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Gauhati High Court · body

2001 DIGILAW 111 (GAU)

Dinabandu Das v. State of Assam and Ors.

2001-04-20

B.B.DEB

body2001
The aforesaid three petitions filed by three accused petitioners under section 438 Cr PC seeking pre-arrest bail pertaining to Silchar Police Station Case No. 15687 2000 under section 342/325/307/302/34 IPC, and as such, taken together for disposal. 2. One Smti Parbati Das of village Rongpur, PS Silchar, Assam, lodged FIR 10.12.2000 against Shri Dinabandu Das, Shri Joy Krishna Das and Shri Krishna Das (petitioners in the related petitions) narrating facts constituting offence, ex-facie, under sections 324/325/307/302/34, IPC and the Police Station concerned registered the FIR being Silchar PS Case No. 1568/2000 (dated 10.12.2000). 3. The petitioners sought for anticipatory bail under section 438 Cr PC at Shillong Bench of Gauhati High Court. The question posed as to whether the Shillong Bench of the Gauhati High Court has territorial jurisdiction over the matter. The learned counsel for the petitioners, Mr. DK Das Choudhury, having referred to Article 231 of the Constitution of India submits that this Court being t part of the Gauahti High Court has complete jurisdiction to entertain these bail petitions notwithstanding the alleged offence committed at Silchar within the State of Assam. The Gauhati High Court, according to the learned counsel, is a common High Court for all the even States including the State of Meghalaya, and as such, any Hon'ble Judge sitting at Shillong Bench can entertain any matter arising out of any of these seven States. 4. This permanent Bench has been established by the President of India in exercise of power vested upon him under section 24 (2) of the State of Arunachal Pradesh Act, 1986 read with section 31 (2) of North Eastern Areas (Reorganisation) Act, 1971, vide notification No. GSR 49 (E), dated 1.2.1995, which is called "The Gauhati High Court (Establishment of Permanent Bench at Shillong) Order, 1995". So far the jurisdiction of the Permanent Bench is concerned" it is provided under Rule 2 which is quoted below : "2. So far the jurisdiction of the Permanent Bench is concerned" it is provided under Rule 2 which is quoted below : "2. Establishment of a Permanent Bench of Gauhati High Court at Shillong-There shall be established a Permanent Bench of the Gauhati High Court at Shillong, and such Judges of the Gauhati High Court, being not less than two in number, as the Chief Justice of that High Court may, from time to time nominate, shall sit in Shillong in order to exercise the jurisdiction and powers for the time being vested in the Gauhati High Court in respect of cases arising in the State of Meghalaya; Provided that the Chief Justice of that High Court may, in his discretion, order that any case or class of cases arising in the State of Meghalaya shall be heard at Gauhati." 5. So it appears from the Presidential Order that this permanent Bench at Shillong has been established to exercise jurisdiction and power for the time being vested in Gauhati High Court in respect of cases arising in the State of Meghalaya (emphasis supplied). It is not disputed that the alleged offence has been committed at village Rongpur under Police Station Silchar within the State of Assam and not within the State of Meghalaya. The learned counsel for the petitioners emphasizes that notwithstanding the place of incident the petitioners being a permanent residents of Meghalaya have every right to seek for pre-arrest bail before this Bench at Shillong. 6. But from the afore quoted Presidential Order it reveals that the territorial jurisdiction of the Gauhati High Court between the Principal Seat at Guwahati and the permanent Bench sitting at Shillong has been bifurcated/identified, only in exceptional circumstances, the Hon'ble Chief Justice has been delegated with the discretionary power to allow the same to be filed/heard at Principal Seat at Guwahati regarding any cases or class of cases arising in any State other than the State of Assam. By the Presidential Order division of territorial jurisdiction has been identified and demarcated and the permanent Bench of Shillong has been vested with full power to entertain, deal with and hear in respect of cases arising in the State of Meghalaya only. The question arises as to the interpretation of the term 'cases arising'. By the Presidential Order division of territorial jurisdiction has been identified and demarcated and the permanent Bench of Shillong has been vested with full power to entertain, deal with and hear in respect of cases arising in the State of Meghalaya only. The question arises as to the interpretation of the term 'cases arising'. According to the learned counsel for the petitioners since these bail petitions have been filed at Shillong Bench the cases undoubtedly arise in the State of Meghalaya for the purpose of territorial jurisdiction of this Court. This seems to be a misconceived submission. 'Cases arising' normally means the place/locality where the cause of action can be said to have been & arisen. In the case in hand, admittedly the cause of action arose on 10.12.2000 at Rongpur under Silchar Police Station within the State of Assam and thus, it cannot be construed that the case in hand arises at Meghalaya for the purpose of determining the territorial jurisdiction of the Shillong Bench of the Gauhati High Court. In this context reference may be had to a reported case of the Hon'ble Apex Court in Rajasthan High Court Advocates' Association vs. Union of India & others reported in (2001) 2 SCC 249. 7. The learned counsel for the petitioners further submits that the ordinary residents of the petitioners is also decisive factor to determine the territorial jurisdiction. I am afraid to share with such contention, a bare reading of the FIR reveals that the cause of action for that criminal case arose at Rongpur under Silchar Police Station and as no part of it falls within any territorial area of the State of Meghalaya and as such, it cannot be said that this is a case arising in any part of the State of Meghalaya. The learned counsel for the petitioners submits that since the personal liberty to the petitioners are being threatened they acquire the right to move this Court to protect their fundamental rights guaranteed under Article 21 of the Constitution of India. Had the petitions been under section 439 of the Cr PC for post arrest bail, the matter would have been otherwise, but, since the petitions are for pre-arrest direction of bail, the question of personal liberty as contemplated under Article 21 of the Constitution of India does not arise at all. 8. Had the petitions been under section 439 of the Cr PC for post arrest bail, the matter would have been otherwise, but, since the petitions are for pre-arrest direction of bail, the question of personal liberty as contemplated under Article 21 of the Constitution of India does not arise at all. 8. At this stage, the learned Senior Govt Advocate, informed that the present petitioners earlier moved this Court with identical prayers but, this Court by order dated 11.4.01 in Bail Application No. 13 (SH) of 2001, 14 (SH) of 2001 and 15 (SH) of 2001 declined to entertain the petitions in view of the Presidential Order establishing Permanent Bench at Shillong and liberty was granted to the petitioners to move their petitions at Principal Seat of the Gauhati High Court at Guwahati. Despite, the petitioners repeated the same by filing the present petitions instead of complying with the direction given by this Court as stated above. This is highly deprecated. Once identical petitions have been refused to be entertained by this Court the same should not be allowed to be repeated. This sort of procedure should be discouraged and stopped henceforth. The learned counsel for the petitioner having referred to paragraph 10 of the petitions made a sincere effort to convince the Court that this Court being in integral part and parcel of the common High Court namely Gauhati High Court has the competence to entertain these petitions. I am respectfully in disagreement with such contention having regard to the imperative directives available in the Presidential Order. 9. In view of the Presidential Order as quoted above, the permanent Bench at Shillong constituted by the Presidential Order has been vested with power to hear, entertain and decide cases arising in the State of Meghalaya and as such, I am constrained to reject the bail petitions being not maintainable.