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2014 DIGILAW 1501 (HP)

Swaran Kalra v. State Of H. P.

2014-10-21

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. The petitioners have approached this Court under Section 482 Cr.P.C. for quashing the proceedings and order passed by the learned Judicial Magistrate Ist Class(II), Kangra, District Kangra, Himachal Pradesh, who vide order dated 25.06.2012 issued process against the petitioners in Complaint No. 16-I/2014 filed under Sections 186 and 189 IPC. 2. Complaint was filed by respondent No. 2, who at the relevant time was posted as ASI, Police Station, Nagrota Bagwan, District Kangra, against the petitioners under Sections 186 and 189 IPC alleging that when he along with other police officials visited Dehradun (Uttrakhand) as had been directed by the Court of learned SDM, Kangra, he was obstructed from discharging his duties by a mob of 50-60 persons which included the petitioners. It is averred that he had gone to Dehradun for search of house of one Shri Kamal, son of Shri Lekh Raj as the allegation against him was that he had confined one Renu daughter of Vijay Giri, there. 3. In the complaint filed by respondent No. 2, he had alleged that the matter regarding obstruction having been created by the petitioners had been reported by him at Police Station, Khurbura, Dehradun vide DD No. 42 on 10.05.2012, but no action thereupon was taken. He then lodged a report against the petitioners in Police Station, Nagrota Bagwan, vide DD No. 43 dated 11.05.2012. The respondent No. 2 thereafter preferred this complaint in the Court of learned Judicial Magistrate Ist Class (II), Kangra, who vide impugned order dated 25.06.2012 issued process against the petitioners under Sections 186 and 189 IPC. 4. The petitioners have questioned the order passed by the learned Magistrate primarily on the ground of jurisdiction as it is claimed that since the alleged offence, if at all committed, had been committed at Dehradun, it was the Court at Dehradun alone, who would have jurisdiction to try the complaint. 5. The respondents filed their reply wherein the factual position was not disputed, however, it was stated that after the report had been made by the respondent No. 2 at Police Station, Khurbura, upon which no legal action was taken against the petitioners from 10.05.2012 to 24.03.2014, therefore, proceedings were initiated against the petitioners before the Judicial Magistrate at Kangra. 5. The respondents filed their reply wherein the factual position was not disputed, however, it was stated that after the report had been made by the respondent No. 2 at Police Station, Khurbura, upon which no legal action was taken against the petitioners from 10.05.2012 to 24.03.2014, therefore, proceedings were initiated against the petitioners before the Judicial Magistrate at Kangra. It is submitted that the search warrants were issued by the Sub Divisional Magistrate, Kangra and it was during the process of execution of this warrants that the petitioners had created nuisance and caused interruption, therefore, the Magistrate at Kangra had jurisdiction to try and hear the complaint. It is lastly claimed that SHO, Police Station, Kotwali, District Dehradun vide Annexure SP/Kangra-B reported that no legal action against the petitioners on 10.05.2012 had been taken in accordance with law under Sections 186 and 189 IPC, but such action may be taken against the petitioners in the Court at Kangra. 6. I have heard Shri Balwant Kukreja, learned counsel for the petitioners and Ms. Meenakshi Sharma, learned Additional Advocate General with Ms. Parul Negi, learned Deputy Advocate General, for the respondents. 7. At the outset, it may be observed that the reply filed by the respondents to say the least is not at all satisfactory and leaves much to desire. Could the SHO, Police Station, Kotwali, vide his letter Annexure SP/Kangra-B, vest the Court of learned Magistrate at Kangra with jurisdiction which was otherwise not vested in him? SHO, Police Station, Dehradun, was not only obliged, but legally bound to have taken DD No. 42 dated 10.05.2012 to its logical end. 8. Chapter-XIII of the Code of Criminal Procedure, 1973 (for short 'Code') relates to jurisdiction of Criminal Courts in inquiries and trials. Section 177 of the Code deals with the place where ordinarily the inquiry and trial would be held and reads thus:- "177. Ordinary place of inquiry and trial.-Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed." 9. It is apparent from a bare perusal of the aforesaid Section that every offence is required to be ordinarily enquired into and tried by a Court within whose jurisdiction it was committed. Undisputedly, even as per allegations set out in the complaint, the alleged offences had been committed at Dehradun. It is apparent from a bare perusal of the aforesaid Section that every offence is required to be ordinarily enquired into and tried by a Court within whose jurisdiction it was committed. Undisputedly, even as per allegations set out in the complaint, the alleged offences had been committed at Dehradun. The mere fact that warrants of search had been issued by the Court at Kangra would not clothe the Court at Kangra with jurisdiction to entertain the complaint as this would apparently be in violation and conflict with Section 177 of the Code. 10. It has to be remembered that Civil law concepts are not strictly applicable to Criminal law when they specially relate to cause of action or place of suing. This was so held in a recent judgment by Hon'ble three judges bench of Hon'ble Supreme Court in Dashrath Rupsingh Rathod Vs. State of Maharashtra, (2014) 9 SCC 129 , in the following terms:- "CIVIL LAW CONCEPTS NOT STRICTLY APPLICABLE 14. We have already cautioned against the extrapolation of civil law concepts such as "cause of action" onto criminal law. Section 177 of the CrPC unambiguously states that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. "Offence", by virtue of the definition ascribed to the word by Section 2(n) of the CrPC means any act or omission made punishable by any law. Halsbury states that