Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J., while exercising inherent powers under Section 482 CrPC quashed the criminal complaint filed against the petitioners for the offences punishable under Sections 405, 420 and 441 read with Section 120-B IPC. Warrants issued against the petitioners by the Magistrate in the same case were also quashed.

The parties were involved in a landlord-tenant dispute, pursuant to which the said complaint was filed by the landlord. Magistrate took cognizance and issued process against the petitioners. Aggrieved, they filed the instant petition. It was an admitted fact that the petitioners resided beyond the territorial jurisdiction of the Magistrate concerned.

Dismissing Chapter 15 of CrPC which deals with complaints to Magistrates, the High Court relied on Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., 2019 SCC OnLine SC 682, wherein the Supreme Court held that under the amended sub-section (1) to Section 202 CrPC, it is obligatory upon the Magistrate that before summoning the accused residing beyond its jurisdiction. he shall inquire into the case himself or direct the investigation to be made by a police officer or by such other person as he thinks fir for finding out whether or not there is sufficient ground for proceeding against the accused. The Supreme Court also held that the order of the Magistrate must reflect that he has applied his mind to the facts of the case and the law applicable thereto. It was also held that the application of mind has to be indicated by disclosure of mind on the satisfaction and considering the duties of the magistrates for issuance of summons to accused in a complaint case, there must be sufficient indication of it. The Supreme Court after referring to a catena of its previous judgments held that summons may be issued if the allegations in the complaint, the complainant statement and other materials would show that there are sufficient grounds for proceeding against the accused.

The records of the instant matter, however, did not reveal that the Magistrate had complied with the provisions of Section 202 CrPC and applied her mind to the facts of the case and the law applicable thereto. The order of taking cognizance stated that “cognizance of the matter is taken against accused no. 1, 2, 3 and 4”. Section 190 CrPC deals with cognizance of offence by Magistrate, which provides that the Magistrate “may take cognizance of any offence.” It is settled law that cognizance is taken of the offence and not the offender. The Magistrate did not even mention which of the offences she had taken cognizance of.

It was, thus, held that the Magistrate failed to exercise her discretion to issue summons against the petitioners residing beyond her territorial jurisdiction in the manner required. Even otherwise, considering the allegations, it was found that there was no material before the Court to proceed under criminal jurisdiction. [Mohd. Yusufuddin Ahmed v. Ruth Karthak Lepchani, 2019 SCC OnLine Sikk 198, decided on 07-12-2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: Dhiraj Singh Thakur, J. allowed a petition to direct the CBI to take charge of the present case.

The petitioner filed a Habeas Corpus Petition seeking appropriate direction to respondents to produce her son, who went missing in the custody of respondents. Petitioner also prayed for referring the investigation into the matter by the constitution of a Special Investigation Team (SIT) or in the alternative to refer the matter to the Central Bureau of Investigation (CBI).

The petitioner’s son, Shakeel Ahmed, went missing on his way to Zairat at Kaliar Sharief in Roorkie, Uttrakhand under the custody of the respondents. The matter was investigated initially by the appropriate Police Station, as an FIR under Section 364 RPC was filed. The investigating officer recorded the statement of witnesses under Section 161 of CrPC and called the accused persons to the Police Station and interrogated them. However, no fruitful result was obtained pursuant to which, the investigating officer closed the case. The matter was again reopened by the Zonal Police Head Quarter and a Special Investigation Team (SIT) was formed by the Senior Superintendent of Police. However, the SIT also failed to arrive at any conclusion and was clueless about the disappearance of the son of the petitioner.

The respondents contended that the matter if referred to Crime Branch, should also involve the territorial jurisdiction between the two States i.e. the State of Jammu and Kashmir and the State of Uttrakhand.

