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1991 DIGILAW 465 (KER)

Ravindran v. Dy. Inspector General of Police

1991-10-29

PAREED PILLAY

body1991
Judgment :- Petitioner was prosecuted for absenting himself from duty without permission on 6-8-1986 from the special train in which he was travelling. He is alleged to have committed offence under S.10(m) of the Central Reserve Police Force Act, 1949 (for short, the act). He was also accused of leaving the train without handing over the charge of the vehicle which was carried in the train. He was produced before the Magistrate of the First Class and Assistant Commandant, Shilling. Though he pleaded guilty to both the charges, the Magistrate recorded the statements of five prosecution witnesses and gave him an opportunity to cross-examine them. He declined to cross-examine the witnesses. Considering his 18 years of service to the entire satisfaction of the superiors, the Magistrate took a lenient view and convicted him till the rising of the Court. 2. As a result of the judicial trial and consequent conviction petitioner was dismissed from service with effect from 13-12-1986 under S.12(1) of the Act. Petitioner filed appeal under R.28 of the C.R.P.F. Rules, 1955. The appeal was rejected by the first respondent as per Ext.P4 order. 3. Petitioner's case is that he felt giddy on account of high temperature and as advised by the superior officers he got out of the train to get some medicine, that on his way to the medical shop he fell unconscious and that before he could realise about it he was admitted in a Government hospital and after eight days only he recovered from the illness. It is also stated by him that he had sent a telegram to the Commandant of 50th Battalion (second respondent) stating the above facts. 4. Petitioner submits that Ext.P4 order dismissing him from service under S.12(1) of the Act cannot be legally sustained as there was no actual incarceration. The argument is that conviction by the Magistrate was only till the rising of the Court and this would not amount to imprisonment in the legal sense and therefore the action taken under S.12(1) without any proper disciplinary enquiry is without any justification. S.12(1) reads: "Every person sentenced under this Act to imprisonment may be dismissed from the Force, and shall further be liable to forfeiture of pay, allowances and any other moneys due to him, as well as of any medals and decorations received by him". S.12(1) reads: "Every person sentenced under this Act to imprisonment may be dismissed from the Force, and shall further be liable to forfeiture of pay, allowances and any other moneys due to him, as well as of any medals and decorations received by him". From the reading of S.12(1) it is clear that if the authorities want to proceed under this section it is not necessary to observe the formalities of a regular disciplinary enquiry. Action can be taken against the delinquent officer the moment he has been convicted and punishment of imprisonment has been imposed. 5. The question that falls for consideration is whether imprisonment till the rising of the Court would form a different category of punishment from imprisonment in a jail so as to exclude the application ofS.12(1) of the Act. Petitioner contends that imprisonment till rising of the Court cannot be construed as actual imprisonment and so first respondent was not justified in straight away invoking S.12(1) of the Act. 6. Imprisonment as defined in the General Clauses Act, 1897 means imprisonment of either description as defined in the Indian Penal Code. S.53 of the I.P.C. specifies imprisonment of two descriptions namely, (1) rigorous i.e. with hard labour and (2) simple. Merely because imprisonment is understood in common parlance as confinement of a person in a penitentiary or jail, imprisonment till the rising of the Court cannot be given an altogether different meaning and cannot be characterised as another sort of punishment. Though sentence of imprisonment till the rising of the Court does not amount to confinement in a jail or subjection to jail discipline, such conviction and sentence do not come under an entirely different and separate category of punishment. It is true that in a case of imprisonment till the rising of the Court accused cannot be detained in jail on a warrant issued for such period. Nevertheless imprisonment for one day and detention till the rising of the Court cannot be considered to be an entirely different sentence which would not attract S.12(1). In Mullakchand Sheikh v. The King (AIR 1949 Cal. 104 :1950 Crl.L.J.135) the Calcutta High Court held thus: "Rigorous imprisonment for one day and detention till the rising of the Court are not different kinds of punishment." In re MuthuNadar (AIR 1945 Mad. In Mullakchand Sheikh v. The King (AIR 1949 Cal. 104 :1950 Crl.L.J.135) the Calcutta High Court held thus: "Rigorous imprisonment for one day and detention till the rising of the Court are not different kinds of punishment." In re MuthuNadar (AIR 1945 Mad. 313) the- Madras High Court held that a direction of the Court that a person shall be confined till the rising of the Court constitutes imprisonment within the meaning of the Penal Code and Criminal Procedure Code. Thus, there is no merit in the contention that imprisonment imposed against the petitioner being till the rising of the Court cannot be considered as imprisonment to attract S.12(1) of the Act. As the petitioner has suffered imprisonment, S. 12(1) squarely applies and therefore a regular disciplinary enquiry was not warranted. 7. It has next to be considered whether this Court has jurisdiction to interfere with the impugned orders passed by the respondents located not within the jurisdiction of this Court. 