D

EF

G

H

AChandranageshwar Temple. The Temple Committee has also prayedthat encroachment within the area of 500 mtrs. from the temple arerequired to be removed, as recommended by the Expert Committee.The concerned authorities should remove the encroachments and prohibitthe construction, otherwise than essential facilities for the public andpilgrims.B

8. The learned counsel appearing on behalf of the State of MadhyaPradesh has placed on record a detailed plan prepared by the UjjainSmart City Limited (USCL) for the comprehensive development of ShriMahakaleshwar Temple and surrounding areas. The project is namedas “Mahakaal Rudrasagar Integrated Development Approach”C(MRIDA). Letter dated 27.08.2020 issued by CEO, Ujjain Smart CityLtd. to the Collector is placed on record, pointing out various developmentsproposed for the development in Phase I and Phase II of theabovementioned project.

9. Considering the facts and circumstances of the Report submittedDby the Experts Committee dated 19.01.2019 and the Report of the TempleCommittee as well as the project report prepared by the Ujjain SmartCity Ltd., we issue the following directions:-

(i) That the Expert Committee shall visit the temple and submit areport by 15[th] December 2020, as to the steps to be taken to preventEdeterioration of Shivlinga and the steps to be taken to preserve the templestructure, including Chandranageshwar Temple.

(ii) We also direct the Committee to do a yearly survey and submita report to this Court.

F(iii) To preserve the Shivalingam, we direct that :

(a) any devotee should do no rubbing of the Shivalingam.

(b) The Temple Committee to ensure that the pH value ofBhasma during the Bhasma Aarti is improved and Shivalingamis preserved from further deterioration and to implement theGbest methodology to prevent further damage to the Lingam.

(c) The Temple Committee ensures that weight of Mund Malaand Serpakarnahas is further reduced to preserve theShivalingam from mechanical abrasion. The Temple Committeeto find out a way and consider whether it is necessary to useHthe Metal Mund Mala on the Shivalingam, or there can be a SARIKA v. ADMINISTRATOR, MAHAKALESHWAR MANDIRCOMMITTEE, UJJAIN (M.P.) & ORS. [ARUN MISHRA, J.]

way out to use Mund Mala and Serpakarnahas without touchingthe Shivalingam. Possibility of further reducing weight mayalso be found out to prevent mechanical abrasion.

(d) The rubbing of curd, ghee, honey on the Shivalingam bythe devotees is also a cause of erosion. It would be appropriatethat only pouring of a limited quantity of pure milk is allowedby the Committee. Whereas in the traditional puja to be doneon behalf of the temple, all pure materials can be used.

(e) Poojaries, Janeupati, Khutpati, Purohits, and their authorizedrepresentatives to strictly ensure that no visitor or devotee rubthe Shivalingam at any cost. If it is done by any devotee,accompanying Poojari or Purohit shall be responsible for notstopping the rubbing. No rubbing of Shivalingam to be done byanyone except during traditional Puja and Archana performedon behalf of the temple.

(f) The entire proceedings of Puja and Archana in Garbh Grihato be video recorded 24 hours and be preserved at least for sixmonths. If any violation is found by any Poojari, Purohit, let theTemple Committee take suitable action against that Poojari orPurohit, as considered appropriate.

(g) As agreed to on behalf of the Temple Committee, noPanchamrita to be poured on Shivalingam by any devotee. Itmay be used only during traditional Puja and Archana of theShivlingam.

(h) The Temple Committee shall provide pure milk from itsresources to the visitors and devotees for offering and makearrangements for that. The Committee should ensure that noimpure or adulterated milk is offered to Shivalingam andconcerned Poojari/ Purohit to ensure compliance.

(iv) The Temple Committee shall provide water from Koti ThirthKund filtered and purified and further maintain the required pH value.

(v) Let the CBRI, Roorkee visit the temple, if necessary, andsubmit a project report as per its proposal dated 17.09.2019. CBRI,Roorkee, is directed to submit a project report regarding structural stabilitywithin six months. A sum of Rs. 41.30 Lakhs, as required by it, shall bepaid by the Central Government as early as possible.

