Sanjay Somani and Others vs State of U.P. and Others

G.P. Mathur, J.—This matter has come before us on a reference made by a learned single Judge.

The Chief Manager, Allahabad Bank lodged an F.I.R. against the Petitioners and some others on 25.2.1994 under Sections 420, 467, 468, 471, 120B, Indian Penal Code and Section 13(1)(d) of the Prevention of Corruption Act, at P. S. Pheelkhana, Kanpur Nagar. The case was investigated by C.B.I. and a charge-sheet was submitted in the Court of Special Judge (Anti-Corruption) Central U. P., Lucknow. At the stage of framing of the charge, the Petitioners moved an application on 28.9.1999 for summoning certain documents, which was rejected by the Special Judge by the order dated 17.4.2001. A second application moved for similar purpose on 19.5.2001 was also rejected on 17.8.2001. The present petition u/s 482, Criminal Procedure Code has been filed for quashing of the order dated 17.8.2001 and for issuing a direction to the Special Judge to summon the documents mentioned in the application moved by the Petitioners.

Central Bureau of Investi-gation (C.B.I.) has been constituted under the Delhi Special Police Establishment Act, 1946. The State Government in exercise of power conferred by Section 178 of Code of Criminal Procedure (V of 1898) issued a notification on 5.10.1951 directing that all Special Police Establishment cases committed to the Court of Sessions in any district in U. P. Shall be tried in Lucknow Sessions division. Exercising power u/s 193(2) of the same Code, it was further directed that the Sessions Judge, Lucknow, as Additional Sessions Judge of other sessions division in U. P. shall try such cases. The first part of Section 178 of 1898 Code is similar to the part first of Section 185 of 1973 Code. Section 193(2) of 1898 Code provided that Additional Sessions Judge and Assistant Sessions Judges shall try only such cases as the State Government may by general or special order direct them to try or as the Sessions Judge of the division by general or special order may make over to them for trial. Subsequently, another notification was issued whereunder more Courts of Special Judges were created for trial of cases wherein charge-sheets had been submitted by the Special Police Establishment (C.B.I.) under the Delhi Special Police Establishment Act, 1946. It is in these circumstances that the charge-sheet in the present case has been submitted before the Special Judge (Anti-corruption), Lucknow though the offence was committed in Kanpur Nagar.

When the petition was taken up for admission hearing, an objection was raised on behalf of the C.B.I. (Respondent No. 2) that as the Petitioners seek quashing of order passed by a criminal court (Sessions Judge) at Lucknow, the petition could not be entertained by the principal seat of the High Court at Allahabad. The Petitioners on the authority of a decision by a single Judge of this Court in Maya Shankar Pandey v. State of U. P. 1997 ACC 871, urged that the petition was maintainable at Allahabad as the offence had been committed in Kanpur Nagar. Doubting the correctness of the said decision, the learned single Judge referred the following question for decision by a larger Bench:

Whether the territorial jurisdiction of the appellate and revisional court is to be determined under the Criminal Procedure Code by the location of the Court which has passed the impugned order or by the place where the offence was committed?

As mentioned earlier, the offence for which the Petitioners are being prosecuted was committed in Kanpur Nagar which falls within the territorial jurisdiction of the principal seat of the High Court at Allahabad, but they are being tried in the Court of Special Judge (Anti-corruption), Lucknow, and seek quashing of an order passed by the said Court which falls within the territorial jurisdiction of the Lucknow Bench of the Allahabad High Court. The question has, therefore, to be answered in the light of the United Provinces High Courts (Amalga-mation) Order, 1948 (hereinafter referred to as the Amalgamation Order). This order was issued to amalgamate the High Court in Allahabad and the Chief Court in Oudh. The history and the constitution of these Courts has been given in detail in U.P. Rashtriya Chini Mill Adhikari Parishad and Ors. v. State of U.P. and Ors. 1994 (12) LCD 1026, and it will be useful to reproduce paragraphs 8 to 17 of the Reports:

Our Temple of Justice was consecrated in 1866 under a Royal Charter issued by the Queen Victoria, the British Sovereign, with the nomenclature High Court of Judicature for the North Western Provinces at Agra under Letters patent of the 17th March, 1866. The day was 18th June, 1866, making the birth of our Court. On that historic day, six Judges the entire complement of the Court-quietly walked in, took their seats and began the day''s work as if totally oblivious of the great transition from the Sadar Diwany Adalat and Sadar Nazamat Adalat to a High Court. The Indian High Courts Act, 1861, enacted by the British Parliament, gave to the Crown the authority to establish High Courts at Calcutta, Madras, Bombay and at one other place. In the year 1868, High Court was shifted from Agra to Allahabad and later came to be known as High Court of Judicature at Allahabad.

In 1834, the Upper Provinces were separated from the Bengal Presidency to be governed by the newly constituted Agra Presidency with its headquarters at Allahabad Fort, but in 1836 the Presidency was superseded by a Lt. Governorship of the North-Western Provinces with headquarters at Agra. In 1858, the headquarters of the Government were again shifted to Allahabad.

Avadh, after its annexation in 1856, had been placed under a Chief Commissioner but in 1877, it also came under the jurisdiction of the Lt. Governor and the whole territory was named as ''North-Western Provinces and Avadh''. This area was named as ''United Provinces of Agra and Avadh'' in 1902. In 1921, after the implementation of Indian Constitutional Reforms, the area came under the jurisdiction of a Governor. A Legislative Council was formed at Lucknow in 1921 after the elections of 1920 and the seat of the Government was shifted from Allahabad to Lucknow in the same year. The shifting of the Secretariat from Allahabad to Lucknow was complete by 1935 making Lucknow the capital of the State. The Province was named ''United Provinces'' in 1937 and subsequently from 26 January, 1950, its name has been changed to "Uttar Pradesh" (see, A Guide to the Records in the U. P. State Archives, pages 6 and 7).

In 1834, Allahabad was made the seat of Government of the North-Western Province.

In February 1858, Lord Canning announced the formation of the whole of the North Western Provinces into a Lieutenant Governor''s Province retransferring the seat of Government from Agra to Allahabad, however, the retransfer of the High Court followed in the year 1868. (see, The Journal of the Allahabad Historical Society, Allahabad, July, 1962, Annual number, Vol. I, page 56).

Beginning with the formation of Legislative Council at Lucknow in the year 1921, subsequently most of the important Government offices, including the secretariat and the legislative wings, were transferred to Lucknow.

(See, Gazettee of India, U. P.) 14. On 7th February, 1858, Oudh comprising 12 districts, namely: Lucknow, Faizabad, Sultanpur, Rae Bareilly, Pratapgarh, Barabanki, Gonda, Bahraich, Sitapur, Kheri, Hardoi, Unnao, was annexed to the British Empire. Annexation of 1856, brought the British system of administration of justice with some flexibility and the highest court of appeal, the Judicial Commissioner''s Court was established at Lucknow under the Government of India order dated February 4, 1856.

By the Oudh Civil Courts Act, 1879, the Judicial Commissioner was constituted the head of the judiciary. In the year 1901, United Provinces of Agra and Oudh was created. The judicial administration in the two regions of the provinces, however, continued to remain separate. Subsequently the Oudh Civil Courts Act, 1879, was repealed by the Oudh Courts Act, 1925 and the Court of Judicial Commissioner was replaced by the Oudh Chief Court with jurisdiction extending over the same area.

(See, Chapter I, Clause I (2) of Oudh Courts Act, 1925)

The two Judicial Administrations wielded jurisdiction over the two separate regions of the United Provinces for many years. Though the capital of the United Provinces continued at Lucknow since the year 1921, yet the Chief Court in Oudh used to exercise its jurisdiction only in respect of Oudh area.

