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2009 DIGILAW 244 (ORI)

SATYAJIT MOHANTY v. STATE OF MEGHALAYA

2009-03-20

S.C.PARIJA

body2009
JUDGMENT : S.C. Parija, J. - This writ petition has been filed under Article 226(2) of the Constitution read with Section 482 Code of Criminal Procedure challenging the initiation of criminal proceeding against the Petitioners pursuant to the FIR lodged by opposite party No. 4, which was registered as Shillong P.S. Case No. 30/2008, u/s 366 IPC. The Petitioners have also prayed for transfer of criminal case from Shillong in the State of Meghalaya to any competent court within the jurisdiction of Puri in Orissa. 2. The brief facts of the case is that opposite party No. 4, who is the father of Petitioner No. 2, lodged an FIR before the OIC, Shillong Police Station, in the State of Meghalaya, with the following allegations: I beg to state that one Shri Satyajit Mohanty who is an Auditor in the office of The Principal Director stationed in Kolkata which is a branch of the Comptroller and Auditor General in India, Member Audit Board-IV of 27, Mirza Galib Street, 4th Floor Calcutta-16, has been visiting Shillong periodically for the purpose of the audit of the accounts of the Regional Manager F.C.I., Shillong and I have come to learn that he is an Auditor working under the commercial wing of the CAG which is vested with the power of making audit of the public sector undertaking on behalf of the Comptroller and Auditor General of India. 1. That somewhere he got himself introduced to me in the recent past and has been visiting my house sometimes, and on the 12/02/2008 about 10.30 a.m. he was kidnapped my daughter by force from her place of working i.e., from G.S. Road A.C. Lane, Shillong. 2. That my daughter has been working with one Shri Sharwan Jhun Jhun Wala of Anupchand Lane G.S. Road junction Police Bazar Shillong. 3. That my daughter has been found with the said Shri Satyajit Mohanty in Police Bazar on 11/02/2008 at about 3.30 p.m. and subsequently there after in the morning at about 9.30 a.m. on 12/02/2008. 4. That I have first searched her to different places including region in and around Gauhati and other distant places where our relatives stay. 5. That the age of my daughter is 20 years, 1 have come to know further that the said Satyajit Mohanty is a married person and he has also got bad antecedent of the type of the present one. 5. That the age of my daughter is 20 years, 1 have come to know further that the said Satyajit Mohanty is a married person and he has also got bad antecedent of the type of the present one. 6. That the said Shri Satyajit Mohanty has committed an offence of kidnapping my daughter from the place within the jurisdiction of this police station and 1 have spent three days to collect all the information and as such 1 could not file an FIR immediately and if there is any delay made under compulsion be considered. 7. That my daughter has been kidnapped only for the purpose of physical satisfaction and not for marriage and apart from kidnapping, the said Shri Satyajit Mohanty is also guilty of committing offence of rape. 3. The aforesaid FIR was registered as Shillong P.S. Case No. 30/2008, u/s 366 IPC and investigation was undertaken. 4. The case of the Petitioners is that the allegations made by the informant (opposite party No. 4) is false and that the said informant, who is the father of Petitioner No. 2, in a fit of anger had lodged the FIR against the Petitioner No. 1, as he was resisting the marriage of his daughter with the Petitioner No. 1. It is the further case of the accused-Petitioner No. 1 that as the informant was trying to forcibly get his daughter married somewhere else, the Petitioner No. 2 finding no other way, approached the accused-Petitioner No. 1 and forced him to take her away from the house of the informant and to get married. As the victim girl, Petitioner No. 2 was a major, aged about 22 years, she left the house of her father of her own free will and consent and accompanied the accused-Petitioner No. 1, in order to get married. Subsequently marriage of the Petitioners have been solemnized before the District Marriage Officer, Khurda, Bhubaneswar, and at present they are leading a happy conjugal life as husband and wife. The accused-Petitioner No. I apprehends that due to pendency of the criminal case against him, their married life is bound to be adversely affected and he being an employee of the Central Government, his service career will be seriously prejudiced. The accused-Petitioner No. I apprehends that due to pendency of the criminal case against him, their married life is bound to be adversely affected and he being an employee of the Central Government, his service career will be seriously prejudiced. It is pleaded that as the victim girl (Petitioner No. 2) has already got married to the accused-Petitioner No. 1, of her free will and consent and they are leading a happy married life, the continuation of criminal proceeding/investigation against them would be an abuse of the process of law, especially when there is bleak chance of ultimate conviction. Accordingly the Petitioners have prayed for quashing of the criminal proceeding initiated against the accused-Petitioner No. 1 under the impugned FIR. In the alternate, the Petitioners have prayed for transfer of the pending criminal proceeding/investigation from Shillong, in the State of Meghalaya, to a competent court in Puri, in the State of Orissa, where the Petitioners are residing at present. 