A

BC

D

E

F

G

H

A

(vi) Ujjain Smart City Ltd., as per its letter dated 27.08.2020, isdirected to undertake Mahakaal Rudrasagar Integrated DevelopmentApproach (Phase I and Phase II) forthwith and submit to this Courtdetailed project report and the time frame within six weeks.

(vii) Let the details of necessary repairs, maintenance, andBimprovement be worked out and carried out forthwith. Let the Collectorprepare a comprehensive plan for this purpose with the help of theSuperintendent Engineer and available Architect. The State Governmentshall sanction fund immediately. Let a suitable plan and estimate beprepared within four weeks, and necessary repair and maintenance workbe carried out urgently.C

(viii) The Expert Committee ordered the removal of modernadditions, as noted at Item No. 20. They shall be removed, and the TempleCommittee shall file a compliance report to this Court by 15[th] December,2020.

(ix) The original work in the temple is required to be restored. AsDassured by the Committee, let restoration work be done concerningeyesore painting by 15[th] December, 2020. The Temple Committee isdirected to ensure in future not to permit or resort to such painting andcovering of the original work, objected by the Expert Committee. Let areport be submitted to this Court in this regard by 15[th] December, 2020.

E

(x) We direct the Collector and Superintendent of Police of Ujjainto ensure that encroachment within 500 mtrs. of the area of the templepremises are removed, as suggested by the Experts Committee. Letneedful be done by 15[th] December, 2020, and a report be submitted tothis Court.F(xi) Concerning the preservation and maintenance of

(xi) Concerning the preservation and maintenance ofChandranageshwar Temple, a comprehensive plan be prepared andimplemented, and be submitted to this Court for information.

(xii) If any area is slippery in Garbh Griha, the Temple Committeeto ensure that the needful is done.

G(xiii) Let the necessary religious rituals be performed regularlyalong with other aspects as discussed in Para 5 of the order.

Let the case be listed for further monitoring and consideration ofthe Compliance Report in the second week of January 2021.

HDivya Pandey

Directions issued.

[2020] 9 S.C.R. 311

KAUSHIK CHATTERJEE

v.

STATE OF HARYANA & ORS.

(Transfer Petition (Crl.) No.456 of 2019)

SEPTEMBER 30, 2020

[V. RAMASUBRAMANIAN, J.]

Transfer Petition – The petitioner herein was appointed bythe second respondent, which is a non-banking finance companyand the de facto complainant in the criminal cases filed – Threeloans sanctioned by the second respondent-company, during theperiod when the petitioner was in service, became the subject-matterof the three different complaints lodged by the second respondent-company – All three complaints were filed in Gurugram – Aftercompletion of investigation police filed charge-sheet in 3 FIRs foralleged offences of criminal breach of trust, cheating, forgery alongwith various other offences – The petitioner sought transfer of allthree criminal cases pending in the Court of Additional JudicialMagistrate, Gurugram to any competent Court in New Delhi – Itwas contended that the entire cause of action in respect of one casearose in Delhi and the other two cases in Indore and Suratrespectively – Held: In the instant case, the type of jurisdictionalissue raised is one of territorial jurisdiction – The answer to thisdepends upon facts to be established by evidence – The facts to beestablished by evidence, may relate either to the place of commissionof the offence or to other things dealt with by ss. 177 to 184 of theCode – In such circumstances, this Court cannot order transfer, onthe ground of lack of territorial jurisdiction, even before evidenceis marshaled – These questions may have to be raised before thecourt trying the offence and such Court is bound to consider thesame – Code of Criminal Procedure, 1973 – ss.461, 462 and 177 to184.