the venue for the trial of a crime is confined to the place of its occurrence. Blackstone opines that crime is local and jurisdiction over it vests in the Court and Country where the crime is committed. This is obviously the raison d'etre for the CrPC making a departure from the CPC in not making the "cause of action" routinely relevant for the determination of territoriality of criminal courts. The word "action" has traditionally been understood to be synonymous to "suit", or as ordinary proceedings in a Court of justice for enforcement or protection of the rights of the initiator of the proceedings. "Action, generally means a litigation in a civil Court for the recovery of individual right or redress of individual wrong, inclusive, in its proper legal sense, of suits by the Crown"-[Bradlaugh v. Clarke [8 Appeal Cases 354 p. 361]. "Action, generally means a litigation in a civil Court for the recovery of individual right or redress of individual wrong, inclusive, in its proper legal sense, of suits by the Crown"-[Bradlaugh v. Clarke [8 Appeal Cases 354 p. 361]. Unlike civil actions, where the Plaintiff has the burden of filing and proving its case, the responsibility of investigating a crime, marshalling evidence and witnesses, rests with the State. Therefore, while the convenience of the Defendant in a civil action may be relevant, the convenience of the so called complainant/victim has little or no role to play in criminal prosecution. Keeping in perspective the presence of the word "ordinarily" in Section 177 of CrPC, we hasten to adumbrate that the exceptions to it are contained in the CrPC itself, that is, in the contents of the succeeding Section 178. The CrPC also contains an explication of "complaint" as any allegation to a Magistrate with a view to his taking action in respect of the commission of an offence; not being a police report. Prosecution ensues from a Complaint or police report for the purpose of determining the culpability of a person accused of the commission of a crime; and unlike a civil action or suit is carried out (or 'prosecuted') by the State or its nominated agency. The principal definition of "prosecution" imparted by Black's Law Dictionary 5th Edition is "a criminal action; the proceeding instituted and carried on by due process of law, before a competent Tribunal, for the purpose of determining the guilt or innocence of a person charged with crime." These reflections are necessary because Section 142(b) of the NI Act contains the words, "the cause of action arises under the proviso to Section 138", resulting arguably, but in our opinion irrelevantly, to the blind borrowing of essentially civil law attributes onto criminal proceedings. We reiterate that Section 178 admits of no debate that in criminal prosecution, the concept of "cause of action", being the bundle of facts required to be proved in a suit and accordingly also being relevant for the place of suing, is not pertinent or germane for determining territorial jurisdiction of criminal Trials. Section 178, CrPC explicitly states that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. Section 179 is of similar tenor. Section 178, CrPC explicitly states that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. Section 179 is of similar tenor. We are also unable to locate any provision of the NI Act which indicates or enumerates the extraordinary circumstances which would justify a departure from the stipulation that the place where the offence is committed is where the prosecution has to be conducted. In fact, since cognizance of the offence is subject to the five Bhaskaran components or concomitants the concatenation of which ripens the already committed offence under Section 138 NI Act into a prosecutable offence, the employment of the phrase "cause of action" in Section 142 of the NI Act is apposite for taking cognizance, but inappropriate and irrelevant for determining commission of the subject offence. There are myriad examples of the commission of a crime the prosecution of which is dependent on extraneous contingencies such as obtainment of sanction for prosecution under Section 19 of the Prevention of Corruption Act 1988. Similar situation is statutorily created by Section 19 of the Environmental Protection Act 1986, Section 11 of the Central Sales Tax Act 1956, Section 279 of the Income Tax Act, Sections 132 and 308, CrPC, Section 137 of the Customs Act etc. It would be idle to contend that the offence comes into existence only on the grant of permission for prosecution, or that this permission constitutes an integral part of the offence itself. It would also be futile to argue that the place where the permission is granted would provide the venue for the trial. If sanction is not granted the offence does not vanish. Equally, if sanction is granted from a place other than where the crime is committed, it is the latter which will remain the place for its prosecution." 11. It cannot be disputed that an order passed in a case, vitiated by the absence of jurisdiction, will be a nullity. Looking into the uncontroverted allegations set out in the complaint and accepted them to be true on its face value, it can safely be concluded that no part of the alleged offence was committed within the jurisdiction limits of any of the Courts in Himachal Pradesh. Therefore, the learned Magistrate at Kangra had no jurisdiction to entertain much less issuing process in the complaint instituted by the respondent No. 2. Therefore, the learned Magistrate at Kangra had no jurisdiction to entertain much less issuing process in the complaint instituted by the respondent No. 2. 12. In view of the aforesaid discussion, the impugned order dated 25.06.2012 issuing process against the petitioners and further consequent proceedings pending before the learned Judicial Magistrate Ist Class (II), Kangra in Complaint No. 16-I/2014, titled State of H.P. through Paramjit Singh versus Swaran Kalra and others, under Sections 186 and 189 IPC, are quashed and set aside. 13. Accordingly, the petition stands allowed in the aforesaid terms. Pending application, if any, also stands disposed of.