riminal Appeal No 447 of 1974
Appeal by Special Leave from the Judgment and Order dated the 14th March 1974 of the Delhi High Court in Crimi nal Revision Petition No 61 of 1974
Mrs Urmila Kapoor and Miss Kamlesh Bansal for the appel lant
VC Mahajan and SLAneja for respondent
The Judgment of the Court was delivered by SHINGHAL J
This appeal by special leave is directed against the judgment of the Delhi High Court dated March 14 1974 allowing the revision application of
respondent Dev Raj Vijh and dismissing the appellant s application dated March 18 1969 under section 488 of the Code of Criminal Procedure 1898 hereinafter referred to as the Code
Appellant Raj Kumari Vijh was married to respondent Dev Raj Vijh in Delhi in June 195 0
It is the admitted case of the parties that they were living separately from 1953
The appellant filed her 999 first application for maintenance under section 488 of the Code in 1955 but it was dismissed
The respondent filed an application for divorce or judicial separation in 1956 in Aligarh Uttar Pradesh
It was ultimately dismissed on appeal on March 29 1968
In the meantime the appellant filed a suit against the respondent for recovery of her stridhen in Delhi in 1956
It was decreed on appeal by the Delhi High Court in 1967 for Rs 6458 
The appel lant gave a notice to the respondent on June 24 1968 claiming maintenance as a deserted wife
Nothing came out of it and she filed the present application under section 488 of the Code in the Court of the Delhi Magistrate on March 18 1969
It was stated in the application that the appellant had lived with the respondent in Delhi and Aligarh as his legally wedded wife and thereafter at village Lampur PS Narela Delhi towards the end of December 1968 because the respondent visited her there for a settle ment and for non execution of the decree which she had obtained for Rs 6458 on account of her stridhan
It was stated in the application that the parties lived at Lampur as husband and wife and there was cohabitation
The appellant prayed for an order allowing her Rs 450 per month for maintenance  as the respondent had sufficient means but had neglected or refused to maintain her
The respondent filed a reply on April 29 1969 in which according to the Magistrate there was no specific denial of the averment that the parties last resided together at Lampur
An objection was however taken that as the earlier application was dismissed on February 2 1956 the second application was barred on the principle of res judicata
An objection was taken to the jurisdiction of the Delhi Court on the ground that the respondent never resided permanently or temporarily in Delhi
We have not found it possible to go through the reply because it has been stated by counsel for the parties that the original record has been destroyed
The Magistrate passed an order for production of evidence
The respondent thereupon prayed that the question of juris diction may be decided before recording the evidence
That was not agreed to by the magistrate
He made an order on November 19 1969 that the question of jurisdiction must await the recording of the evidence on the whole case
The respondent did not challenge that order or apply for permis sion to file additional reply
On the other hand he asked for the holding of an identification parade for the purpose of showing that some of the appellant s witnesses did not even know him
Both the parties led their evidence al though it appears that the respondent did not like to avail of the opportunity which was given to him to lead evidence on the merits
He did not even apply for permission to file any additional reply when the Magistrate recorded the appellant s evidence on her application for maintenance as a whole
Ultimately the Magistrate made his final order on May 21 1973
He took the view that there was no specific denial of the appellant s allegation that the parties last resided together as husband and wife in village Lampur in Delhi towards the end of December in 1968
1000 He took notice of the fact that the plea of bar against the maintainability of the second application because of the dismissal of the first application was not pressed by the respondent and after referring to the entire evidence in details he reached the conclusion that he had the jurisdic tion to entertain the application and granted maintenance allowance at the rate of Rs 125 per month with effect from March 18 1969 along with an order regarding the mode of payment of the arrears
The respondent applied for a revision of that order and the Additional Sessions Judge referred the case to the High Court on November 30 1973 for dismissal of the application under section 488 of the Code on the ground that the Delhi Magistrate had no juris diction to entertain it
As the High Court has allowed the reference and dismissed the revision application which was filed by the appellant for an increase in the mainte nance allowance the appellant has come up to this Court by special leave
In its impugned judgment dated March 14 1974 the High Court has recorded the finding that the parties did not reside together at village Lampur and for that reason it took the view that the Delhi Court had no jurisdiction to entertain the appellant s application under section 488 of the Code
Counsel for the appellant has vehemently urged that the finding of the High Court is incorrect but as it is a finding of fact we shall proceed on the assumption that does not call for interference in this appeal
The question however remains whether section 531 of the Code would be applicable to the case The High Court has held that the section would not be applicable and that is why it has passed the impugned order for the dismissal of the application of the appellant under section 488 of the Code
The High Court has taken that view for the following reasons  i The objection as to jurisdiction was raised right at the first instance by the husband
ii The respondent specifically reserved his right to file a written reply on merits after the question of jurisdiction was decid ed
iii As the respondent had reserved his right to lead evidence on merits it is not a case where the husband deliberately gave up his right to lead evidence on merits    iv There was obvious prejudice and failure of justice the respondent as he never led evidence on the merits
v It was necessary for the appellant to
prove that the respondent had refused and neglected to maintain her and that obviously requires an opportunity to be given to the husband to prove his case if it be one that he has not refused or refuses or neglected to maintain his wife or what his income and means is
1001 vi Before a decision on merits can be given the husband has the undoubted request sic to lead evidence on merits