Dismissing the transfer petitions, the Court HELD: 1. The upshot of the discussion is (i) that the issueof jurisdiction of a court to try an “offence” or “offender” as wellas the issue of territorial jurisdiction, depend upon factsestablished through evidence (ii) that if the issue is one of

A

B

C

DE

F

G

H

Aterritorial jurisdiction, the same has to be decided with respectto the various rules enunciated in Sections 177 to 184 of theCode and (iii) that these questions may have to be raised beforethe court trying the offence and such court is bound to considerthe same. [Para 39][324-C-D]

B2. As seen from the pleadings, the type of jurisdictionalissue, raised in the cases on hand, is one of territorial jurisdiction.The answer to this depends upon facts to be established byevidence. The facts to be established by evidence, may relateeither to the place of commission of the offence or to other thingsdealt with by Sections 177 to 184 of the Code. In suchCcircumstances, this Court cannot order transfer, on the groundof lack of territorial jurisdiction, even before evidence ismarshaled. [Para 41][324-E-F]

Abhiram Veer v. North Eastern Regional AgriculturalMarketing Corporation Ltd. (2000) 10 SCC 433; AsitDBhattacharjee v. Hanuman Prasad Ojha & Ors. (2007)5 SCC 786 : [2007] 6 SCR 939; State of Uttar Pradeshv. Sabir Ali AIR 1964 SC 1673 : [1964] 7 SCR 435;Ramnath Sardar v. Rekharani Sardar (1975) CriminalLaw Journal 1139; Raj Kumari Vijh v. Dev Raj VijhEAIR 1977 SC 1101 : [1977] 2 SCR 997; PurushottamDas Dalmia v. State of West Bengal AIR 1961 SC 1589:[1962] 2 SCR 101 – referred to.

Case Law Reference

Petition filed under S.406 of the code of Criminal Procedure, 1973r/w of Supreme Court Rules 2013 For Transfer of case being F.I.R. No.452 Dated 14.09.2018.H

With

Transfer Petition (CRL.) Nos. 666 and 681 of 2019

Deepak Thukral, AAG, Vikas Singh, Neeraj Kishan Kaul, Sr. Advs,Ms. Nandadevi Deka, Vikas Sharma, Bharat Bhushan, Ms. Divya Sharma,Mritunjay Singh, Ms. Aakanksha Kaul, Ms. Garima Bajaj, Varun Mathur,Akash Lamba, Sansakar Aggarwal, Manek Singh, Dr. Monika Gusain,Rajat Bhardwaj, Advs. for the appearing parties.

The following Judgment of the Court was delivered:

JUDGMENT

1. Seeking transfer of three criminal cases, all pending on the fileof the Court of the Additional Judicial Magistrate, Gurugram, Haryana,to any competent Court in New Delhi, a person who is implicated as oneof the accused in those three cases has come up with the above transferpetitions.

2. I have heard Mr. Vikas Singh, learned Senior Counsel appearingfor the petitioner, Mr. Deepak Thukral, learned counsel appearing forthe State of Haryana and Mr. Neeraj Kishan Kaul, learned Senior Counselappearing for the de facto complainant, who is the second respondentherein.

3. The petitioner herein was appointed on 04.08.2016 as the GroupChief Risk Officer-Executive Director of the second respondent, whichis a non-banking finance company and which happens to be the de factocomplainant in the criminal cases whose transfer is what is sought inthese petitions. It is relevant to note that the petitioner, upon hisappointment, joined the Delhi Office of the second respondent-Companyon 04.08.2016 and he was transferred to Mumbai on 10.04.2017. Thepetitioner resigned in July-2018.

4. Three loans sanctioned by the second respondent-Company,during the period when the petitioner was in service, became the subject-matter of three different complaints lodged by the second respondent-Company. All the three complaints were lodged by the second respondentwith the Station House Officer, Civil Lines, Gurugram P.S. For the purposeof easy appreciation, the particulars of the loan and the borrower, aswell as the particulars of the FIR are given in the tabular column asfollows:

A

B

C

D

EF

G

H

A

B

C

5. After completion of investigation, the police filed a charge-sheet on 14.12.2018 in FIR No.452/18, for alleged offences under SectionsD406, 408, 420, 120-B read with Section 34 of the Indian Penal Code(hereinafter referred to as the “IPC”).

6. Similarly, a charge-sheet was filed on 18.07.2019 in FIR No.748of 2017 for alleged offences under Sections 114, 120-B, 406, 420, 467,468, 471 and 216 of the IPC. Likewise a charge-sheet was filed onE24.10.2019 in FIR No.356/2019 for offences under Sections 120-B, 406,408, 420, 387 read with Section 34 of the IPC.

7. The police also filed supplementary charge-sheets, on 06.01.2020in the first case and on 08.11.2019 in the third case.