5. Learned Counsel for the Petitioners, with reference to Article 226(2) of the Constitution, submits that as the offence of kidnapping and abduction u/s 366 IPC is a continuous offence as provided u/s 181(2) Code of Criminal Procedure and the Petitioners are at present residing at Puri in the State of Orissa, this Court has the territorial jurisdiction to entertain the writ petition and pass appropriate orders/writs for quashing of the criminal proceeding initiated against them before the OIC, Shillong Police Station, in the State of Meghalaya and in this regard, learned Counsel has relied upon a decision of the apex Court in the case of Navinchandra N. Majithia Vs. State of Maharashtra and Others, . 6. On a perusal of the aforesaid decision it is seen that the Hon'ble Court found that a large number of events have taken place at Bombay in respect of the allegations contained in the F.I.R. registered at Shillong. Further the averments in the writ petition reveals that the major portion of the events which led to the filing of the FIR have taken place at Bombay. Accordingly the Hon'ble Court came to hold that a part of the cause of action has arisen at Bombay and therefore the High Court of Bombay had jurisdiction to entertain the writ petition filed by the accused Petitioner. Accordingly the Hon'ble Court came to hold that a part of the cause of action has arisen at Bombay and therefore the High Court of Bombay had jurisdiction to entertain the writ petition filed by the accused Petitioner. The Hon'ble Court further found that the very fact that major portion of the investigation of the case under the FIR has to be conducted at Bombay, itself shows that the cause of action cannot escape from the territorial limits of the Bombay High Court. 7. With regard to the ambit and scope of Article 226(2) of the Constitution, the Hon'ble Court observed that the maintainability or otherwise of the writ petition in the High Court depends on whether the cause of action for filing the same arose wholly or in part, within the territorial jurisdiction of that Court. In order to confer jurisdiction on the particular High Court, the Petitioner must show that at least a part of the cause of action had arisen within the territorial jurisdiction of that Court. 8. In the case of Oil and Natural Gas Commission v. Utpal Kumar Basu, reported in AIR 1994 SCW 3287 , the question of territorial jurisdiction under Article 226(2) of the Constitution was considered at length. The Supreme Court observed that it is well settled that the expression 'cause of action' means that bundle of facts which the Petitioner must prove, if traversed to entitle him to a judgment in his favour. The Hon'ble Court proceeded to caution the High Courts against transgressing into the jurisdiction of the other High Courts merely on the ground of some insignificant event connected with the cause of action taking place within the territorial limits of the High Court to which the litigant approaches at his own choice or convenience. The Hon'ble Court proceeded to observed as under: If an impression gains ground that even in cases which fall outside the territorial jurisdiction of the Court, certain members of the Court would be willing to exercise jurisdiction on the plea that some event, however trivial and unconnected with the cause of action had occurred within the jurisdiction of the said Court, litigants would seek to abuse the process by carrying the cause before such members giving rise to avoidable suspicion. That would lower the dignity of the institution and put the entire system to redicule. That would lower the dignity of the institution and put the entire system to redicule. We are greatly pained to say so but if we do not strongly deprecate the growing tendency we will, we are afraid, be failing in our duty to the institution and the system of administration of justice. We do hope that we will not have another occasion to deal with such a situation. 9. In the Navinchandra's case (supra) the Hon'ble Court observed that so far as the question of territorial jurisdiction with reference to a criminal offence is concerned, the main factor to be considered is the place where the alleged offence was committed. In this regard, the Hon'ble Court observed as under: We make it clear that the mere fact that FIR was registered in a particular State is not the sole criterion to decide that no cause of action has arisen even partly within the territorial limits of jurisdiction of another State. Nor are we to be understood that any person can create a fake cause of action or even concoct one by simply jutting into the territorial limits of another State or by making a sojourn or even a permanent residence therein. The place of residence of the person moving a High Court is not the criterion to determine the contours of the cause of action in the particular writ petition. The High Court before which the writ petition is filed must ascertain whether any part of the cause of action has arisen within the territorial limits of its jurisdiction. It depends upon the facts in each case. 10. Coming to the decision of this Court relied upon by the Petitioners in the case of Aditya Sponge & Power Pvt. Ltd. and Anr. v. State of Orissa and Ors., reported in 2007(I) OLR 65, the FIR was lodged in the State of Himachal Pradesh for commission of offences under Sections 420/465/468/471/120(B)I.P.C. against the Managing Director and