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Territorial jurisdiction to be established by evidence – Supreme Court

In the case of Kaushik Chatterjee Vs State of Haryana [Transfer Petition (CRL.) NO.456 of 2019], Supreme Court held that territorial jurisdiction is a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular court, the convenience of the accused and the convenience of the witnesses who have to appear before the Court.

Seeking transfer of three criminal cases, all pending on the file of the Court of the Additional Judicial Magistrate, Gurugram, Haryana, to any competent Court in New Delhi, a person who was implicated as one of the accused in those three cases had come up with the transfer petitions.

The petitioner was appointed as the Group Chief Risk Officer Executive Director of the second respondent, which is a nonbanking finance company and which happens to be the de facto complainant in the criminal cases whose transfer is what is sought in these petitions. Three loans sanctioned by the second respondent company, during the period when the petitioner was in service, became the subject matter of three different complaints lodged by the second respondent company. Thus, in effect, transfer was sought primarily on 2 grounds namely (i) lack of territorial jurisdiction and (ii) apprehension of bias.

The court after examining various provisions observed that, “What is significant to note from the Code of 1898 and the Code of 1973 is that the question of jurisdiction dealt with by Sections 28 and 29 of the Code of 1898 and Section 26 of the Code of 1973, is relatable only to the offence and not to the offender. The power of a Court to try an offence is directly governed by Clauses (a) and (b) of Section 26 of the Code of 1973, as it was governed by Sections 28 and 29 of the Code of 1898.”

Court relied on the case of Raj Kumari Vijh Vs. Dev Raj Vijh AIR 1977 SC 1101 where it was held that the question of jurisdiction with respect to the power of the Court to try particular kinds of offences goes to the root of the matter and that any transgression of the same would make the entire trial void.

Court held that, “It is possible to take a view that the words ‘tries an offence’ are more appropriate than the words ‘tries an offender’ in section 461 (l). This is because, lack of jurisdiction to try an offence cannot be cured by section 462 and hence section 461, logically, could have included the trial of an offence by a Magistrate, not empowered by law to do so, as one of the several items which make the proceedings void. In contrast, the trial of an offender by a court which does not have territorial jurisdiction, can be saved because of section 462, provided there is no other bar for the court to try the said offender (such as in section 27). But Section 461 (l) makes the proceedings of a Magistrate void, if he tried an offender, when not empowered by law to do.”

Supreme Court held that, “Issue raised in the cases on hand, is one of territorial jurisdiction. The answer to this depends upon facts to be established by evidence. The facts to be established by evidence, may relate either to the place of commission of the offence or to other things dealt with by Sections 177 to 184 of the Code. In such circumstances, this Court cannot order transfer, on the ground of lack of territorial jurisdiction, even before evidence is marshaled. Hence the transfer petitions are liable to be dismissed.”

 

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