The High Court allowed the appeal and was of the view that since the investigation would involve the areas beyond the territorial jurisdiction of the State of J&K where the Crime Branch cannot have any jurisdiction, it would be appropriate to refer the matter for investigation to the CBI under Section 364 of RPC. The Court also held that “it cannot be a silent spectator to the disappearance of the son of the petitioner who needs to be recovered and the matter investigated at the earliest.”[Sabza Begum v. State of J&K, 2019 SCC OnLine J&K 666, decided on 08-07-2019]

Case BriefsHigh Courts

Delhi High Court: The Bench of Sanjeev Sachdeva, J. dismissed a revision petition filed by the husband against the judgment of the trial court whereby his application under Order 7 Rule 11 CPC impugning the proceedings filed by the wife on the ground of territorial jurisdiction was rejected.

Sanjay S. Chhabra with Satish Chaudhary, Advocates for the petitioner argued that the present application by the wife under Section 125 CrPC was not maintainable at Delhi because in all proceedings except the present one she had mentioned her residential address at Aligarh, U.P. Per contra, it was submitted on behalf of the wife by Saurabh Soni with Mannat Singh, Advocates that she was residing in Delhi with her brother since 2008.

The High Court perused Section 126(1) CrPC which deals with the place of the institution of proceedings under Section 125. It was observed, “Section 126(1) does not contemplate permanent place of residence. Even a place where the wife is for the time being residing would confer jurisdiction on such a court, where she is residing. However, residence temporarily acquired solely for conferring jurisdiction would not satisfy the requirements of Section 126(1).”In view of the law that wife can maintain a petition under Section 125 at any place where she is residing and the fact that she placed on record proof that reflected her address at Delhi, it was held that the trial court did not commit any error in rejecting husband’s application. The petition was dismissed for being without merit.[Sachin Gupta v. Rachna Gupta, 2019 SCC OnLine Del 6632, dated 21-01-2019]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of Dama Seshadri Naidu, J. while hearing an original petition in a debt recovery matter ruled that where a Tribunal exercises its jurisdiction over more than one State, then the High Court in the State where the first court is located has supervisory jurisdiction over the said Tribunal.

In a recovery proceeding filed by the respondent bank, petitioner purchased a secured asset brought for sale by the bank. Defaulting borrowers filed an application before Debts Recovery Tribunal (DRT), Ernakulam which set aside the sale in favour of petitioner. Aggrieved thereby, bank filed an appeal before Debts Recovery Appellate Tribunal (DRAT), Chennai wherein the petitioner pleaded that he had parted with his money and purchased the property on bank officials’ assurance. But since the property was now entangled in legal proceedings, he did not wish to contest the proceedings and wanted his money back with interest and damages. In this backdrop, the present petition was filed seeking a direction to DRAT, Chennai for early disposal of the appeal.

The respondent bank raised an objection as to maintainability of the petition in view of territorial jurisdiction. Thus, the question for Court’s consideration was as to whether it could assume supervisory jurisdiction over DRAT, Chennai.

Relying on the dictum of Apex Court in Ambica Industries v. CCE, (2007) 6 SCC 769 it was held that when the High Court exercises its jurisdiction over a Tribunal extending its jurisdiction over more than one State, then the High Court in the State where the first court is located would be the proper forum. In the instant case, the primary forum was DRT, Ernakulam and as such the High Court could eminently exercise its supervisory jurisdiction over DRAT, Chennai.

The petition was allowed directing DRAT to dispose of the appeal within three months.[Thomas Chacko v. Bank of India,2018 SCC OnLine Ker 4915, decided on 01-11-2018]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of A.K. Sikri and Ashok Bhushan, JJ. dismissed an appeal filed against the judgment of the Division Bench of the Madras High Court whereby it held it had no jurisdiction to adjudicate the dispute in question.

In short, the real essence of the dispute was that the plaintiffs, resident nationals of Dubai, had filed a derivative action on behalf of a company incorporated in Dubai. They held 34% shareholding in the said company, whereas the defendants held 66% of the shares. The defendants also held around 6.16% shares in Star Health and Allied Insurance Co. Ltd., a company incorporated in Chennai, India. According to the plaintiffs, these shares actually belonged to the company registered in Dubai mentioned above. Since Star Health was incorporated in Chennai, the plaintiffs instituted a suit in Madras High Court to protect an declare the beneficial interest of the Dubai company in the said 6.16% shares. A Single Judge of the High Court admitted the suit; however, on appeal by the defendants, the Division Bench held that it had no territorial jurisdiction to adjudicate in the matter. Aggrieved thus, the plaintiffs filed the instant appeal.