Ultimately, both Chambers of the Legislature of the United Provinces presented addresses to the Governor to amalgamate the High Court of Judicature at Allahabad and the Chief Court in Oudh and the said addresses were submitted to the Governor-General, who in exercise of the powers conferred by Section 229 of the Government of India Act, 1935, and all other powers enabling him in that behalf promulgated the Amalgamation Order, 1948, whereby the High Court in Allahabad and the Chief Court in Oudh have been amalgamated and since then they constitute one High Court by the name of the High Court of Judicature at Allahabad.

Chapter XIII of Code of Criminal Procedure, 1973 (hereinafter referred to as the Criminal Procedure Code) deals with the Jurisdiction of the criminal courts in inquiries and trials. Section 177, Criminal Procedure Code provides that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. But this is not the universal rule and there are exceptions to the aforesaid general provision. In different contingencies enumerated in Chapter XIII, Courts having jurisdiction over a local area other than that where the offence was committed may also have jurisdiction to try the offence. Section 178, Criminal Procedure Code provides for a situation where offence is committed partly in one local area and partly in another, or the offence is continuing one, and continues to be committed in more local areas than one, or where it consists of several acts done in different local areas. Section 179 provides for a situation where offence is committed in one area and consequence ensues in another area. Section 181 provides for the place of trial of several categories of offences like dacoity or dacoity with murder or kidnapping or abduction, theft, extortion or robbery where the property is recovered. It also provides for the place of trial for an offence of criminal misappropriation or breach of trust. Section 182 provides for the place of trial where cheating is committed by deception practised by means of letters or telecommunication messages, etc. Chapter XIII deals with the jurisdiction of the Court in enquiries and trials. It does not deal with the territorial jurisdiction of Courts hearing an appeal, revision or petition u/s 482, Criminal Procedure Code Chapter XXIX of the Code deals with the appeals. Section 374(3) lays down that a person convicted on a trial held by a Magistrate of the First Class, Metropolitan Magistrate or Assistant Sessions Judge may appeal to the Court of Session. Section 374(2) provides that a person convicted on trial held by a Sessions Judge or Assistant Sessions Judge or by any other Court in which sentence of imprisonment for more than 7 years has been passed, may appeal to the High Court. Section 374(1) provides that a person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court. The different sections in Chapter XXIX merely provide the forums of appeal and not the seat of such forums (appellate court). This is in contradistinction to Chapter XIII where detail provisions have been laid down regarding the territorial jurisdiction of criminal courts in enquiries and trials. The question here is whether in the fact situation, namely, that the offence was committed in Kanpur Nagar, the present petition u/s 482, Cr. P.C, which seeks quashing of the order passed by the Special Judge (Anti-corruption), Lucknow, is maintainable before the principal seat of the High Court at Allahabad within whose jurisdiction the district of Kanpur Nagar is situate or in the Lucknow Bench of Allahabad High Court, which exercises jurisdiction over the district of Lucknow. This has to be answered with reference to Clause 14 of the Amalgamation Order as the provisions of the Code of Criminal Procedure are silent on the point. Clause 14 of the Amalgamation Order reads as under:

The new High Court, and the Judges and division courts thereof, shall sit at Allahabad or at such other places in the United Provinces as the Chief Justice may, with the approval of the Governor of the United Provinces, appoint:

Provided that unless the Governor of the United Provinces with the concurrence of the Chief Justice, otherwise directs, such Judges of the new High Court, not less than two in number, as the Chief Justice, may, from time to time nominate, shall sit at Lucknow in order to exercise in respect of cases arising in such areas in Oudh, as the Chief Justice may direct, the jurisdiction and power for the time being vested in the new High Court:

Provided further that the Chief Justice may in his discretion order that any case or class of cases arising in the said areas shall be heard at Allahabad.

