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2013 DIGILAW 130 (PAT)

Deepa Kumar v. Union of India

2013-01-29

ASHWANI KUMAR SINGH

body2013
ORDER The prayer of the petitioners in paragraph 1 of the writ petition is as follows:– “1. That the petitioners invoke the jurisdiction of this Hon’ble Court under Articles 226 and 227 of the Constitution of India for restraining the respondent investigating agency from harassing the petitioners and repeatedly requiring their presence at Mumbai to produce document/articles without specifying the details of the same and calling Petitioner No.2 to be a witness against himself in violation of their fundamental rights guaranteed under Article 20(3) of the Constitution of India and Sections 91 & 160(1) of the Code of Criminal Procedure; and further, for issuance of an appropriate writ, order or direction commanding the respondents to deseal the bank lockers of petitioner no.1 in the two branches of State Bank of India located in Patna, as also for transferring the investigation/ proceedings arising out of FIR bearing No.RC/BA-1/2011/A 0009 to Patna.” 2. The case RC BAI/2011/A0009 under sections 13(2) read with 13(1)(e) of Prevention of Corruption Act, 1988 was registered on 28.2.2011 against petitioner no.2, the then Inspector General of Police-cum-Security Commissioner, Railway Protection Force, Western Railways, Church Gate, Mumbai on the basis of source information. 3. In the FIR it is alleged that petitioner no.2, being a public servant, had acquired various assets, both moveable and immoveable, amounting to Rs.4,88,45,747/- in the name of himself and his dependant family members during the check period i.e. 30.9.2006 to 30.11.2010, which is disproportionate to his known sources of income and for which he has no satisfactory explanation to give. 4. It is to be noted that a counter affidavit has been filed on behalf of respondent no.3 in which it has categorically been stated that after conclusion of investigation charge-sheet has already been submitted before the court of the learned Special Judge, Greater Mumbai, vide Special Case No.59 of 2012, on 28.8.2012. The case is now pending in the court of Special Judge, Greater Mumbai. 5. After service of copy of the counter affidavit on the counsel for the petitioners on 16.10.2012, the petitioners have filed an interlocutory application vide I.A. No.1911 of 2012 seeking amendment in the prayer made in the main writ petition. By way of amendment, the petitioners pray to quash the entire proceedings of the aforesaid case. 6. 5. After service of copy of the counter affidavit on the counsel for the petitioners on 16.10.2012, the petitioners have filed an interlocutory application vide I.A. No.1911 of 2012 seeking amendment in the prayer made in the main writ petition. By way of amendment, the petitioners pray to quash the entire proceedings of the aforesaid case. 6. Mr.Bipin Kumar Sinha, learned counsel appearing on behalf of the Central Bureau of Investigation (hereinafter as “C.B.I.”), has raised a preliminary objection that the present writ petition is not maintainable as this court lacks territorial jurisdiction over the case. 7. In reply, learned counsel for the petitioners, submits that the petitioners are residents of Patna. Search and seizure in relation to the aforesaid FIR has taken place initially at Patna and sealing of lockers belonging to petitioner no.1 which are in two branches of the State Bank of India located in Patna have been effected by the Inspector of C.B.I., Patna. The petitioners have earlier been questioned by the C.B.I. authorities at Patna. The notices dated 17.7.2012 and 27.7.2012 purported to be under section 91 of the Code of Criminal Procedure have also been served upon them in Patna. Thus, a substantial part of cause of action has arisen within the jurisdiction of this court and, as such, this court has the territorial jurisdiction to entertain the present writ petition and pass appropriate orders. 8. Learned counsel for the petitioners submits that the case was instituted on the ground of source information without any preliminary enquiry and founded on completely false and baseless premises. Search and seizure were made in the most arbitrary manner in violation of the petitioners’ human rights. The petitioners were made to starve while conducting the said search from evening to early hours in the morning. The vested interest made the alleged FIR, search and seizure a media event of propaganda, all to the detrimental to the petitioners, and in gross violation of their legal and constitutional rights. 