TaxTMI 
TaxTMI 
2017 (8) TMI 1593
X X X X Extracts X X X X
X X X X Extracts X X X X
....respondent relating to the Notice Under Section 41-A(1) r/w.4(1)(b) Cr.PC dated 04.07.2017 having Ref.No.5290 issued to the petitioner and quash the same as without jurisdiction, vitated by legal malafides and in contravention of the directions issued by the Hon'ble Supreme Court in the case of Arnesh Kumar V. State of Bihar reported in 2014 (8) SCC 273. 3. Writ Petition in WP.SR.No.69249 of 2017 is filed to call for the records relating to the FIR registered by the 1st respondent under Section 154 Cr.PC having Ref.No.RC 2202017 E 011 dated 15.05.2017 before the Special Judge, CBI Cases, Patiala House Courts, New Delhi and consequential notices dated 04.07.2017, having Ref.No.5294/RC 11/2017/EOU-IV/EO-II, 5292/RC 11/2017/EOU-IV/EO-II, 5293/RC 11/2017/EOU-IV/EO-II, issued to the petitioners 4, 5 and 6 by the 2nd respondent under Section 160 Cr.PC and quash the same as without jurisdiction, abuse of power and vitiated by malafides. 4. While scrutinizing the papers, the Registry returned all the petitions to the counsel for the petitioners for the following clarification:- "It may be stated as to how the writ petitions are maintainable under Article 226 of the Const....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... even as per column 5 of the FIR stating that the place of occurrence is Delhi, Mumbai and Chennai; the search pursuant to the search warrant issued by the Special Court, CBI, New Delhi was conducted in Chennai; and the alleged illegal gratification of Rs. 10 lakhs being the cause of action for the FIR was received in Chennai. This Hon'ble court has jurisdiction to entertain the instant writ petition since part of the cause of action arose within the jurisdiction of this Hon'ble Court". In Navinchandra N. Majithia vs. State of Maharashtra and others reported in (2000) 7 SCC 640, the Hon'ble Supreme Court has held that High Court under Article 226 of the Constitution of India will have jurisdiction to quash a FIR if part of cause of action arises within the jurisdiction of the said High Court even though the FIR is registered in a different state. Kindly refer Para's 27, 43, 44 and 45. In Pepsi Foods ltd. and another Vs. Special Judicial Magistrate reported in 1998 (5) SCC 749, the Hon'ble Supreme court examined the scope of the High Court's power to quash the criminal proceedings in exercise of Article 226 and 227 of the Constitution of Ind....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e the question of territorial jurisdiction first before arguing the case in detail and insisted upon other side not to touch merits of the case. 9. On 28.07.2017, the learned Special Public Prosecutor for CBIcases, High Court Madras seeks time, at his request, the case was listed on 10.08.2017. In the meanwhile, the Additional Solicitor General filed Short affidavit and preliminary objections before the Registry on 08.08.2017, itself. On 10.08.2017, both the counsel argued the matter at length with regard to territorial jurisdiction and seeks time till 16.08.2017, for submitting the written arguments. On 16.08.2017, the counsel for the petitioners submitted written submissions and the learned Additional Solicitor General submitted short affidavit and summary of submissions of hearing dated 10.08.2017. 10. The learned Additional Solicitor General, Government of India would submit that this Court has no territorial jurisdiction as the FIR is registered at Delhi and sent the FIR to the Special Court, CBI cases, Patiala House Courts, New Delhi and now the matter is seized by the Special Court at Delhi, therefore, this Court has no territorial jurisdiction. Now, the Delhi High Cou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in (2014) 9 SCC 129, the concept of "part of cause of action", is absolutely irrelevant and has no application in criminal proceedings and only that High Court would entertain a prayer for quashing which has the supervisory jurisdiction over the jurisdictional court which is monitoring the investigation as per CrPC. 14. In this context, the prayer prayed for in the captioned petition needs to be seen which is as under: "Under these circumstances it is prayed that this Hon'ble Court may be pleased to issue a writ of certiorari or any other writ, order or direction calling for the records relating to the First Information Report filed by the Respondent under section 154 of CrPC having Ref.No.RC2202017 E 0011 dated 15.05.2017 before the Special Judge, CBI cases, Patiala House Courts, New Delhi and quash the same and all proceedings thereto as without jurisdiction, abuse of process and vitiated by malafides and pass such further or other orders as this Hon'ble Court may deem fit and proper so that justice may be done." (Emphasis Supplied) 15. The judgment in the case of Dashrath Rupsingh Rathod v.State of Maharashtra reported in (2014) 9 SCC 129 has cate....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cement of fundamental rights under Part III of the Constitution, they form a part of the basic structure of the Constitution and the attempt on the part of the respondent to oust the Constitutional remedy on a spacious plea of territorial jurisdiction is liable to be rejected. 18. The learned senior counsel would further submit that the scope and meaning of the expression "cause of action" which occurs in clause (2) of the Article 226 is indeed no longer open to debate since in Kusam Ingots & Alloys Ltd V. Union of India - (2004) 6 SCC 254, it has been clearly held that :- "6. Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitute the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively put, it would mean that every thing which, if not proved, gives the defendant an immediate right to judgment, would be part of cause of action. Its importance is beyond any doubt. For every ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 therin. The place of residence of the person moving a High Court is not the criterion to determine the contours of the cause of ation in that 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. (Emphasis added) 21. In the present cases, having regard to the series of facts which are described from paragraphs 11 to 65 of the writ petitions, it would be clear that events have taken place in Chennai not only in relation to the Petitioner, but also in relation to those known to or even remotely associated with the Petitioners (as stated in the FIR itself). The abuse of authority, mala fides, actions, and the invasion of the right to life and liberty of the Petitioner and those....