The crucial words of the first proviso to Clause 14 reads as under:

Such Judges of the new High Court...........shall sit at Lucknow in order to exercise in respect of cases arising in such areas in Oudh...the jurisdiction and power for the time being vested in the new High Court.

The language shows that in respect of cases arising in areas of Oudh, it is Lucknow Bench which will have jurisdiction. It is noteworthy that the provision does not make any reference to the place where the incident took place or the crime was committed, nor it makes reference to the "local area" where the offence could be tried in view of Chapter XIII (Sections 177 - 189) of the Code of Criminal Procedure. The only relevant factor for determining the jurisdiction of Lucknow Bench is whether the case arises in the area of Oudh. The dictionary meaning of the word ''case'' is as under:

LAW LEXICON BY P. RAMANATHA AIYER:

In a legal sense a state of facts which furnishes occasion for the exercise of the jurisdiction of a court of justice:

A subject on which the judicial power is capable of acting and which has been submitted to it by a party in the forms required by law:

A state of fact involving a question for discussion, especially a cause or suit in Court:

A question contested before a court of justice in an action or suit brought before it.

The definition of ''case'' is wider than that of a ''suit'' or ''criminal prosecution'', or a ''proceeding in rem'', although in law it usually applies to one of them. It may embrace, however, any state of facts involving matters for decision.

In common parlance, it has a more extended meaning than the word ''suit'', or ''action''.

BLACK''S LAW DICTIO-NARY:

A general term for an action, cause, suit or controversy, at law or in equity ; a question contested before a court of justice ; an aggregate of facts which furnishes occasion for the exercise of the jurisdiction of a Court of justice. A judicial proceeding for the determination of a controversy between parties wherein rights are enforced or protected, or wrongs are prevented or redressed ; any proceeding judicial in its nature.

14 CORPUS JURIS SECUN-DUM, PAGE 1:

In its legal sense, as a cause, or a state of facts which furnishes occasion for the exercise of the jurisdiction of a court of justice.

The dictionary meaning of the word ''case'' shows that it is a word of comprehensive import. In the context in which the word ''case arising'' has been used in Clause 14, it would mean a subject on which the judicial power is capable of acting and which has been submitted to it by a party in the forums required by law. Therefore, if any order is passed in any proceedings by a criminal court situate within the area of Oudh and the same is challenged before the High Court, it is the Lucknow Bench of the High Court alone which will have jurisdiction in the matter, and not the principal seat of the High Court at Allahabad.

Sri A. D. Giri, learned Senior Advocate, appearing for the Petitioners has submitted that the import of Clause 14 of the Amalgamation Order has been examined threadbare in Sri Nasiruddin Vs. State Transport Appellate Tribunal, , and according to the principle laid down in the said case, the principal seat of Allahabad High Court will also have jurisdiction in the matter as the offence was committed in Kanpur Nagar. It may be stated at the very outset that any observation made in the said case with regard to writ petitions cannot have any application to the question raised before us in view of the language used in Clause (2) of Article 226 of the Constitution, which lays down that 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 Government or authority or the residence of such person is not within those territories. Clause (2) of Article 226 was not in existence originally but came by subsequent amendment. Initially Clause (la) had been inserted by the Constitution (15th Amendment) Act, 1963, which has been renumbered as Clause (2) by the Constitution (Forty-second Amend-ment) Act, 1976, and this confers power on the High Court to exercise jurisdiction in relation to the territories within which cause of action wholly or in part arises for the exercise of such power. In Nirmal Dass Khaturia and Ors. v. S.T. Tribunal, U.P. and Ors. AIR 1972 All 200, it was held by a Full Bench of this Court that with regard to the petitions under Article 226 of the Constitution, the same will be a "case arising within the areas in Oudh" only if the right of the Petitioner in such an application arose first at a place within an area in Oudh. In Nasiruddin (supra), this conclusion of the Full Bench was specifically overruled (paragraph 36 of the reports) and it was held that the expression "cause of action" in an application under Article 226 would be as the expression is understood and if the cause of action arose because of an appellate order or the revisional order, which came to be passed at Lucknow, then Lucknow Bench would have jurisdiction though the original order was passed at place outside the areas in Oudh.