9. It is further contended that to build a facade of a disproportionate asset case, the C.B.I. conducted raids on 1.3.2011 on several properties with which the petitioners had no concern, alleging that the same were the properties standing in the name of petitioner no.2. In sum and substance, the contention of the petitioners is that the FIR in question has maliciously been instituted and is based on extraneous consideration. 10. In sum and substance, the contention of the petitioners is that the FIR in question has maliciously been instituted and is based on extraneous consideration. 10. Learned counsel for the petitioners further submits that the jurisdiction to issue a writ is conferred upon the High Court under Article 226 of the Constitution of India. Article 226(2), however, provides that if the cause of action had arisen in more than one court, any of the courts where part of cause of action arises will have the jurisdiction to entertain the writ petition. In this regard he places his reliance on a judgment of the Hon’ble Supreme Court in case of Navinchandra N. Majithia Vs. State of Maharashtra since reported in A.I.R.2000 SC 2966. 11. In Navin Chandra N. Majithia (supra), the apex Court held that the power conferred on the High Court under Article 226 could as well be exercised by any High Court exercising jurisdiction in relation to the territories within which “cause of action, wholly or in part, arises” and it did not matter that the seat of the authority concerned is outside the territorial limits of the jurisdiction of that High Court as the amendment by which clause (2) was inserted to the said Article was aimed at widening the area for reaching the writs issued by different High Courts. 12. Learned counsel appearing on behalf of the C.B.I. submits that allegation of malicious prosecution of the petitioners is not true. The C.B.I. has made a fair and impartial investigation. In course investigation, it has transpired that during the period intervening from 30.9.2006 to 30.11.2010 by abusing his official position the petitioner no.1 had acquired huge assets in his name and in the name of his family members which is disproportionate to his known source of income to the tune of Rs.91,06,780/- for which he could not satisfactorily account for. It has also contended that petitioner no.1 is a house wife having no independent source of income. She has aided and abetted the petitioner no.2 in amassing the asset by illegal means. 13. Learned counsel for the C.B.I. in support of his contention places his reliance on the judgment of Hon’ble Supreme Court in case of State of Rajasthan and Others Vs. M/s Swaika Properties and another since reported in AIR 1985 SC 1289 . She has aided and abetted the petitioner no.2 in amassing the asset by illegal means. 13. Learned counsel for the C.B.I. in support of his contention places his reliance on the judgment of Hon’ble Supreme Court in case of State of Rajasthan and Others Vs. M/s Swaika Properties and another since reported in AIR 1985 SC 1289 . In the said case it was held by the apex Court that since there was no cause of action either wholly or partly arose on territorial limits of Calcutta High Court, the learned Single Judge had no jurisdiction to issue rule nisi on the petition filed under Article 226 of the Constitution of India. 14. In order to appreciate the rival submissions made on behalf of the parties, it would be appropriate to quote clause (2) of Article 226 of the Constitution of India which reads as under:– “226(2) 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 those territories.” 15. In case of State of Rajasthan and others Vs. M/s Swaika Properties and another (supra), the Hon’ble Supreme Court opined that mere service of a notice would not give rise to any “cause of action” unless service of notice was an integral part of the “cause of action”. 16. In Oil and Natural Gas Commission Vs. Utpal Kumar Basu since reported in (1994)4 SCC 711 , the Hon’ble Supreme Court has held that answer to the question whether service of notice is an integral part of the “cause of action” within the meaning of Article 226(2) of the Constitution of India must depend upon the nature of the impugned order giving rise to a “cause of action”. 17. In Aligarh Muslim University Vs. Vinay Engineering Enterprises (P) Ltd. since reported in (1994)4 SCC 710 , the Hon’ble Supreme Court has held as hereunder in paragraph 2:– “2. We are surprised, not a little, that the High Court of Calcutta should have exercised jurisdiction in a case where it had absolutely no jurisdiction. 