On perusal of the facts, the Supreme Court noted that the plaintiffs made certain averments to the said Dubai Company being the real owners of the shares held by the defendants in the Indian Company, which was denied by the defendants. In reality, it was a dispute between the plaintiffs and defendants, all of who were residents of Dubai. Even the company whose beneficial interest was claimed was incorporated in Dubai. The Court held inter alia, that merely because the dispute is about shares issued by an Indian Company would not lead to the conclusion that cause of action has arisen in India. As a consequence, the Madras High Court has no territorial jurisdiction to adjudicate the matter. Accordingly, the judgment impugned was upheld and the appeal was dismissed. [Ahmed Abdulla Ahmed Al Ghurair v. Star Health and Allied Insurance Company Ltd.,2018 SCC OnLine SC 2554, decided on 26-11-2018]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench of Annie John, J., allowed an appeal filed against the order of the trial court whereby accused was found guilty for the offence punishable under Section 58 of the Kerala Akbari Act.

The main issue that arose before the Court was whether the order of the trial court was good in law.

The Court observed that there was several loopholes in the investigation conducted by the police. Firstly, the sample of the contraband articles was sent to the Court after a delay for 4 days and such delay was unexplained by the prosecution. Secondly, the chemical analysis report was unclear and lastly, the forwarding note did not contain a sample seal. The appellant relied upon the case of Ramankutty v. Excise Inspector, Chelannur Range, 2013 (3) KHC 308, wherein it was held that an accused becomes entitled to the benefit of doubt if there is an unexplained delay on the part of the prosecution. The Court found this case applicable to the facts and circumstances of the instant case and it also observed that it was the duty of the prosecution to prove that the contraband articles were produced before the Court without any sort of tampering. The investigation under the Kerala Akbari Act could be conducted by the Akbari Officer appointed by the state government and every Akbari Officer had a territorial jurisdiction, however, in the instant case, the investigating officer was not authorized to investigate the matter since it was outside his territorial jurisdiction.

The Court after considering all the lacunae in the investigation held that the order of the trial court was liable to be set aside since it was based on such faulty investigation. Resultantly, the appeal was allowed and the order of the trial court was set aside.[Ravi v. State,2018 SCC OnLine Ker 4640, order dated 30-10-2018]

Case BriefsHigh Courts

Punjab & Haryana High Court: A Single Judge Bench of Amol Rattan Singh, J., dismissed a petition filed against the order of the lower court whereby the application of the petitioner under Order VII, Rule 11 of CPC was dismissed.

The main issue that arose before the Court was whether the lower court had the territorial jurisdiction to hear the petition under Section 25 of the Guardian and Wards Act, 1990 read with Section 10 of the Hindu Minority and Guardianship Act, 1956 and Section 26 of the Hindu Marriage Act, 1955.

The Court observed that the application in respect of the guardianship of the minor is to be made to the District Court having jurisdiction in the place where minor ordinarily resides. The Court referred to the case of Sunita Jain v. Mittar Sain Jain2002 SCC OnLine P&H 869, wherein it was held that the place of residence of a minor child below 5 years of age would be the place of residence of the mother. The custody of a child below 5 years of age (especially a female child), would naturally lie with the mother, and therefore the deemed custody would be with the mother even if actual custody was with the father.