X X X X Extracts X X X X
X X X X Extracts X X X X
....jurisdiction upon the High Court and cannot be negated by the executive action of registering FIR in Delhi. (iii) The decision in Navin Chandra case has been overruled in Dashrath Rupsingh Rathore V. State of Maharastra - (2014) 9 SCC 129. This is plainly incorrect. Dashrath case dealt with the question of the correctness of the earlier decision in K.Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510 and sought to determine where would a cause of action arise for the purpose of filing a complaint having regard to the provisions of Section 138 and 142 of the Negotiable Instruments Act, 1881. The Supreme Court held that the offence was complete when the dishonour of the cheque took place and conditions relating to the cognizance of an offence must not determined, the place where the offence had been committed for the purpose of the Code of Criminal Procedure. Incidentally, the decision in Dashrath case approved the decision in Navin Chandra Majithia and said that the said decision was one which related to Article 226(2) of the Constitution. Till date the judgment in Navin Chandra Majithia is holds good and has not been overruled. The judgment in Dashrath now sta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ue prerogative writs beyond its territorial jurisdiction (Election Commission, India Vs. Saka Venkata Subbarao, AIR 1953 SC 2010) However, the said position has been legislatively altered by the 15th Constitutional Amendment and later by the 42nd Amendment to the Constitution. Therefore, to sustain the submission of the respondent would be to do violence to Article 226 (2) of the Constitution of India. 25. The issue as to whether the High Court would be competent to issue a Writ of Certiorari, quashing an FIR registered beyond its territorial jurisdiction, when the facts leading to filing of the FIR, falls within the jurisdiction of the said High Court either partly or wholly, came up for the consideration of the Hon'ble Apex Court in the case of Navin Chandra Majithia vs. State of Maharashtra, (2000) 7 SCC 640, wherein an FIR, registered in the State of Megalaya, was assailed in the Bombay High Court. The High Court, dismissed the writ petition on the grounds of territorial jurisdiction, which was appealed against and the Hon'ble Supreme Court, having regard to Article 226(2) of the Constitution of India. 26. It is clear that a writ petition assailing an FIR register....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rned senior counsel appearing for the petitioners in WP.SR.No.69245 of 2017 and Mr.Tushar Mehta, Additional Solicitor General, Government of India appearing for the respondent in all the writ petitions. 30. The facts of the case for the purpose of considering the issue is that, the respondent/CBI has registered FIR against the present petitioners/accused and some unknown persons at New Delhi and produced the FIR before the Special Judge CBI Cases, Patiala House Courts, New Delhi and the investigation is pending. After registering the FIR at Delhi, search was conducted at some places in Chennai and issued summons to the petitioners to appear for enquiry. Hence, the petitioners have filed the present writ petitions before this Court, challenging to quash the FIR and also the notices issued to the petitioners by the CBI on the ground of malafide intention. 31.As stated earlier, at the first instance itself, even both the counsel have no quarrel over the maintainability of the writ petitions under Article 226 of the Constitution of India. But, the learned Additional Solicitor General has raised a preliminary objection with regard to territorial jurisdiction over the impugned crim....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... - (2014) 9 SCC 129 2. S.Ilahahai V. The State of Maharashtra - 2015 (1) MWN (Cr.) 618. 3. S.P.Lakshmanan V. The Judicial Magistrate No.3, Maharashtra and others. 4. Raman Ravi v. State rep by the Officer in charge, J3 Police Station, Thiru vi ka Industrial Estate, Guindy, Chennai - 2016 SCC online 10078. 5. Krishnan and others V. Inspector of Police and others - 2000 Crl.LJ 3684. 6. M/s.UBC and others V. M.R.Gowthanam - 2005 SCC online Ker 164. 7. Coastal Mines and Minerals and others v. State of Chhattisgarh, Principal Secretary, Home Secretariat and others - ILR 2012 Karnataka 6494. 8. Krishnakumar Menon v. Neoteric Informatique Pvt Ltd., - 2001 SCC Online Ker 436. 9. Sanjeev Rujendrabjai Bhatt V. State of Gujarat and others - 1998 SCC online Guj 297. 10.First custodian fund (India) ltd and others v. Nedungadi Bank Ltd and others - 2007 (6) Mh.LJ. 295. 11.Arun Kumar Gupta v. State of Rajasthan and another - 2010 SCC online Raj 1184. 36. As already stated that both the counsel have no quarrel with regard to the maintainability of filing of writ petitions to quash the FIR under Article 226....