8. Cl. (2) of Art.226 was inserted by the Constitution 15th Amendment Act, 1963. It was inserted as Clause 1-A. It has been renumbered as Clause 2 by the Constitution 42nd Amendment Act, 1976. Prior to the insertion of Clause 1-A, it was held that writs do not run beyond the territories in relation to which each High Court exercised jurisdiction. High Court was not in a position to issue writ or order under Art.226 unless the person, authority or Government against whom the writ is sought was physically resident or located within the territorial jurisdiction of the Court. Under Clause 1-A which is renumbered as Clause 2 by the 42nd Amendment Act the High Court gets power to issue writ against a person or authority within the jurisdiction of another High Court, if the cause of action arose wholly or in part within the territorial jurisdiction of that High Court. Thus a petition under Art.226 can be presented before the High Court within whose territorial jurisdiction the person or authority against whom relief is sought resides or is situate or in the High Court within whose jurisdiction the cause of action in respect of which relief is sought under Art.226 has arisen, wholly or in part. 9. Ext.P2 order was passed by the Commandant of the 50th Battalion, C.R.P.F., Shillong (Meghalaya). Ext.P4 order was passed by the Deputy Inspector General of Police, C.R.P.F. Kohima. 9. Ext.P2 order was passed by the Commandant of the 50th Battalion, C.R.P.F., Shillong (Meghalaya). Ext.P4 order was passed by the Deputy Inspector General of Police, C.R.P.F. Kohima. Both the authorities are admittedly beyond the jurisdiction of this Court. Contention of the petitioner that he is residing within the jurisdiction of this Court and as the orders affect him, a resident within the jurisdiction of this Court and so this Court has jurisdiction to issue writs against the respondents though they are located outside the jurisdiction of this Court is not tenable. In a case where cause of action wholly or in part arises within the jurisdiction of the High Court it would be well within the competence of the High Court to issue writs under Art.226. As Exts. P2 and P4 orders were passed by the authorities located beyond the jurisdiction of this Court and as there is nothing to indicate that the cause of action has at least arisen partly within the State of Kerala this Court cannot obviously get jurisdiction to entertain the Original Petition. Relying on Kunhabdulla v. Union of India (1983 KLT 107) which has been upheld by a Division Bench of this Court in 1985-1-LLJ. 331 counsel for the petitioner contended that petitioner was served with Ext. P4 order while he is residing in his native place at Shertallai and so he can challenge it before this Court. There is nothing on record to hold that Ext.P4 order was served on him at Sherthallai. On the other hand, Ext.P4 shows that it was served on him in his Patna address. The decisions have no application to the case in hand. 10. The Supreme Court had occasion to consider whether service of notice would amount to arising of cause of action within the jurisdiction of the Court. In State of Rajasthan v. Mis. Swaika Properties and another (AIR 1985 S. C. 1289:1985 (3) SCC 217) the Supreme Court had occasion to consider whether service of notice would amount to cause of action arising within the jurisdiction of the Court. In the cited case the respondent Company has its registered office in Calcutta and owns certain land on the outskirts of Jaipur city. The Special Officer, Town Planning, Jaipur issued a notice under S.52(2) of the Rajasthan Urban Improvement Act, 1959 regarding acquisition of that land for the public purpose of a development scheme. In the cited case the respondent Company has its registered office in Calcutta and owns certain land on the outskirts of Jaipur city. The Special Officer, Town Planning, Jaipur issued a notice under S.52(2) of the Rajasthan Urban Improvement Act, 1959 regarding acquisition of that land for the public purpose of a development scheme. Notice was duly served on the company at its registered office at Calcutta. Respondents filed a writ petition under Art.226 in the Calcutta High Court challenging the notification. An exparte prohibitory order was passed by the Calcutta High Court restraining the State of Rajasthan and the concerned authorities from taking any steps under S.52(5) or (6) of the Act. The question that was considered by the Supreme Court was whether the service of the notice under S.52(2) at the registered office of the company was an integral part of the cause of action and was sufficient to invest the Calcutta High Court with jurisdiction to entertain the petition challenging the impugned notification of the State of Rajasthan. The Supreme Court held that the rule nisi and the ad interim exparte prohibitory order issued by the Calcutta High Court under Art.226 has to be set aside and the proceedings before the High Court has to be quashed. The Supreme Court held that mere service of notice cannot give rise to a cause of action unless the service of such notice is an integral part of the cause of action. 11. As Ext.P4 order dated 28-1-1986 was sent to the petitioner in his Patna address, he could not have filed the writ petition before this Court after a lapse of two years on the ground that he is permanently residing within the jurisdiction of the State. As already pointed out, there is no evidence at all to hold that Exts.P2 and P4 orders were received by the petitioner while he has been residing within the jurisdiction of this Court. There is hardly any evidence to hold that any part of the cause of action arose within the jurisdiction of this Court. Only if it is established that the cause of action arose at least partly within the jurisdiction of this Court that it can be held that this Court has jurisdiction to deal with the matter. There is hardly any evidence to hold that any part of the cause of action arose within the jurisdiction of this Court. Only if it is established that the cause of action arose at least partly within the jurisdiction of this Court that it can be held that this Court has jurisdiction to deal with the matter. Even if the contention of the petitioner is accepted that he was served with the dismissal order while he -has been residing within the jurisdiction of this Court, it cannot be held that it would amount to the arising of cause of action within the jurisdiction of this Court. As the entire cause of action culminating in the dismissal of the petitioner from service arose beyond the territorial jurisdiction of this Court, it is indeed difficult to accept the contention of the petitioner that he has been served with the notice of dismissal while he has been residing within the jurisdiction of this Court and this would constitute part of the cause of action. Acceptance of the contention would lead to ridiculous results as it would be open to any person to file writ petition in a court of his choice solely on the ground that he has been residing within the jurisdiction of that Court. The Original Petition is dismissed. No costs.