The Court held that in the instant case the age of the child was 11 months and hence applying the rule laid down in Sunita Jain’s case, the natural custody of such child would lie with the mother. Hence, the petition for the guardianship of the child was rightly instituted before the District Court of Khadur Sahib. Resultantly, the petition of the petitioner was dismissed and the order of lower court was upheld. [Tejbir Singh v. Baljit Kaur, 2018 SCC OnLine P&H 1682, order dated 02-11-2018]

Case BriefsHigh Courts

Kerala High Court: A Division bench comprising of P.R. Ramachandra Menon and Devan Ramachandran, J. while hearing an appeal against the order of a Single judge held that denial of pension benefits to a person residing in a particular State, vests him with the locus standi to file the writ petition challenging such denial in that State.

The appellant, who worked in the Assam Rifles in Shillong, was discharged from service on medical grounds which entitled him to disability pension. However, when he was not sanctioned full pension, he made a representation to competent officials but the same was rejected. The appellant submitted that after he was discharged from service, he had no financial resources to continue to live in Meghalaya and therefore he was constrained to come to Kerala.

The only issue involved in the matter was as to whether this Court had territorial jurisdiction to entertain the appellant’s writ petition.

Relying on the dictum of  Apex Court in Nawal Kishore Sharma v. Union of India, (2014) 9 SCC 329, the  High Court observed that when a party residing within the jurisdiction of a court was denied the benefit of pension by an authority, a part of cause action could be said to have arisen within the jurisdiction of that Court. It is settled law that under Article 226 of the Constitution of India, writ jurisdiction can be exercised by any High Court, if any part of the cause of action, wholly or in part, arises within its territorial limits.

The Court noted that the request for disability pension was made from Kerala and its rejection was communicated to the petitioner in Kerala. Thus, the appeal was allowed holding that this Court was vested with territorial jurisdiction to entertain the present matter. [K.T. Sudharshanan v. Union of India,2018 SCC OnLine Ker 4003, decided on 28-09-2018]

Case BriefsForeign Courts

Supreme Court of Pakistan: A Division bench comprising of Mushir Alam and Sajjad Ali Shah, JJ. while hearing a civil petition for leave to appeal, held that objections as to territorial jurisdiction must be raised at the earliest possible opportunity.

Respondent company, which was in the possession of mining lease for certain areas by way of assignments and agreements had filed a suit in trial court seeking an injunction against petitioner to not carry out mining activity in those areas. The trial court decreed in favour of the respondent/ plaintiff, and against this order, the petitioner/ defendant filed an appeal in High Court raising objections as to territorial jurisdiction. The High Court held that since the matter in issue pertained to an area of mining lease and rights thereon, it did not directly relate to right and interest in the immovable property, and thus the suit could be filed at the place where the cause of action had arisen in whole or in part. It was further held that since the petitioner had not raised the said objection timely, it amounted to waiver on his part. Aggrieved by the said order of High Court, the present petition was filed by petitioner.

At the outset, the Supreme Court relied on Australian Apex Court’s case of Sojitz Coal Resources Pty. Ltd. v Commissioner of State Revenue, (2015) QSC 9 to hold that mining lease means rights and interest in mines/minerals in and on the surface of the land. Therefore, a mining lease does not constitute an estate or interest in land but is instead regarded as movable property.

Further, the  Court held that as per Section 21 of the Code of Civil Procedure, 1908 objections as to territorial jurisdiction must be raised before the Court of first instance at the earliest possible opportunity. Such objections can be considered by the appellate or revisional court only if the three conditions set down in Section 21 CPC are met viz.: (i) objection as to territorial jurisdiction was raised in the Court of the first instance, (ii) such objection is raised at the earliest opportunity, and (iii) there has been consequent failure of justice. It relied on the judgment of Indian Supreme Court in Pathumma v Kuntalan Kutty, (1981) 3 SCC 589 to hold that the aforesaid three conditions must co-exist in order that an appellate or revisional court consider a territorial jurisdiction objection.

The Court noted that in the instant case, the petitioner instead of raising objections as to territorial jurisdiction in the trial court at the earliest opportunity had engaged in a long drawn battle in High Court and Supreme Court. Thus, the present petition was dismissed for lack of merits. [Malik Khan Muhammad Tareen v. Nasir & Brother Coal Company,2018 SCC OnLine Pak SC 1, decided on 03-10-2018]

Case BriefsHigh Courts

Uttaranchal High Court: An application for appointment of an arbitrator under Section 11(6) of the Arbitration and Conciliation Act, 1996, was dismissed by a Single Judge Bench comprising of Sudhanshu Dhulia, J., holding that the property in question was in Delhi and thus the present application was barred by want of territorial jurisdiction.