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f of the respondent is liable to be rejected. First, the said objection was raised on 21.07.2017. An oral prayer was made that the Court ought to pass an order on its jurisdiction. The court proceeded to state that it would like to dispose of the matter finally and would also deal with the issue relating to jurisdiction. On the subsequent date of hearing, an affidavit was tendered by the CBI calling upon the Court to pronounce on the issue of jurisdiction. 40. The learned senior counsel appearing for the petitioners in WP.SR.No.69249 of 2017 would submit that the respondent/CBI insisted this Court to decide preliminary issue as to whether this Court has territorial jurisdiction to entertain the writ petition to quash the FIR registered by the respondent at New Delhi. The judgments relied on by the learned Additional Solicitor General to the effect that the High Court's having held that it had no jurisdiction ought not to have decided the case on merits. At this stage, the said proposition would not apply to the present case on hand. In the judgments relied on by the learned Additional Solicitor General, the High Court's after hearing the parties, passed orders both on th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Court to decide the same as preliminary issue before going into the merits of the case. On reading of the above said authorities as contended by the learned Senior counsel for the petitioners, these authorities are relevant to election cases. The learned Additional Solicitor General has relied on these judgments only for the limited purpose for deciding the territorial jurisdiction as preliminary issue. Though, the above referred two authorities are relating to election cases and the same are not applicable to the present case. While exercising extraordinary jurisdiction under Article 226 of the Constitution of India, there is no bar to this Court to decide the territorial jurisdiction as preliminary issue. Further, no prejudice would be caused to either side to decide the question of territorial jurisdiction as preliminary issue. 43. In this regard, it is relevant to refer the decision of the Hon'ble Apex Court in the case of UOI and others v. Adani Exports Ltd., & another - (2002) 1 SCC 567 wherein the Hon'ble ApexCourt held as follows :- "Having considered the arguments addressed on behalf of the parties and having perused the records, we are of the consider....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., Patiala House Courts, New Delhi and quash the same and all proceedings thereto as without jurisdiction, abuse of process and vitiated by malafides and pass such further or other orders as this Hon'ble Court may deem fit and proper so that justice may be done." (Emphasis Supplied) 48. The judgment in the case of Dashrath Rupsingh Rathod v. State of Maharashtra reported in (2014) 9 SCC 129 has categorically held that "the civil law concept of 'part of cause of action' cannot be borrowed for the purpose of ascertaining jurisdiction in criminal matters". 49. The petitioners have sought to justify by filing captioned petitions before this Court in the following para of the petition:- "65. Even though the FIR was filed in the special court CBI, New Delhi, part of cause of action arose in Chennai even as per column 5 of the FIR stating that the place of occurrence is Delhi, Mumbai and Chennai; the search pursuant to the search warrant issued by the special court CBI New Delhi was conducted in Chennai; and the alleged illegal gratification of Rs. 10 lakhs being the cause of action for the FIR was received in Chennai. Hence, this Hon'ble Court has j....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re than one places, any one of the Court has got territorial jurisdiction to try the case. In this case, the writ petitioners challenged the malafide FIR and notices, since, part of the cause of action arises within the jurisdiction of this Court and this Court has got territorial jurisdiction to take up the subject matter. 53. The learned senior counsel also mainly placed his reliance on the following judgments :- 1. Kusum Ingots and Alloys Limited Vs. Union of India - 2004 6 SCC 245. 2. ONGC v. Utpal Kumar Basu - (1994) 4 SCC 711. 3. Navin Chandra Majitha v. State of Maharashtra - (2000) 7 SCC 640. 54. It is submitted that in the present cases, having regard tothe series of facts which are described from paragraphs 11 to 65 of the writ petition, it would be clear that events have taken place in Chennai not only in relation to the Petitioner, but also in relation to those known to or even remotely associated with the Petitioners (as stated in the FIR itself). The abuse of authority, mala fides, actions, and the invasion of the right to life and liberty of the Petitioner and those associated with the petitioners have been described at great length i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... learned Additional Solicitor General would submit that though some of the incidence taken place in Chennai, this Court does not have jurisdiction, because FIR was registered at New Delhi by the respondent/CBI, the Special Court for CBI Cases, Patiala House Courts, New Delhi has seized up the matter, except the Delhi High Court, no other High Court has territorial jurisdiction to proceed further and mainly placed reliance on the Dashrath Rupsingh case (cited supra). 