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2012 DIGILAW 1250 (PAT)

Kundan Prasad Singh v. Union of India

2012-09-06

SHIVA KIRTI SINGH, VIKASH JAIN

body2012
Oral ORDER SHIVA KIRTI SINGH, J. Re: I.A. No. 4687 of 2012: Heard the parties in respect of IA No. 4687 of 2012 filed under Section 5 of the Limitation Act. 2. In the facts of the case delay of 239 days in preferring this appeal is condoned. The I.A. stands allowed. Re: L.P.A. No. 1045 of 2012: Heard the parties. 2. The writ petitioner has preferred this Appeal and argued the matter in person. By the order under appeal dated 23.9.2011 the learned Writ Court has dismissed the writ petition bearing CWJC No. 5677 of 2009 by finding that this Court has no territorial jurisdiction to grant the relief claimed by the appellant in the writ petition. The prayer in the writ petition is for directing the respondents to get the investigation done by the Central Bureau of Investigation or to get a judicial probe done into the killing of Rahul Raj, son of the petitioner/appellant herein in an alleged fake encounter by the Mumbai Police on 27.10.2008. 3. Since the writ petition has been dismissed only on the ground of lack of territorial jurisdiction, it is not necessary to consider the merits of the case. So far as territorial jurisdiction is concerned, it is not in dispute that the killing of Rahul Raj took place in Mumbai within the State of Maharashtra. Police case arising from the said incident was registered at Mumbai and investigation was completed by the Mumbai Police. The only plea of the appellant to show that part of cause of action arose within the State of Bihar is to the effect that body of Rahul Raj was received by the appellant in Bihar and that he suffered mental torture on account of killing of his son by the Mumbai Police in a fake encounter. 4. Reliance has been placed by the appellant on a judgment of the Apex Court in the case of Navinchandra N.Majithia vs. State of Maharashtra and Others, 2000 (7) SCC 640 . No doubt in paragraph 43 of that judgment the Supreme Court has made it clear that the mere fact that FIR was registered in a particular State is not the sole criterion to decide the cause of action. No doubt in paragraph 43 of that judgment the Supreme Court has made it clear that the mere fact that FIR was registered in a particular State is not the sole criterion to decide the cause of action. But in the same paragraph it was further clarified that the place of residence of the person moving the High Court is not the criterion to determine the cause of action. Hence, it is the duty of the High Court where a writ petition is filed to ascertain whether any part of the cause of action has arisen within the territorial limits of its jurisdiction. There is no doubt that cause of action depends upon facts in each case. 5. The aforesaid judgment has been discussed by the Writ Court along with several other authorities of the Supreme Court. Non-essential facts cannot constitute cause of action. It is well understood in law that cause of action consists of a bundle of essential facts which are required to be proved for success in any Suit or proceeding. 6. Another judgment cited by the appellant is in the case of Parasnath Tiwari and another vs. Central Reserve Police Force and another, reported in (2010) 3 SCC 111 . In that case compensation was allowed for mental agony suffered by parents of a CRPF Constable killed accidentally by a fellow Constable due to mistaken identity as an intruder. In that case several factors were considered by the Apex Court to enhance the compensation from Rs.1.00 lakh to Rs.2.00 lakhs. However, the issue of jurisdiction was neither raised nor decided. 7. In the present case so far as handing over the dead body is concerned, the plea of Maharashtra Police is that it was handed over to the brother of the deceased at Mumbai. That fact has been controverted. Even if body of the victim is handed over to the relatives of the victim at the place of their residence it is difficult to hold that this fact is an essential fact to constitute a cause of action when the issue is whether the incident at Mumbai was on account of fake encounter by the Mumbai Police or not. So far as mental torture is concerned, that is bound to be faced by the relatives and friends of a victim wherever they may be residing. So far as mental torture is concerned, that is bound to be faced by the relatives and friends of a victim wherever they may be residing. If that factor is taken as a cause of action it will become highly uncertain and will be depending upon mere residence of the friends or family members. 8. In our considered view, the Writ Court has considered the issue of territorial jurisdiction correctly in the light of various relevant judgments of the Apex Court. Hence, we find no good reason to interfere. The appeal is therefore, dismissed.