Research › Search › Judgment

Rajasthan High Court · body

2009 DIGILAW 2172 (RAJ)

Manohar Singh v. Union of India

2009-10-15

PRAKASH TATIA

body2009
Hon'ble TATIA, J.—Heard learned counsel for the parties. 2. The petitioner a member of armed force was charged for the offences under Section 376 of the Ranveer Penal Code (RPC), which is the law in force in the State of Jammu and Kashmir. This offence is the same offence as the offence under Section 376 of the Indian Penal Code. The petitioner being a member of armed force could have been tried for the said offence by the General Security Force Court (GSFC) as per the procedure prescribed in the Border Security Force Act, 1968, therefore, he was tried by the General Security Force Court at Srinagar and was convicted for the offence of committing rape with one lady and has been sentenced to undergo 5 years RI and also punished with dismissal from service vide order dated 10th March, 1998. As per Section 107 in Chapter VII of the Act of 1968, the sentence was required to be confirmed and, therefore, the matter was sent for confirmation of sentence to the competent authority whose office was at Delhi. The sentence was confirmed by the authority at Delhi vide order dated 20th May, 1993. The petitioner remained in custody in the State of Jammu & Kashmir during trial and after confirmation of sentence. However, he was shifted to the Central Jail, Jodhpur in the month of June, 1993. The petitioner from Jodhpur Central Jail preferred an appeal under Section 117(2) of the Act of 1968 against his conviction through Jail Authorities from Jodhpur to the Director General whose office was at Delhi. The petitioner's appeal was dismissed by the Director General, Delhi under the Act of 1968 on 27th July, 1995. The petitioner, therefore, has challenged the order of the appellate authority dated 27th July, 1995 passed at Delhi as well as the order of conviction dated 10th March, 1993 passed at Jammu & Kashmir and confirmation of said order of conviction and sentence dated 20th May, 1993 which too was passed at Delhi by preferring this writ petition in the State of Rajasthan before the High Court under Article 226/227 of the Constitution of India. 3. In sum and substance, the orders which were passed at Jammu & Kashmir and at Delhi are being sought to be challenged in the State of Rajasthan. 4. 3. In sum and substance, the orders which were passed at Jammu & Kashmir and at Delhi are being sought to be challenged in the State of Rajasthan. 4. The respondents in view of the above facts, raised the preliminary objection about the maintainability of the writ petition in the High Court at Rajasthan on the ground of lack of territorial jurisdiction. 5. Heard learned counsel for the parties. 6. The contention of learned counsel for the petitioner is that it is true that petitioner was tried in the State of Jammu & Kashmir and was convicted in the Court at Jammu & Kashmir and was sentenced there and his sentence was confirmed when petitioner was in the jail at Jammu & Kashmir, however, the petitioner was transferred in the State of Rajasthan and from Jodhpur, the petitioner preferred appeal before the Director General whose office is at Delhi and his appeal was dismissed, but order of dismissal of appeal was conveyed to the petitioner in Central Jail at Jodhpur in the State of Rajasthan and therefore, cause of action accrued to the petitioner within the territorial jurisdiction of the Rajasthan High Court. Therefore, the court at Rajasthan has jurisdiction to here and decide the writ petition of the petitioner to challenge the order referred above. 7. Learned counsel for the petitioner relied upon several judgments touching the subject of "cause of action" and with support of those authorities, submitted that the cause of action is total bundle of facts and on proving those facts, one is entitled to the relief claimed. The bundle of facts includes even part of the event. Meaning thereby, the cause of action may occur at several places and in that situation, the applicant, petitioner or plaintiff, as the case may be, seeks remedy from the court situated in the territory of any of the place where part of cause of action accrued. In that situation it is the appellant/petitioner/plaintiff, as the case may be, has absolute right to choose the court for getting the relief and his petition cannot be dismissed on the ground that cause of action also accrued in territories which are not within the territorial jurisdiction of the court in which the petition has been submitted in view of sub-clause (2) of Article 226 of the Constitution of India. According to learned counsel for the petitioner the petitioner could have preferred appeal against his conviction from Jodhpur as he was lodged in Jail by non-else-than the respondents-authorities and order of dismissal of his appeal has been conveyed to him in the State of Rajasthan at Jodhpur, therefore, in view of the judgments relied upon by learned counsel for the petitioner, the Rajasthan High Court has jurisdiction to entertain, hear and decide the writ petition of the petitioner. 