17. In Aligarh Muslim University Vs. Vinay Engineering Enterprises (P) Ltd. since reported in (1994)4 SCC 710 , the Hon’ble Supreme Court has held as hereunder in paragraph 2:– “2. We are surprised, not a little, that the High Court of Calcutta should have exercised jurisdiction in a case where it had absolutely no jurisdiction. The contracts in question were executed at Aligarh, the construction work was to be carried out at Aligarh, even the contracts provided that in the event of dispute the Aligarh court alone will have jurisdiction. The arbitrator was from Aligarh and was to function there. Merely because the respondent was a Calcutta-based firm, the High Court of Calcutta seems to have exercised jurisdiction where it had none by adopting a queer line of reasoning. We are constrained to say that this is a case of abuse of jurisdiction and we feel that the respondent deliberately moved the Calcutta High Court ignoring the fact that no part of the cause of action had arisen within the jurisdiction of that Court. It clearly shows the litigation filed in the Calcutta High Court was thoroughly unsustainable.” 18. In Union of India Vs. Adani Exports Ltd. since reported in (2002) 1 SCC 567 , the Hon’ble Supreme Court held that in order to confer jurisdiction on a High Court to entertain a writ petition it must disclose that the integral facts pleaded in support of the ”cause of action” do constitute a cause so as to empower the Court to decide the dispute and the entire or a part of it arose within its jurisdiction. 19. In National Textile Corpn. Ltd. and others Vs. M/s Haribox Swalram and others since reported in (2004) 9 SCC 786 , the Hon’ble Supreme Court in paragraph 12.1 held as under:– “12.1 As discussed earlier, the mere fact that the writ petitioner carries on business at Calcutta or that the reply to the correspondence made by it was received at Calcutta in not an integral part of the cause of action and, therefore, the Calcutta High Court had no jurisdiction to entertain the writ petition and the view to the contrary taken by the Division Bench cannot be sustained. In view of the above finding, the writ petition is liable to be dismissed.” 20. In Eastern Coalfields Ltd. and others Vs. In view of the above finding, the writ petition is liable to be dismissed.” 20. In Eastern Coalfields Ltd. and others Vs. Kalyan Banerjee since reported in (2008) 3 SCC 456 , the respondent was an employee of Eastern Coalfields Ltd. in the Mugma area in the district of Dhanbad, Jharkhand. His services were terminated at Mugma, Jharkhand. He filed a writ petition before the Calcutta High Court. A preliminary objection was raised in regard to the jurisdiction of the Calcutta High Court. The learned Single Judge of the Calcutta High Court referred the matter to the Division Bench. The Division Bench opined that the Calcutta High Court had no territorial jurisdiction to entertain the said writ petition. A review application was filed thereagainst. The said review application was allowed holding that the Division Bench had not taken into consideration two other decisions of the Division Bench of the said court. The appellant challenged the judgment of the Division Bench before the Hon’ble Supreme Court. The Hon’ble Supreme Court after hearing the parties in paragraph 13 held as under:– “13. In view of the decision of the Division Bench of the Calcutta High Court that the entire cause of action arose in Mugma area within the State of Jharkhand, we are of the opinion that only because the head office of the appellant Company was situated in the State of West Bengal, the same by itself will not confer any jurisdiction upon the Calcutta High Court, particularly when the head office had nothing to do with the order of punishment passed against the respondent.” 21. In South East Asia Shipping Co. Ltd. Vs. Nav Bharat Enterprises Pvt. Ltd. and Others since reported in (1996) 3 SCC 443 , the issue in question before the apex Court was as to whether the Delhi High Court had jurisdiction to entertain the suit. While deciding the issue, the apex Court in paragraphs 2, 3 and 4 held as under:– “2.The only controversy is whether the Delhi High Court has jurisdiction to entertain the suit. It is an admitted position that the contract was executed in Bombay. It is also an admitted position that the performance of obligations and liabilities under the contract was required to be done in Bomaby inasmuch as cargo of livestock was to be transported in the ship from Kandla to Damman or Jeddah. It is an admitted position that the contract was executed in Bombay. It is also an admitted position that the performance of obligations and liabilities under the contract was required to be done in Bomaby inasmuch as cargo of livestock was to be transported in the ship from Kandla to Damman or Jeddah. It is also an admitted position that in furtherance of the execution of the contract at Bombay, the respondents had executed the bank