Sri Giri has placed strong reliance on the following observation made in the Nasiruddin, (supra) in paragraph 37 of the reports where conclusions were summarised:

... Fifth, a 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 cases depending on the facts and the provision regarding jurisdiction, it may arise in either place.

In our opinion, the aforesaid observations have been made in a general manner with regard to normal situation and they cannot be construed literally or in a strict manner. The Supreme Court was not contemplating a situation where a special court has been created to try such type of offences which had been investigated by the C.B.I. and that single court has been conferred jurisdiction to try such cases of several districts as is the case here. The expression, "a criminal case arises where the offence has been committed" does not mean that a criminal case would necessarily be arising in the local area where the offence has been committed. When the Court used the words, "or otherwise as provided in the Criminal Procedure Code", it obviously meant the place where the criminal court will have jurisdiction to hold enquiry or trial having regard to Chapter XIII of the Code of Criminal Procedure. The Court of Special Judge (Anti-corruption), Lucknow, has been conferred jurisdiction to try the offence in question which was committed in Kanpur on account of the jurisdiction conferred upon it by the exercise of power under the relevant provisions of the Code of Criminal Procedure. Since the case was investigated by the C.B.I., the Special Judge (Anti-corruption), Lucknow, has exclusive jurisdiction to try the offence. The Petitioners are not being prosecuted in any case before a criminal court at Kanpur. Even though the offence was committed at Kanpur, the jurisdiction of the Court of Session at Kanpur has been ousted on account of conferment of jurisdiction on the Court of Special Judge (Anti-corruption), Lucknow by issuing notification under the relevant provisions of Code of Criminal Procedure. The relief sought by the Petitioners in the present petition u/s 482, Criminal Procedure Code is the quashing of the order passed by the Special Judge (Anti-corruption), Lucknow. Therefore, the above quoted observation relied upon by Sri Giri cannot be interpreted to mean that even in such a fact situation, the principal seat at Allahabad will have jurisdiction to entertain the petition.

The view which we have taken is supported by several decisions of this Court. Crl. Misc. Application No. 4335 of 1998, Puneet Kanodia and Anr. v. State of U. P. and others, is an identical case where the petition u/s 482, Criminal Procedure Code was filed at Allahabad for quashing of the proceedings before Special Judge (Anti-corruption), Lucknow and a plea was raised that as the offence had been committed at Saharanpur, the principal seat at Allahabad had the jurisdiction to hear the matter. It was held that the charge-sheet having been submitted before the Court at Lucknow, which had issued summonses to the accused, the jurisdiction to entertain the petition was with the Lucknow Bench. In Balram Datta Sharma v. State of U. P. 1999 (1) A CR 805: 1999 ALJ 1478, cheating and forgery had been committed in the district of Meerut which falls within the jurisdiction of the principal seat of the High Court at Allahabad, but the F.I.R. was lodged at Lucknow and the case was being investigated by the C.B.I. which had arrested the applicants. It was held that the bail application would be maintainable in the Lucknow Bench and not at Allahabad. In Mukhtar Ansari v. Central Bureau of Investigation 1999 ALJ 2241, the offence under Sections 364A and 365A, Indian Penal Code was committed in Varanasi but the case was investigated by the C.B.I. and the charge-sheet was submitted before the concerned Special Judicial Magistrate at Lucknow, who committed the case to the Court of Session at Lucknow. The accused filed a criminal revision at Allahabad challenging the order by which his plea of discharge was rejected by the Additional Sessions Judge at Lucknow. It was held that the case arose in an area in Oudh and, consequently, the Lucknow Bench of the High Court will have jurisdiction to hear the revision.

