Mohd. Yasir vs State of U.P. and Another

Hon''ble Rajesh Dayal Khare, J.—Heard Learned Counsel the applicant, Sri Anurag Khanna, Learned Counsel who has put in appearance on behalf of opposite party no. 2 and learned A.G.A. for the state. It is also contended that an application has been moved on behalf of the applicant on the ground that alleged offence is said to have been committed at Allahabad and designated CBI court at Lucknow not only caters to districts falling within the territorial jurisdiction of Lucknow Bench of the Allahabad High Court but also to the districts falling within the territorial jurisdiction of the Principal seat of the High Court at Allahabad and merely because CBI has investigated the matter and submitted charge-sheet before the designated CBI court at Lucknow, it would not oust the jurisdiction of Principal Bench of Allahabad and he prays that the said application may be allowed.

It is contended on behalf of the applicants that the alleged offence is said to have been committed at Allahabad thereafter, charge-sheet has been filed before the designated CBI court at Lucknow. It is further contended that as per the settled law laid down by Hon''ble Apex Court in the Full Court judgment rendered in the matter of Sri Nasiruddin Vs. State Transport Appellate Tribunal, , in which Hon''ble Apex Court has categorically held that criminal case arises where the offence has been committed or otherwise as provided in the Criminal Procedure Code, that will attract the jurisdiction of the Court at Allahabad or Lucknow. In some other cases depending on the facts and the provision regarding jurisdiction, it may arise in either place.

Learned Counsel for the applicants has contended that majority view of the Full Bench judgment dated 17.12.1971 of Allahabad High Court rendered in the matter of Nirmal Dass Khaturia and Others Vs. The State Transport (Appellate) Tribunal, U.P., Lucknow and Others, had held that the expression " in respect of cases arising in such areas in Oudh" used in the first proviso to Article 14 of the High Court (Amalgamation) Order, 1948, refers to legal proceedings including civil cases, criminal cases, petitions under Articles 226, 227 and 228 of the Constitution and petitions Articles 132, 133 and 134 of the Constitution instituted before the Judges sitting at Lucknow and having their origin, in the sense explained in the majority judgment in such areas in Oudh as the Chief Justice may direct. The expression "arising in such areas in Oudh" refers to the place where the case originated in the sense explained in the majority judgment and not to the place sitting of the last Court or authority whose decree or order is being challenged in the proceeding before the High Court. It is next contended that there are two designated CBI court, one sitting at Lucknow and other at Ghaziabad and how cases are filed before either of two designated CBI court is to be answered by the Learned Counsel appearing for the opposite party no. 1 inasmuch as for certain districts the cases investigated by the CBI are being filed at Lucknow and for other districts the cases are being filed before designated CBI court at Ghaziabad but basis of classification is not clear. It is further contended that there are cases in which appellate authority sits at Lucknow and after passing the order by the appellate authority, further proceedings by way of writ or other proceedings are filed before the High Court in relation to the Districts to which petitioner/applicant belongs and where cause of action has arisen. It cannot be argued that as appellate authority had passed the order at Lucknow, therefore, jurisdiction of Principal Bench at Allahabad High Court stand ousted. Similarly in the present case, as the alleged incident had taken place at Allahabad, merely because CBI conducted the investigation and filed charge-sheet before the designated CBI court at Lucknow, it would not oust the jurisdiction of Principal Bench of Allahabad High Court.

It is argued by the Learned Counsel for the applicants that although the Hon''ble Apex Court, in the matter of Nasiruddin (Supra), was not dealing with any criminal matter but had specifically held regarding jurisdiction with regard to criminal matter and has in clear terms held that criminal case will arise where the offence is committed. It is also argued that Hon''ble Apex Court has not dealt with the question regarding cause of action relating to criminal court but has categorically stated that criminal case shall arise where the offence has been committed, thus, in view of the aforesaid judgment of Hon''ble Apex Court, the Court at Allahabad will have jurisdiction in the present case.

Learned Counsel for the applicant has also referred a judgment of Division Bench of this Court in the matter of Sanjay Somani and others Vs. State of U.P. and others, reported in XLIV 2002 ACC 894 and has argued that reference, which was made in the said case to a larger Bench by the Single Judge was whether the territorial jurisdiction of the appellate and revisional Court is to be determined under the Cr.P.C. by the location of the Court, which has passed the impugned order or by the place where the offence was committed? The Division Bench answered the question holding that location of the criminal court, will be determinative of the fact whether the challenge to the orders passed by it can be entertained by the principal seat at Allahabad or the Lucknow Bench of the Allahabad High Court and the place of commission of offence is not relevant. It is, thus, argued that that Division Bench of this Court although has referred to the judgment of Hon''ble Apex Court in the case of Nasiruddin (Supra) but has failed to take note of the fact that Hon''ble Apex while dealing with the matter, which was not related to any criminal case, had gone to the extent of holding that criminal case arises where offence has been committed. It is, thus, argued that the judgment of Division Bench of this Court in the matter of Sanjay Somani (Supra) is contrary to the view taken by the Hon''ble Apex Court in the matter of Nasiruddin (Supra). It is also argued that as alleged offence is said to have been committed at Allahabad and charge-sheet has been filed before designated CBI court at Lucknow, would not oust the jurisdiction of principal Bench of Allahabad High Court and at the best it can be said that the petition can be filed at either of the places, therefore, the applicants had filed petition before the principal Bench of Allahabad High Court.