8. Learned counsel Sh. V.K. Mathur for the Union of India vehemently submitted that the cause of action has been defined in various judgments and there is no dispute about the proposition that the petition can be maintained in any of the Court in whose jurisdiction cause of action in whole or in part accrued, but the cause of action is bundle of facts, which are required to be proved by applicant/petitioner to get the relief from the court. These facts must relate to the parties to the litigation and has nothing to do with the court or appellate court. From the judgment delivered by the Hon'ble Apex Court as well as High Courts itself it is clear that infraction of right or cause is the cause of action. The infraction of right or occasion of cause can have reference only to the action or inaction of the rival parties and cannot have reference to the court or appellate court. As per the law the necessary facts for initiation of proceedings in a court/tribunal are the facts which effects the right of the aggrieved party by the action or inaction of the respondent, but by no stretch of imagination can be construed to mean any act or inaction of court of original jurisdiction or appellate jurisdiction (or wrong judgment). If, it will be held that because of delivery of judgment by court the `cause of action' accrued to one party then that will mean that the court/tribunal who passed the order is adversary litigant to the aggrieved party. 9. I considered the submissions of learned counsel for the parties and perused the judgment relied upon by the learned counsel for the parties. 10. 9. I considered the submissions of learned counsel for the parties and perused the judgment relied upon by the learned counsel for the parties. 10. The facts are not in dispute that petitioner was charged for the offence under Section 376 of Ranveer Penal Code for committing offence in the State of Jammu & Kashmir and was tried in the State of Jammu & Kashmir and was convicted and sanctioned in the State of Jammu & Kashmir and his sentence was confirmed when petitioner was in the State of Jammu & Kashmir. After confirmation of sentence, he was sent to the jail at Jodhpur obviously it may be due to administrative reason, but petitioner is not aggrieved against his shifting to the jail at Jodhpur. It is also admitted fact that petitioner when was lodged in the Jodhpur city in the State of Rajasthan he preferred appeal against his conviction and sentence to the Director General at Delhi and his appeal was dismissed at Delhi within the territorial jurisdiction of the Delhi High Court, however, the order of dismissal of appeal was conveyed to the petitioner at Jodhpur in the territory of the State of Rajasthan which is falling in the territorial jurisdiction of the High Court. The question is that whether conveying of order of dismissal of petitioner's appeal at Jodhpur from Delhi is `cause of action' to the petitioner at Jodhpur so as to seek relief from the High Court in Rajasthan. 11. What expression `cause of action' means, has been stated by the Hon'ble Supreme Court in the case of Rajasthan High Court Advocates' Association vs. Union of India & Ors. reported in AIR 2001 Supreme Court 416 while considering the issue of jurisdiction of Principal Seat of Rajasthan High Court, Jodhpur and the Bench of the Rajasthan High Court at Jaipur. For the purpose of decision of this writ petition, it will be worthwhile to quota what has been held by the Hon'ble Supreme Court to define expression `cause of action', which is as under:- "The expression `cause of action' has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support has right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every place of evidence which is necessary to prove each fact, comprises in `cause of action'. It has to be left to be determined in each individual case as to where the cause of action arises. 12. The Hon'ble Supreme Court in the above case of Rajasthan High Court Advocates' Association also considered the clause (1) and (2) of Article 226 of the Constitution of India, which provides how territorial jurisdiction shall be exercised by any High Court. Article 226(2) of the Constitution of India is relevant for the purpose of this writ petition and which is as under:- "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 power, notwithstanding that the seat of such Government or authority or the residence of such person is not within these territories." 13. The Hon'ble Supreme Court after considering the clause (1) and (2) of Article 226 of the Constitution of India held that".....in which district the cause of action can be said to have arisen and then exercising the jurisdiction under Article 226 of the Constitution of India..." In view of the above decision of the Hon'ble Supreme Court delivered in the case of Rajasthan High Court Advocates' Association, it is clear that the cause of action in its restricted sense or in wider sense means infraction of the right, obviously of party to the litigation; or the immediate occasion for action, again obviously refers to the party and in wider sense mean necessary conditions for maintenance of suit, obviously by a party to litigation; and further when there is infraction of right obviously of party. Further, if any fact alleged by one party, is if traversed, then required to be proved by the party is the cause of action. The cause of action given right to initiate a proceeding in court of