F8. Contending (i) that no part of the cause of action arose inGurugram to enable the de facto complainant to lodge a complaint in theGurugram Police Station; (ii) that while first loan was sanctioned atDelhi, the second loan was sanctioned at Indore and third loan wassanctioned at Surat, nothing happened in Gurugram, entitling the de factocomplainant to invoke the jurisdiction of the investigating agency and theGCourt in Gurugram; (iii) that the second respondent-de facto complainanthas deliberately filed the complaint at Gurugram, as the promoter of thede facto complainant wields lot of influence at Gurugram and (iv) thatthe petitioner will not get a fair trial at Gurugram, the petitioner hascome up with the above transfer petitions.

H

9. Thus, in effect, transfer is sought primarily on 2 grounds namely(i) lack of territorial jurisdiction and (ii) apprehension of bias.

10. But Mr. Vikas Singh, learned Senior Counsel for the petitionerdid not press into service the second ground, revolving around theallegation that the second respondent wields a lot of influence locally inGurugram and that the petitioner will not get a fair trial. This saves meof the botheration to bring on record the transcript of certain whatsappmessages filed before me as part of the paper book.

11. Mr. Vikas Singh, learned Senior Counsel, took me through theloan agreements under which the second respondent-Companysanctioned the subject loans and argued that in all the three loanagreements, the place of execution of the agreement, the Branch officeof the lender and the address of the borrower are indicated. For instance,the loan agreement dated 26.10.2016 under which facilities were extendedto Zillion Infraprojects Private Limited (which forms the subject-matterof FIR No.452/2018), the place of execution of agreement and the addressof the Branch Office of the lender are indicated to be at Delhi. Theaddress of the borrower as well as the Co-borrower are also stated tobe in Delhi. The branch of the bank on which the cheque for the loanamount was drawn was also in Delhi.

12. Similarly the loan agreement under which facilities wereextended to Hotel M.S. (which forms the subject matter of the thirdFIR) indicates the place of agreement and Branch Office of the lenderto be Indore. The address of the borrower is also stated therein to be inIndore. The address of the lender is indicated to be in Bombay.

13. Insofar as the loan agreement under which facilities wereextended to Al Fatah Tours and Travels (forming the subject matter ofsecond FIR) is concerned, the place of the agreement and the BranchOffice of the lender are stated to be at Surat. The address of the borroweris indicated to be in Surat and the address of the lender is stated to be inMumbai.

14. Therefore, it was contended by Mr. Vikas Singh, learned SeniorCounsel for the petitioner that the entire cause of action in respect ofone case arose in Delhi, the entire cause of action for the second casearose in Indore and the entire cause of action for the third case arose inSurat. It is also contended by him that the de facto complainant did noteven have an office at Gurugram and that the second respondent is AB

C

D

E

F

G

H

Aguilty of perjury by claiming even before this Court, as though they havean office in Gurugram. The petitioner has also taken out an applicationunder Section 340 of the Code of Criminal Procedure for prosecutingthe officials of the second respondent for committing perjury throughtheir claim that the second respondent has an office at Gurugram.

B15. Mr. Neeraj Kishan Kaul, learned Senior Counsel appearingfor the second respondent contended that the question whether any partof the cause of action arose within the local limits of jurisdiction of theCourts in Gurugram, is a question of fact to be established by evidenceand that the same cannot be gone into in the transfer petitions. In supportof this proposition, he relied upon the decision of this Court in AbhiramCVeer Vs. North Eastern Regional Agricultural MarketingCorporation Ltd.[1] He also contended that insofar as the loan granted toZillion Infraprojects limited is concerned, the property offered as securityis located in Gurugram and that the second respondent was actuallysharing the office space of a company which is a 100% subsidiary of theDsecond respondent. Therefore, it is his contention that no wrong statementwas ever made. It is further contended that the borrowers who are alsothe prime accused in these cases have not sought a transfer and thattherefore the petitioner is not entitled to seek transfer.