Sri Anurag Khanna, Learned Counsel for the opposite party no. 1 has contended that Division Bench of this Court has categorically answered the matter in the case of Sanjay Somani (Supra) that the place of commission of offence would not be relevant and the determining factor would be whether the challenge to the orders passed by it, can be entertained by the principal seat at Allahabad or Lucknow Bench of the Allahabad High Court, therefore, the present case is squarely covered by the Division Bench judgment and thus, the present application is not maintainable before the principal seat at Allahabad High Court and has to be necessarily filed before Lucknow Bench of Allahabad High Court.

Sri Khanna, Learned Counsel for the opposite party no. 1 has further argued that the judgment of Division Bench of this Court has to be necessarily followed by the Single Judge, therefore, in view of the aforesaid, the present application cannot be entertained at Allahabad.

The Constitution Bench of the Hon''ble Apex Court in the matter of Nasiruddin (Supra), has examined the correctness of judgment of Full Bench of this Court reported in Nirmal Dass Khaturia and Others Vs. The State Transport (Appellate) Tribunal, U.P., Lucknow and Others, , in which the question arose regarding grant of permits under the provisions of Motor Vehicles Act, 1939 by the Regional Transport Authority, Bareilly. Against the resolution of the RTA, appeals were preferred before the State Transport Appellate Tribunal, Lucknow and against the orders passed by the Appellate Tribunal, writ petitions were filed before the Lucknow Bench. The question, which was agitated was that as the cause of action arose at Bareilly and inspite of the fact that the appeals had been disposed of by the Appellate Tribunal at Lucknow and consequently as to whether the writ petitions could have been entertained by the Lucknow Bench. It was held that Lucknow Bench had territorial jurisdiction over 12 districts, which did not include Bareilly. Thus, the Court held that it was immaterial that the original order had originated from Bareilly and as the appeal was decided by the Appellate Tribunal at Lucknow, it cannot be said that the cause of action had not partly arisen within the territorial jurisdiction of the Lucknow Bench. The Court further held that if the cause of action arises in part within the specified areas in Oudh, it would be open to the litigant who is the dominus litis to have his forum conveniens. The litigant has the right to go to a Court where part of his cause of action arises. In such cases it is incorrect to say that the litigant chooses any particular Court. The choice is by reason of the jurisdiction of the Court being attracted by part of cause of action arising within the jurisdiction of the Court. Similarly, if the cause of action can be said to have arisen partly within specified areas in Oudh and partly outside the specified Oudh areas, the litigant will have the choice to institute proceedings either at Allahabad or Lucknow.

The Hon''ble Supreme Court had further held that in terms of Clause 14 of the Amalgamation Order, once the Hon''ble Chief Justice had exercise the power fixing the territorial jurisdiction, no further order can be passed in this respect, as the order had to be determined only once and there was no scope for changing the same. However, Hon''ble the Chief Justice had the power under proviso to the said Clause to direct, in his discretion, that any case or class of cases arising in Oudh areas shall be heard at Allahabad, but in a case where cause of action partly arisen within the jurisdiction of Principal Bench at Allahabad, it must be left to the choice of litigants to institute the case either at Lucknow or Allahabad. A similar view was taken by the Division Bench of this Court in the judgment rendered in the matter of Registrar of Companies, U.P. and Uttaranchal, Kanpur Vs. M/s Kamal Infosys Ltd. and others, decided on 14.3.2005 (Company Petition No. 57 of 2001).

In view of the above, this Court is of the opinion that as the alleged offence is said to have been committed at Allahabad, investigation of which was conducted by CBI, who filed the charge-sheet before the designated CBI court at Lucknow, would not oust the jurisdiction of Principal Bench of High Court at Allahabad and same is to be left open to the litigants to file his case either at Allahabad or at Lucknow as litigants being domnus litus have the right to have their forum conveniens. The said question is, accordingly, answered. Learned Counsel for the applicant has limited his prayer to the extent that he may be permitted to file an application for grant of bail, which may be directed to be considered and decided on the same day, in criminal case no. 138 of 1998, in case crime no. 259 of 1995, under Sections 147, 148, 149, 353, 333, 307, 302, 120-B IPC, issued by the Special Judge, Anti-Corruption, (CBI), Lucknow.

From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said no offence is made out against the applicant. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court u/s 482 Cr.P.C. At this stage only prima facie case it to be seen.

The prayer for quashing the non bailable warrant order is refused.

However, it is provided that if the applicant appears and surrenders before the court below within 30 days from today and applies for bail, then his prayer for bail shall be considered in view of the settled law laid by the Seven Judges'' decision of this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon''ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him. With the aforesaid directions, this application is finally disposed of.