59. This Court, carefully perused the writ petitions filed by the writ petitioners and also the objections raised by the learned Additional Solicitor General and also the oral arguments advanced by the respective counsel for the petitioners and catena of decisions cited on either side and the written arguments submitted by the respective counsel, the FIR filed by the respondent CBI, the search warrant issued by the Special Court and the notices issued by the respondent CBI under Section 41-A(1) r/w.41(1)(b) Cr.PC. 60. Under the said circumstances, now without going into the merits of the case as stated above, this Court hears the writ petitions on the question of maintainability alone, with regard to preliminary i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....igh Court CWJC No.13957 of 2011 dated 06.08.2012 Bombay. The two learned judges of the bench, in their separate but concurrenting judgment, found that the key words in the clause 2 of Article 226 expanding jurisdiction of the High Courts, were cause of action, wholly or in part. Learned Judges noticed previous judgments of the Court on the issue and also definition of expression cause of action appearing in the Strouds Judicial Dictionary. The finding of the bench was crystallized by Thomas J. in paragraph 13 of the judgment. Finally the Court foud that the entire incidence had happened in Bombay and as such the Court directed the investigation relating to the complaint of the Company filed at Shilong to be held by the Mumbai Police. The ratio of the judgment shows that it is the collective facts or bundle of facts which is relevant to constitute cause of action and not the residence of a particular party." 64. Whereas, in the present case, the respondent/CBI filed the FIR the relevant portion of the FIR is extracted, wherein it is stated that "for the services rendered by Karti Chidambaram to M/s.INX Group through Chess Management Services (P) Limited in getting the issues agai....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... not constitute a part of the cause of action, one has to consider whether such facts constitutes a material, essential, or integral part of the cause of action. It is no doubt true that even if a small fraction of the cause of action arises within the jurisdiction of the Court, the Court would have territorial jurisdiction to entertain the suit/petition. Nevertheless, it must be a part of cause of action, nothing less than that". 66. As already stated, to maintain a writ petition in a High court, a party must not only establish that the bundle of facts of the case, for constituting the cause of action, arose within the territorial jurisdiction of that High Court, they must also establish that the said bundle of facts must be material, essential or integral part of the lis between the parties. 67. The Hon'ble Apex Court in the decision reported in Kusum Ingots and Alloys Limited Vs. Union of India reported in 2004 6 SCC 245 wherein it is held as follows :- 10. Keeping in view the expressions used in clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Cou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er must prove, if traversed, to entitle him to a judgment in his favour by the Court." ...... The question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition. 70. With regard to the decisions reported in K.Bhaskaran V. Sankaran Vaidhyan balan and another reported in (1999) 7 SCC 510; Dashrath Rupsingh Rathod v.State of Maharashtra reported in (2014) 9 SCC 129 and M/s.Bridgestone India Pvt. Ltd. v Inderpal Singh reported in (2016) 2 SCC 75. In order to over come the decision of the Bhaskaran case the jurisdiction of the offence regarding Negotiable Instruments Act, therefore, the above cases referred to are applicable to the cases filed under Section 138 of the Negotiable Instruments Act. 71. As rightly observed by the learned Senior Counsel for the petitioners, Mr.Ajmal Khan, the same was subsequent to the amendment by the parliament. He also brought to the notice of this Court regarding the relavant portion ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is Court has territorial jurisdiction to entertain the writ petitions, hence, the point No.1 is answered in affirmative. 75. Point No.3 Whether the Doctrine of Forum convenience is applicable to this case ? In this regard, it is necessary to refer again the judgment of the Kusum Ingots and Alloys Limited Vs. Union of India reported in 2004 6 SCC 245 wherein it is held as follows :- Forum convenience 30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum convenience. 76. As contended by the learned Additional Solicitor General, it is obligatory on the part of the Court to see convenience of all parties before it. The principle of forum convenience in its ambit and sweep encapsulates the concept that the cause of action arising within the jurisdiction of the Court will not itself constitute to be the determining fact....