A contract was executed between the applicant and the respondent at Delhi for lending out hydraulic compressors installed at various sites in Delhi. The agreement had an arbitration clause and as a dispute arose between the parties, the applicant gave an arbitration notice to the respondent. Since the respondent failed to comply with the notice, the applicant filed the instant application. The respondent objected as to the maintainability of the application on grounds of jurisdiction as the contract was executed in Delhi, parties resided in Delhi, and also the said hydraulic compressors were installed in Delhi.

The Court observed that cause of action is a bundle of facts. The Court perused provisions of the Transfer of Property Act as well as the General Clauses Act to hold that the hydraulic compressors were permanently fastened to earth and therefore, they were an immovable property. The applicant relied on Section 20 of CPC to contend that as the office of the applicant was registered at Haridwar, the courts in Uttarakhand have jurisdiction in the matter. However, the High Court dismissed the contention holding that Section 20 is subject to the provisions of Sections 15-19 of CPC. Only if the case does not fall within the purview of Sections 15-19, then Section 20 comes into play. The Court finally held that as the property was situated in Delhi, therefore, in light of Section 16 of CPC, the courts having jurisdiction to decide the matter were the courts at Delhi. Consequently, the arbitration application was dismissed. [Sri Hanuman Trust v. Indian Compressor Ltd., 2018 SCC OnLine Utt 211, dated 26-03-2018]

Case BriefsHigh Courts

High Court of Delhi: while deciding upon an issue with respect to maintainability of the writ petition on the ground of territorial jurisdiction of the Court, wherein the petitioner had questioned the termination of his contractual services with the respondent, the Bench comprising of Valmiki J. Mehta, J., observed that this Court has no territorial jurisdiction since the legal cause of action is complete only after communication of the order to the petitioner is complete and that would be the place where the territorial jurisdiction arises, and which is Goa in the facts of the present case.

The petitioner, who is a director of Goa Shipyard Ltd (GSL) at Goa, argued that the Delhi High Court has the territorial jurisdiction since the order of termination was issued by the Ministry to the Chairperson of GSL in Delhi, although the letter had not been communicated to him in Delhi but had been communicated to him in Goa. However, the Ministry argued that this Court did not have the territorial jurisdiction as the cause of action in the present case is the communication of the order and without such communication of an order to the person concerned; the cause of action is not complete for filing of a case in a court of law.

On examining the issue as that whether merely because the Government of India has issued its letter at Delhi would this ipso facto give territorial jurisdiction to this Court although this letter has not been communicated to the petitioner at Delhi and has in fact been communicated to the petitioner at Goa in terms of the subsequent letter, the Court observed that the communication of termination is not complete until and unless a person knows about the order of termination of services being passed, and an employee will only know about an order of termination of services only when it is communicated to him, and therefore, since communication is a compulsory link and a sine qua non for arising of the cause of action, hence cause of action will only be therefore complete for filing of judicial proceedings on communication and therefore the place where the communication is made would be the place where the territorial jurisdiction would exist, although the order of may have been passed elsewhere i.e Delhi in the present case.

The Court relying on Sterling Agro Industries Ltd. v. Union of India, decided on 1.8.2011, held that in order that this court should have territorial jurisdiction, cause of action should have arisen in Delhi and since no part of cause of action has arisen in Delhi in the present case because simply existence of an order in the file of the Government at Delhi does not create any right or liability, and which right or liability is created only on communication of the order, and which was communicated to the petitioner in Goa hence this Court has no territorial jurisdiction and the writ petition is therefore dismissed. [P.K.S. Srivastava v. Union of India, 2016 SCC OnLine Del 6149, decided on 1.12.2016]