16. The learned Standing Counsel for the State of Haryanasupplemented the arguments of the learned Senior Counsel for the secondErespondent and relied upon the decision of this Court in AsitBhattacharjee Vs. Hanuman Prasad Ojha &Ors.[2]

17. I have carefully considered the rival contentions.

18. As seen from the pleadings and the rival contentions, theFpetitioner seeks transfer, primarily on the ground of lack of territorialjurisdiction. While the question of territorial jurisdiction in civil cases,revolves mainly around (i) cause of action; or (ii) location of the subjectmatter of the suit or (iii) the residence of the defendant etc., accordingas the case may be, the question of territorial jurisdiction in criminalCases revolves around (i) place of commission of the offence or (ii)Gplace where the consequence of an act, both of which constitute anoffence, ensues or (iii) place where the accused was found or (iv) placewhere the victim was found or (v) place where the property in respectof which the offence was committed, was found or (vi) place where the 1 2000 (10) SCC 433.H2 2007 (5) SCC 786

property forming the subject matter of an offence was required to bereturned or accounted for, etc., according as the case may be.

19. While jurisdiction of a civil court is determined by(i) territorialand (ii) pecuniary limits, the jurisdiction of a criminal court is determinedby (i) the offence and/or (ii) the offender. But the main difference betweenthe question of jurisdiction raised in civil cases and the question ofjurisdiction arising in criminal cases, is two-fold.

(i) The first is that the stage at which an objection as tojurisdiction, territorial or pecuniary, can be raised, is regulated incivil proceedings by Section 21 of the Code of Civil Procedure, 1908.There is no provision in the Criminal Procedure Code akin to Section 21of the Code of Civil Procedure.

(ii) The second is that in civil proceedings, a plaint can be returned,under Order VII, Rule 10, CPC,to be presented to the proper court, atany stage of the proceedings. But in criminal proceedings, a limitedpower is available to a Magistrate under Section 201 of the Code, toreturn a complaint. The power is limited in the sense (a) that it isavailable before taking cognizance, as Section 201 uses the words“Magistrate who is not competent to take cognizance”and (b) thatthe power is limited only to complaints, as the word “complaint”, asdefined by section 2(d), does not include a “police report”.

20. Chapter XIII of the Code of Criminal Procedure, 1973 containsprovisions relating to jurisdiction of criminal Courts in inquiries and trials.The Code maintains a distinction between (i) inquiry; (ii) investigation;and (iii) trial. The words “inquiry” and “investigation” are definedrespectively in clauses (g) and (h) of Section 2 of the Code.

21. The principles laid down in Sections 177 to 184 of the Code(contained in Chapter XIII) regarding the jurisdiction of criminal Courtsin inquiries and trials can be summarized in simple terms as follows:

(1) Every offence should ordinarily be inquired into and tried by aCourt within whose local jurisdiction it was committed. This rule is foundin Section 177. The expression “local jurisdiction” found in Section177 is defined in Section 2(j) to mean “in relation to a Court or Magistrate,the local area within which the Court or Magistrate may exercise all orany of its or his powers under the Code”

(2) In case of uncertainty about the place in which, among theseveral local areas, an offence was committed, the Court having ABC

D

E

F

G

H

Ajurisdiction over any of such local areas may inquire into or try such anoffence.

(3) Where an offence is committed partly in one area and partlyin another, it may be inquired into or tried by a Court having jurisdictionover any of such local areas.

B

(4) In the case of a continuing offence which is committed inmore local areas than one, it may be inquired into or tried by a Courthaving jurisdiction over any of such local areas.

(5) Where an offence consists of several acts done in differentlocal areas it may be inquired into or tried by a Court having jurisdictionCover any of such local areas. (Numbers 2 to 5 are traceable to Section178)

(6) Where something is an offence by reason of the act done, aswell as the consequence that ensued, then the offence may be inquiredinto or tried by a Court within whose local jurisdiction either the act wasDdone or the consequence ensued. (Section 179)

(7) In cases where an act is an offence, by reason of its relationto any other act which is also an offence, then the first mentioned offencemay be inquired into or tried by a Court within whose local jurisdictioneither of the acts was done. (Section 180)

E

(8) In certain cases such as dacoity, dacoity with murder, escapingfrom custody etc., the offence may be inquired into and tried by a Courtwithin whose local jurisdiction either the offence was committed or theaccused person was found.