law or before any authority against adversary-party. If it accrues in peaces and/or in sequence of one transaction, action or inaction of parties in different territories then by virtue of interpretation of law it has been held that the party may have right to choose the Court/authority for initiation of proceedings in any of the Court, which has jurisdiction over the area in which such part of cause of action accrued. Once the party, obviously plaintiff, choose a court and filed a suit or petition in that court then for that party, jurisdiction of other courts automatically stands excluded by his election of court or authority. The cause of action determines the jurisdiction of the court as stated above. The cause of action has no relation with the act, action and inaction of the court in a proceeding duly instituted by a party in competent court, which is a forum provided by statutory provision of law. The act of the court cannot affect the cause of action nor altered place of accrual of cause of action. From the order/decree of any court in which court appeal shall lie is provided by statutory provision of law. The appellate Court may be situated outside the territorial jurisdiction of all the places from where cause of action wholly or partly accrued. For the purpose of litigation the cause of action between the parties will remain the same and cannot change because of the reason that any statutory provision provides appeal against the order or judgment before the appellate court situated outside the territories of the Court subordinate to it, who decided the lis. At this place, it will be worthwhile to consider sub-clause (2) of Article 226 of the Constitution of India, which provides that the power as conferred by clause (1) of the Article 226 of the Constitution of India to issue directions, orders or writs. (1) to any Government, authority or person (ii) may also be exercised by any High Court. (iii) exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power. (1) to any Government, authority or person (ii) may also be exercised by any High Court. (iii) exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power. (iv) notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories." 14. Meaning thereby first High Court must have territorial jurisdiction by application of principle of accrual of cause of action as referred in above sub-clause (3), may it be wholly or in part. The emphasis given in sub-clause (2) of Article 226 of the Constitution of India is to "accrual of cause of action within the territory of High Court" and if it is so, then Irrespective of fact that the seat of such Government or authority against whom direction, order or writ is sought to be issued is situated not within those territories obviously where cause of action accrued. 15. If above legal position is constructed harmoniously then the position would come that the High Court must have jurisdiction on the basis of the accrual of cause of action within its territorial jurisdiction and cause of action means action, inaction, infraction of right of the parties resulting into circumstance for initiation of an action against the other party. 16. Keeping in mind above legal position if we look into the facts of the present case then alleged infraction of right or occasion for action arose to the writ petitioner because of the allegation of committing offence in the State of Jammu & Kashmir and because of action of the authorities in the State of Jammu & Kashmir as he was tried and convicted and put in custody in State of Jammu & Kashmir by the action of the respondent-authority. The petitioner is required to assail all the acts and actions of the respondents-authority only to challenge the action of the respondent and petitioner is not seeking relief against the appellate Court as such and seeking setting aside judgment of judicial decision is not any relief against the court or tribunal or such authority. The order passed at Delhi by the competent authority rejecting the petitioner's appeal is not a fact relevant for the purpose of taking a decision on merit of the case of the petitioner wherein he has been convicted and sentenced. The order passed at Delhi by the competent authority rejecting the petitioner's appeal is not a fact relevant for the purpose of taking a decision on merit of the case of the petitioner wherein he has been convicted and sentenced. It is irrelevant where the appellate Court has passed the order or has communicated. It is so because of the reason that the place of passing of order by appellate authority cannot be a necessary fact affecting the merits of the allegations against the petitioner and had no relation with the defence of the petitioner in the proceedings in which he was convicted. By virtue of sub-clause (2) of Article 226 of the Constitution of India, the Court at Jammu & Kashmir where cause of action accrued shall have the jurisdiction to hear the writ petition against the order passed by the appellate authority even it its office is situated beyond the territorial jurisdiction of the High Court of Jammu & Kashmir State, which is clear from the language of sub-clause (2) of Article 226 of the Constitution of India that order/direction or writ can be against "notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories." This