guarantee at Delhi and had transmitted it to Bombay for performance of the contract. The question, therefore, is whether any part of the cause of action had arisen in Dehli. The learned counsel for the respondents had relied upon a judgment of this court in A.B.C. Laminart (P) Ltd. Vs. A.P.Agencies, (1989)2 SCC 163 to contend that since part of the cause of action had arisen in Delhi, the High Court on the original side has jurisdiction to entertain the suit. We are unable to accept the contention.” “3. It is settled law that cause of action consists of bundle of facts which give cause to enforce the legal injury for redress in a court of law. The cause of action means, therefore, every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or would arise. In view of the admitted position that contract was executed in Bombay, i.e., within the jurisdiction of the High Court of Bombay, performance of the contract was also to be done within the jurisdiction of the Bombay High Court; merely because bank guarantee was executed at Delhi and transmitted for performance to Bombay, it does not constitute a cause of action to give rise to the respondent to lay the suit on the original side of the Delhi High Court. The contention that the Division Bench was right in its finding and that since the bank guarantee was executed and liability was enforced from the bank at Delhi, the Court got jurisdiction, cannot be sustained.” “4. The contention that the Division Bench was right in its finding and that since the bank guarantee was executed and liability was enforced from the bank at Delhi, the Court got jurisdiction, cannot be sustained.” “4. We, therefore, hold that the learned Single Judge was right in his conclusion that no part of the cause of action had arisen within the jurisdiction on the original side of the High Court of Delhi and direct to return the plaint for presentation to the proper court.” 22. In the light of the law laid down by the Hon’ble Supreme Court as discussed hereinabove, it is to be seen in the present case as to whether any “cause of action” for the purpose of Article 226(2) of the Constitution of India had arisen within the territory of Bihar. 23. The question whether or not “cause of action” wholly or in part has arisen within the territorial limits of this court has to be decided in the light of the nature and character of the proceeding. In order to maintain a writ petition, the petitioners must establish that a legal right claimed by them has either been infringed or is threatened to be infringed by the respondent within the territorial limits of this court. 24. Admittedly, the FIR has been instituted by the C.B.I. at Mumbai. The case was investigated by the officers of the C.B.I., Anti Corruption Branch, Mumbai. On conclusion of investigation, the C.B.I. has submitted its report in the form of charge-sheet before the Learned Special Judge, Greater Mumbai. The allegation is that the respondent no.2, being a public servant, while working as Inspector General-cum-Chief Security Commissioner of Railways Protection Force, Western Railways, during the period from 30.9.2006 to 30.11.2010, abused his official position by indulging in corrupt practices and thereby acquired assets in his name and in the name of his family members to the tune of Rs. 90,90,536/-, which is disproportionate to his known and legal source of income for which he could not satisfactorily account for. Thus, apparently, the entire “cause of action” has arisen either at Mumbai or in the State of Maharashtra over which this court has got no territorial jurisdiction. 25. 90,90,536/-, which is disproportionate to his known and legal source of income for which he could not satisfactorily account for. Thus, apparently, the entire “cause of action” has arisen either at Mumbai or in the State of Maharashtra over which this court has got no territorial jurisdiction. 25. In my considered opinion, simply because the search and seizure has been carried out at Patna in connection with the said case or because the petitioners, being residents of Patna, have been questioned by the C.B.I. authorities at Patna, it cannot be said that part of the “cause of action” has arisen at Patna. 26. In view of the discussions made hereinabove, it is not necessary for this court to enter into the merit of the case. In the facts and circumstances of the case and the materials available on record, I am of the opinion that this court has got no territorial jurisdiction in the matter. 27. Accordingly, the petition is dismissed as not maintainable. Needless to say that the petitioners would be at liberty to move before the court having competent jurisdiction for the redressal of their grievances.