The learned single Judge in Mukhtar Ansari v. Central Bureau of Investigation 1999 (2) ACR 1564: 1999 ALJ 2241, (supra) has also observed that the criminal courts located in the 12 districts (Oudh area) are inferior to Lucknow Bench only, and, therefore, a revision application against an order passed by a criminal court in the aforesaid districts is entertainable only by the Lucknow Bench. In our considered opinion, the criminal courts in all the districts of the State are "inferior criminal courts" for both, namely, the Lucknow Bench or the principal seat of High Court at Allahabad. The jurisdiction of the principal seat at Allahabad to hear a revision against an order passed by an inferior court in any one of the districts in the area of Oudh is ousted on account of the language of Clause 14 of the Amalgamation order and not on the ground that they are not inferior criminal courts. If it is held that a Sessions Judge at Lucknow is not an inferior criminal court to the principal seat of the High Court at Allahabad, it may result in making the second proviso to Clause 14 of the Amalgamation Order ineffective or unworkable. Under the aforesaid provision, the Chief Justice has the power to direct that any case arising in the area of Oudh may be heard at Allahabad. The order of transfer passed by the Chief Justice cannot have the effect of conferring any additional power under the Code of Criminal Procedure upon the principal seat of the High Court. If the view taken by the learned single Judge is accepted, it would mean that in the event of transfer to Allahabad of a revision which has been filed in the Lucknow Bench wherein an order passed by an inferior criminal court in Oudh area has been challenged, the same cannot be heard and decided by the principal seat at Allahabad. To the limited extent wherein the learned single Judge has held that the district courts functioning in the area of Oudh are "not inferior criminal court" to the principal seat of the High Court in Allahabad is not correct and is hereby overruled.

Learned Counsel for the Petitioner has also referred to a decision of a learned single Judge in Maya Shankar Pandey v. State of U. P. 1997 ACR 588: 1997 ACC 871. In our opinion, the ratio of the said case has no application here. The case turned on the interpretation of Section 14(3), Criminal Procedure Code The offence in this case was committed in district of Ghazipur, but the accused was tried and convicted by Chief Judicial Magistrate, Eastern Railways, Mughalsarai, district Varanasi. The appeal preferred by him was rejected by the Sessions Judge, Varanasi, on the ground that he had no jurisdiction to hear the appeal in view of the fact that the offence had been committed in the district of Ghazipur. The accused then preferred an appeal before the Sessions Judge, Ghazipur, which was also dismissed on the ground that an earlier appeal preferred by the accused had been dismissed by the Sessions Judge, Varanasi, and, consequently, another Court of Sessions could not re-determine the matter. The learned single Judge allowed the revision and remanded the case to the Sessions Judge, Ghazipur, for disposing of the appeal on merits, and, for holding this, reliance was placed on Section 14(3) of the Code of Criminal Procedure and it was held that the appeal lay before the Sessions Judge, Ghazipur, as the Magistrate was also exercising his jurisdiction with regard to the local area in the said district. The language of Sub-section (3) of Section 14 is clear and it provides that where the local jurisdiction of a Magistrate extends to an area beyond the district in which he ordinarily holds the Court, any reference to the Court of Session shall, in relation to such Magistrate, throughout the area within his local jurisdiction be construed, unless the context otherwise requires, as a reference to the Court of Session exercising jurisdiction in relation to the said district. The accused having been convicted by the C.J.M., Eastern Railways, Mughalsarai, district Varanasi, the appeal against his conviction, therefore, lay before the Sessions Judge, Varanasi. The interpretation given to Sub-section (3) of Section 14, Criminal Procedure Code by the learned single Judge is not correct and the same is overruled.

In view of the discussions made above, our answer to the question referred to by the learned single Judge is as follows:

It is the location of the criminal court which 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.

The petition may now be listed before the appropriate Bench for hearing.