phrase may not be confused to mean that this language in sub-clause (2) of Article 226 of the Constitution of India gives power to any High Court to issue directions, orders or write to any Government or authority whose office is not within territorial jurisdiction of the High Court as well as within whose territorial jurisdiction no cause of action has accrued. Contrary view will result into holding that all High Courts in India shall have jurisdiction to issue orders, directions or writs to all the Governments and authorities irrespective to fact where cause of action accrued and where the seat of such Government or authority is situated in India. Hon'ble Supreme Court in the case of UOI & Ors. Contrary view will result into holding that all High Courts in India shall have jurisdiction to issue orders, directions or writs to all the Governments and authorities irrespective to fact where cause of action accrued and where the seat of such Government or authority is situated in India. Hon'ble Supreme Court in the case of UOI & Ors. vs. Adani Exports Ltd. reported in (2002) 1 SCC 567 held that "facts which have no bearing with the is or the dispute involved in the case, do not give rise to a cause of action so as to confer jurisdiction of the Court concerned." Even if it is presumed that any part of cause of action can accrue on the basis of the order passed by the appellate Court then also in the present case, the appellate court passed the order at Delhi and, therefore, if plea of the petitioner is accepted then at the most, the court at Delhi may have jurisdiction to entertain the writ petitioner, but merely on the basis of receiving the copy of the order from appellate Court from Delhi to Jodhpur by the petitioner itself cannot be treated to be even part of the cause of action. 17. The cause of action even has no relation whatsoever to the defence which may be set up by the defendant, nor does it depend upon the character of relief prayed for by the plaintiff as has been held in the case of Chand Kaur vs. Partab Singh and as has been approved by the Hon'ble Supreme Court in the case of Oil & Natural Gas Commission vs. Utpal Kumar Basu & Ors. reported in (1994) 4 SCC 711 . 18. Learned counsel for the petitioner also submitted that by virtue of Section 79 of the Border Security Force Act, 1968, an accused can be triad anywhere in India and, therefore, the present controversy cannot be considered in narrow compass of strict rules of accrual of cause of action in any particular territory. There is no force in this submission. 18. Learned counsel for the petitioner also submitted that by virtue of Section 79 of the Border Security Force Act, 1968, an accused can be triad anywhere in India and, therefore, the present controversy cannot be considered in narrow compass of strict rules of accrual of cause of action in any particular territory. There is no force in this submission. Merely because a special provision has been made in a special Act as is in the Act of 1968, empowering any authority to try any person covered under the Act of 1968 anywhere in India itself cannot mean that after exercise of discretion to prosecute a person by an authority under the Act of 1968, the accused person gets the right to challenge the order of conviction and sentence anywhere in India. Section 79 is only a provision giving power to said authorities under the Act of 1968 to try any persons without there being any limitation of territory. It has nothing to do with the issue where the appeal can be preferred. As already noticed that the petitioner was tried in the State of Jammu & Kashmir, therefore, the authority exercised its power to try the accused within the territories where offence occurred. It has nothing to do with cause of action for the petitioner so as to permit him to challenge the said order anywhere in India as Section 79 nowhere says that a person tried by the authority under the Act of 1968 shall be free to challenge the order of the authority anywhere in India. Therefore, there is no force in the submission of learned counsel for the petitioner on this ground also. 19. The judgments relied upon by learned counsel for the petitioner all relates to the subject how and where the cause of action can accrue and what constitute the cause of action, but those principles substantially are covered in the decision of Hon'ble Supreme Court delivered in Rajasthan High Court Advocates' Association (supra) and therefore, I need not to refer all other judgments sited by learned counsel for the parties. 20. 20. Learned counsel for the petitioner at this stage, submitted that the writ petition may not be dismissed after delay of so many years, but that argument has no force because of the reason that there is question of jurisdiction of the Court and when court is not vested with the jurisdiction, cannot acquire jurisdiction by passing of time only. 21. In view of the above discussion, it is held that this Court has no jurisdiction to entertain the writ petition to challenge the orders passed in the State of Jammu & Kashmir and at Delhi, which are the orders under challenge in this writ petition. 22. In the result, the writ petition of the petitioner is dismissed as this Court has no writ jurisdiction.