(9) In the case of an offence of kidnapping or abduction, it mayFbe inquired into or tried by a Court within whose local jurisdiction theperson was kidnapped or conveyed or concealed or detained.

(10) The offences of theft, extortion or robbery may be inquiredinto or tried by a Court within whose local jurisdiction, the offence wascommitted or the stolen property was possessed, received or retained.G

(11) An offence of criminal misappropriation or criminal breachof trust may be inquired into or tried by a Court within whose localjurisdiction the offence was committed or any part of the property wasreceived or retained or was required to be returned or accounted for bythe accused person.H

(12) An offence which includes the possession of stolen property,may be inquired into or tried by a Court within whose local jurisdictionthe offence was committed or the stolen property was possessed by anyperson, having knowledge that it is stolen property. (Nos. 8 to 12 arefound in Section 181)

(13) An offence which includes cheating, if committed by meansof letters or telecommunication messages, may be inquired into or triedby any Court within whose local jurisdiction such letters or messageswere sent or received.

(14) An offence of cheating and dishonestly inducing delivery ofthe property may be inquired into or tried by a Court within whose localjurisdiction the property was delivered by the person deceived or wasreceived by the accused person.

(15) Some offences relating to marriage such as Section 494,IPC (marrying again during the life time of husband or wife) and Section495, IPC (committing the offence under Section 494 with concealmentof former marriage) may be inquired into or tried by a Court withinwhose local jurisdiction the offence was committed or the offender lastresided with the spouse by the first marriage. (Nos. 13 to 15 are foundin Section 182)

(16) An offence committed in the course of a journey or voyagemay be inquired into or tried by a Court through or into whose localjurisdiction that person or thing passed in the course of that journey orvoyage. (Section 183).

(17) Cases falling under Section 219 (three offences of the samekind committed within a space of twelve months whether in respectof the same person or not), cases falling under Section 220 (commissionof more offences than one, in one series of acts committed together asto form the same transaction) and cases falling under Section 221, (whereit is doubtful what offences have been committed), may be inquired intoor tried by any Court competent to inquire into or try any of the offences.(Section 184).

21. Apart from Sections 177 to 184, which lay down in elaboratedetail, the rules relating to jurisdiction, Chapter XIII of the Code alsocontains a few other sections. Section 185 empowers the StateGovernment to order any case or class of cases committed for trial inany district, to be tried in any Sessions division. Section 186 empowers A

B

C

D

E

F

G

H

Athe High Court, in case where 2 or more courts have taken cognizanceof the same offence and a question as to which of them should inquireinto or try the offence has arisen, to decide the district where the inquiryor trial shall take place. Section 187 speaks of the powers of theMagistrate, in case where a person within his local jurisdiction, hascommitted an offence outside his jurisdiction, but the same cannot beBinquired into or tried within such jurisdiction. Sections 188 and 189 dealwith offences committed outside India.

22. After laying down in such great detail, the rules relating toterritorial jurisdiction in Chapter XIII, the Code of Criminal Proceduremakes provisions in Chapter XXXV, as to the fate of irregular proceedings.CIt is in that Chapter XXXV that one has to search for an answer to thequestion as to what happens when a court which has no territorialjurisdiction, inquires or tries an offence.

23. Section 460 lists out 9 irregularities, which, if done in goodfaith by the Magistrate, may not vitiate his proceedings. Section 461 listsDout 17 irregularities, which if done by the Magistrate, will make the wholeproceedings void. Clause (l) of section 461 is of significance and it readsas follows:- “If any Magistrate, not being empowered by law in this behalf,does any of the following things, namely:- E—————

(l) tries an offender:

—————

his proceedings shall be void”F24. Then comes Section 462, which saves the proceedings thathad taken place in a wrong sessions division or district or local area. Butthis is subject to the condition that no failure of justice has occasioned onaccount of the mistake. Section 462 reads as follows:

“462. Proceedings in wrong place. –

No finding, sentence or order of any Criminal Court shall beset aside merely on the ground that the inquiry, trial or otherproceedings in the course of which it was arrived at or passed,took place in a wrong sessions division, district, sub- divisionor other local area, unless it appears that such error has in G

fact occasioned a failure of justice.”H

25. A cursory reading of Section 461(l) and Section 462 gives animpression that there is some incongruity. Under Clause (l) of Section461 if a Magistrate not being empowered by law to try an offender,wrongly tries him, his proceedings shall be void. A proceeding which isvoid under Section 461 cannot be saved by Section 462. The focusof clause (l) of Section 461 is on the “offender” and not on the “offence”.If clause (l) had used the words “tries an offence” rather than the words“tries an offender”, the consequence might have been different.