another employee of the Company, having its registered office at Bhubaneswar and its factory at Dubalpal in the district of Keonjhar, in the State of Orissa. The accused-Petitioners approached this Court under Articles 226 and 227 of the Constitution for quashing of the criminal proceeding initiated against them under the said FIR in the State of Himachal Pradesh. The accused-Petitioners approached this Court under Articles 226 and 227 of the Constitution for quashing of the criminal proceeding initiated against them under the said FIR in the State of Himachal Pradesh. This Court on the basis of the allegations made in the FIR and the supporting materials, came to find that a major part of the cause of action arose within the State of Orissa and keeping in view the ratio laid down by the apex Court in Navinchandras' case (supra), held that this Court has the territorial jurisdiction to entertain the writ petition under Article 226 of the Constitution. The question of territorial jurisdiction of a High Court under Article 226(2) of the Constitution again came up for consideration before the apex Court in the case of Union of India and Others Vs. Adani Exports Ltd. and Another. The Hon'ble Court taking note of the earlier decisions rendered in Oil and Natural Gas Commission's case AIR 1994 SCW 3287 and Navinchandra N. Majithia Vs. State of Maharashtra and Others, ), observed as follows: It is seen from the above that in order to confer jurisdiction on a High Court to entertain a writ petition or a special civil application as in this case, the High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the court to decide a dispute which has, as least in-part, arisen within its jurisdiction. It is clear from the I above judgment that each and every fact pleaded by the Respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court's territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned. xx xx xx. 11. In a later decision of the apex Court in the case of Y. Abraham Ajith and Others Vs. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned. xx xx xx. 11. In a later decision of the apex Court in the case of Y. Abraham Ajith and Others Vs. Inspector of Police, Chennai and Another Hon'ble Court while dealing with the question of the cause of action in a criminal case, proceeded to observe that the crucial question is whether any part of the cause of action arises within the jurisdiction of the Court concerned. In terms of Section 177 Code of Criminal Procedure, it is the place where the offence was committed. In a sense it is the cause of action for initiation of proceeding against the accused while in civil cases, normally the expression 'cause of action' is used, in criminal cases, as stated in Section 177 Code of Criminal Procedure, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression 'cause of action' is therefore not a stranger to a criminal case. The Hon'ble Court proceeded to observed 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 wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously, the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in "cause of action. 12. Compendiously, the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in "cause of action. 12. The Petitioners has further relied upon the decision of the apex Court in the case of Biswanath Gupta v. State of U.P., reported in AIR 2007 SCW 2184 , wherein the Hon'ble Court while dealing with a case u/s 364-A IPC, referred to Section 181(2) Code of Criminal Procedure and came to hold that any offence of kidnapping or abduction may be enquired or tried by a court within whose local jurisdiction the person was kidnapped or abducted or was conveyed or concealed or detained. Therefore in a case of kidnapping and abduction, the local jurisdiction shall be where the person concerned has been abducted or kidnapped or was conveyed or concealed or detained. The Hon'ble Court on the basis of evidence on record came to hold that as the victim was abducted from Lucknow and demand for ransom had been raised at Haldwani, Nainital, where the threat to life of the victim was given and the demand for money was raised and the victim was ultimately put to death at Unnao, trial of the case could be conducted in any of the local jurisdiction of the said three places, i.e., at Haldwani, Nainital, in the State of Uttaranchal or in Lucknow or Unnao, in the State of Uttar Pradesh. 13. In the present case, admittedly as no part of the cause of action arises in the State of Orissa, except the fact that the Petitioners are at present residing at Puri and admittedly the alleged offence u/s 366 IPC was committed at Shillong, in the State of Meghalaya and no act or any event in connection with alleged offence having taken place within the State of Orissa, this Court has no territorial jurisdiction to entertain the writ petition. 14. 14. In view of the foregoing facts and circumstances and the principles of law as discussed above, the inevitable conclusion is that no part of the cause of action having arose in the State of Orissa, this Court has no jurisdiction to deal with the matter, in exercise of its powers under Article 226(2) of the Constitution read with Section 482 Code of Criminal Procedure and therefore the present writ petition is not maintainable and the same is accordingly dismissed. It is made clear that this Court has not considered the merits of the case and no opinion is expressed in that regard. The W.P. (Crl.) is accordingly dismissed.