26. It is significant to note that Section 460, which lists out nineirregularities that would not vitiate the proceedings, uses the word“offence” in three places namely clauses (b), (d) and (e). Section 460does not use the word “offender” even once.

27. On the contrary Section 461 uses the word ‘offence’ onlyonce, namely in clause (a), but uses the word “offender” twice namelyin clauses (l) and (m). Therefore, it is clear that if an offender is tried bya Magistrate not empowered by law in that behalf, his proceedings shallbe void under Section 461. Section 462 does not make the principlecontained therein to have force notwithstanding anything contained inSection 461.

28. Section 26 of the Code divides offences into two categoriesnamely (i) offences under IPC and (ii) offences under any other speciallaw. Insofar as offences under the IPC are concerned, Clause (a) ofSection 26 states that they may be tried by (i) the High Court or (ii) theCourt of Session or (iii) any other Court, by which such offence is shownin the first Schedule to be triable. In respect of offences under any otherlaw, clause (b) of Section 26 states that they shall be tried by the Courtspecifically mentioned in such special law. In case the special law issilent about the Court by which it can be tried, then such an offence maybe tried either by the High Court or by any other Court by which suchoffence is shown in the first schedule to be triable.

29. But Clause (a) of Section 26 makes the provisions containedtherein, subject to the other provisions of the Code. Therefore, a questionarose before this Court in the State of Uttar Pradesh Vs. Sabir Ali[3] asto whether a conviction and punishment handed over by a Magistrate offirst class for an offence under the Uttar Pradesh Private Forest Act,1948 were void, in the light of Section 15(2) of the Special Act. Section AB

C

D

E

F

G

H

A15(2) of Uttar Pradesh Private Forest Act made the offences under theAct triable only by a Magistrate of second or third class. Though theentire trial in that case took place before a Magistrate of second class,he was conferred with the powers of a Magistrate of first class, beforehe pronounced the Judgment. This Court held that the proceedings werevoid under Section 530(p) of the Code of Criminal Procedure, 1898 (asBit stood at that time). It is relevant to note that Section 461(l) of theCode of 1973 is in pari materia with Section 530(p) of the Code of1898.

30. What is now clause (a) of Section 26 of the Code of 1973, iswhat was Section 28 of the Code of 1898. The only difference betweenCthe two is that Section 28 of the Code of 1898 referred to the eighthcolumn of the second schedule, but Section 26(a) of the Code of 1973refers to the first schedule.

31. Similarly, clause (b) of Section 26 of the Code of 1973 isnothing but what was Section 29 of the Code of 1898.D

32. What is significant to note from the Code of 1898 and theCode of 1973 is that the question of jurisdiction dealt with by Sections 28and 29 of the Code of 1898 and Section 26 of the Code of 1973, isrelatable only to the offence and not to the offender. The power of aCourt to try an offence is directly governed by Clauses (a) and (b) ofESection 26 of the Code of 1973, as it was governed by Sections 28 and29 of the Code of 1898.

33. In other words, the jurisdiction of a criminal Court is normallyrelatable to the offence and in some cases, to the offender, such ascases where the offender is a juvenile (section 27) or where the victimFis a women [the proviso to clause (a) of section 26]. But Section 461(l)focuses on the offender and not on the offence.

34. The saving clause contained in Section 462 of the Code of1973 is in pari materia with Section 531 of the Code of 1898. In thelight of Section 531 of the Code of 1898, a question arose before theGCalcutta High Court in Ramnath Sardar Vs. Rekharani Sardar[4], asto the stage at which an objection to the territorial jurisdiction of thecourt could be raised and considered. In that case, the objection to theterritorial jurisdiction raised before a Magistrate in a petition for maintenance filed by the wife against the husband, was rejected by theMagistrate both on merits and on the basis of the saving clause in Section531. But the High Court held that Section 531 would apply only after thedecision or finding or order is arrived at by any Magistrate or Court in awrong jurisdiction and that if any objection to the territorial jurisdiction istaken in any proceeding, it would be the duty of the Magistrate to dealwith the same.

35. In Raj Kumari Vijh Vs. Dev Raj Vijh[5], which also arose outof a case filed by the wife for maintenance against the husband, theMagistrate rejected a prayer for deciding the question of jurisdictionbefore recording the evidence. Actually the Magistrate passed an orderholding that the question of jurisdiction must await the recording of theevidence on the whole case. Ultimately the Magistrate held that he hadjurisdiction to entertain the application. One of the reasons why he cameto the said conclusion was that in the reply filed by the husband therewas no specific denial of the wife’s allegation that the parties last residedtogether within his jurisdiction. When the matter eventually reached thisCourt, this Court relied upon the decision in Purushottam Das DalmiaVs. State of West Bengal[6] to point out that there are two types ofjurisdictional issues for a criminal Court namely (i) the jurisdiction withrespect of the power of the Court to try particular kinds of offences and(ii) its territorial jurisdiction.

36. It was specifically held by this Court in Raj Kumari Vijh(supra) that the question of jurisdiction with respect to the power of theCourt to try particular kinds of offences goes to the root of the matterand that any transgression of the same would make the entire trial void.However, territorial jurisdiction, according to this Court “is a matter ofconvenience, keeping in mind the administrative point of view with respectto the work of a particular court, the convenience of the accused andthe convenience of the witnesses who have to appear before the Court.”

37. After making such a distinction between two different typesof jurisdictional issues, this Court concluded in that case, that where aMagistrate has the power to try a particular offence, but the controversyrelates solely to his territorial jurisdiction, the case would normally becovered by the saving clause under Section 531 of the Code of 1898(present Section 462 of the Code of 1973).

5 AIR 1977 SC 1101

6 AIR 1961 SC 1589

AB

C

D

E

F

G

H

A

A38. From the above discussion, it is possible to take a view thatthe words “tries an offence” are more appropriate than the words “triesan offender” in section 461 (l). This is because, lack of jurisdiction to tryan offence cannot be cured by section 462 and hence section 461,logically, could have includedthe trial of an offence by a Magistrate,not empowered by law to do so,as one of the several items which makeBthe proceedings void.In contrast, the trial of an offender by a courtwhich does not have territorial jurisdiction, can be saved because ofsection 462, provided there is no other bar for the court to try the saidoffender (such as in section 27). But Section 461 (l) makes the proceedingsof a Magistrate void, if he tried an offender, when not empowered byClaw to do.

39. But be that as it may, the upshot of the above discussion is (i)that the issue of jurisdiction of a court to try an “offence” or “offender”as well as the issue of territorial jurisdiction, depend upon facts establishedthrough evidence (ii) that if the issue is one of territorial jurisdiction, theDsame has to be decided with respect to the various rules enunciated insections 177 to 184 of the Code and (iii) that these questions may haveto be raised before the court trying the offence and such court is boundto consider the same.

40. Having taken note of the legal position, let me now come backEto the cases on hand.

41. As seen from the pleadings, the type of jurisdictional issue,raised in the cases on hand,is one of territorial jurisdiction, atleast as ofnow. The answer to this depends upon facts to be established by evidence.The facts to be established by evidence, may relate either to the place ofFcommission of the offence or to other things dealt with by Sections 177to 184 of the Code. In such circumstances, this Court cannot ordertransfer,on the ground of lack of territorial jurisdiction, even beforeevidence is marshaled. Hence the transfer petitions are liable to bedismissed. Accordingly, they are dismissed.

G42. However, it is open to both parties to raise the issue of territorialjurisdiction, lead evidence on questions of fact that may fall within thepurview of Sections 177 to 184 read with Section 26 of the Code andinvite a finding. With the above observations the transfer petitions aredismissed. There will be no order as to costs.

HAnkit Gyan

Transfer Petitions dismissed.