vii A proceeding cannot be entertained in a court which has jurisdiction by simply taking recourse to section 531 of the Code when an objection has been taken against main tainability for otherwise the provision relating to jurisdiction would become nuga tory
Section 531 can cure the infirmity after the case has been fought on merits
 We have examined these grounds but we are constrained to say that they are not tenable in the facts and circumstances of this case
Section 531 of the Code reads an follows 531
No finding sentence or order of any Criminal Court shah be set aside merely on the ground that the inquiry trial or other proceeding in the course of which it was arrived at or passed took place in a wrong sessions division district sub division or other local area unless it appears that such error has in fact occasioned a failure of justice
 The section therefore relates to a defect of jurisdiction
As has been stated by this Court in Purushottamdas Dalmia vs The State of West Bengal1 those are two types of jurisdic tion of a criminal court namely 1 the jurisdiction with respect to the power of the court to try particular kinds of offences and 2 its territorial jurisdiction
While the former goes to the root of the matter and any transgression of it makes the entire trial voild the latter is not of a peremptory character and is curable under section 531 of the Code
Territorial jurisdiction is provided just as 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 who will have to meet the charge levelled against him and the convenience of the witnesses who have to appear before the Court 
Sub section 8 of section 488 in fact provides that proceedings under the section may be taken against any person in any district where he resides or is or where he last resided with his wife or as the case may be the mother of the illegitimate child
 This therefore is ordinarily the requirement as to the fling of an application under section 488 within the limits of the jurisdiction of the magistrate concerned
So where a magistrate has the power  to try a particu lar
application under section 488 and the controversy relates solely to his territorial jurisdiction there should ordinarily be no reason why section 5 31 of the Code should not be applicable to the order made by him
It has therefore to be examined whether there were any such circumstances in this case for which the High Court could justifiably refuse to apply the provisions of section 531
1  1002 The first reason why the High Court has not given the benefit of section 531 to the appellant is that an objection as to the jurisdiction of the Delhi Court was raised by the respondent right at the first instance
 Counsel for the respondent has strenuously argued that such
a benefit will not be available in a case where the magistrate knew that he had no jurisdiction and persisted in proceeding with the trial under the impression that section 531 of the Code would at any rate validate his order
That according to the counsel amounted to an order by the magistrate giving the jurisdiction to himself by virtue of section 531
Reliance in this connection has been placed on Radharani vs Rahim Sardar1 Sakuntala vs Thirumalayya2 State vs Tavara Naika3 Sultan Chand vs Yogindra Nath Bar 4 and Satwant Singh vs Smt
jaswant Kaur 5
As is apparent section 531 does not entitle a magis trate who is not a magistrate of the class referred to in sub section 1 of section 488 to proceed with an applica tion for maintenance
In fact even a District Magistrate a Sub Divisional Magistrate or a Magistrate of the first class will not be entitled to proceed with such an application if he knows that the proceedings do not fall within his juris diction under sub section 8 of section 488
The true meaning of section 531 is that while it will not uphold an order passed in proceedings wilfully taken in a wrong place or enable a magistrate to confer jurisdiction on himself when he knows that he has no such jurisdiction there is no reason why a magistrate who is otherwise duly empowered to make an order under sub section 1  of section 488 of the Code cannot proceed with an application under that subsec tion for the purpose of deciding whether he has the territo rial jurisdiction to entertain the application and to decide the application on the merits if he finds that he has the territorial jurisdiction
Section 531 cannot thus be said to be inapplicable to a case where there is a controversy as to the district where the proceeding should be held the parties lead evidence in support of their respective contention about the correct place of the pro ceeding and the magistrate finds it necessary after taking note of the entire evidence on the controversy to arrive at a decision on the basis of the balance of probabilities
In other words there is no reason why in such a case section 531 should not be applicable merely because the magistrate while considering the evidence relating to jurisdiction unwittingly makes a reference to section 531 in passing and not for the purpose of assuming jurisdiction under it
If the magistratein this case had thought of assuming juris diction under section 531 he would not have proceeded to record the evidence of the parties on the question of the territorial jurisdiction or referred to it at length in his order and arrived at the decision that he had the jurisdic tion
We have gone through the cases which have been cited by the counsel for the respondent
Radharani and another vs Rahim Sardar supra was a case where the magistrate pro ceeded with the trial 1 AIR 1946 Calcutta 459
2 3 AIR 4 AIR 1944 Peshawar 25
5 1003 in the wrong local area with his eyes open to the fact that he had no territorial jurisdiction and the Calcutta High Court had to observe that the section does not confer any jurisdiction
This is however not so in the present case because the Magistrate recorded the evidence on the question of territorial jurisdiction and he went to the extent of making a reference to the entire evidence which was led on the point
Moreover he took note of the fact that the re spondent had not specifically dened that he lived at village Lampur with the appellant
This is therefore not a case where the Magistrate proceeded with the application even though he had the knowledge that it did not fail within his jurisdiction
The same is the position in regard to Sakunlala vs Thirumalayya supra and it also cannot avail the respondent
We have gone through State vs Tavara Naika supra
It was not a case under section 488 of the Code
What has been said there is that the curative provisions of section 531 should not be an excuse for overlooking a mate rial irregularity pertaining to jurisdiction when it is brought to the notice of the Court before the commencement of the trial
It does not therefore lay down anything different from what has been stated in Radharani vs Rahim Sardar supra
It was a case where the accused was commit ted to a wrong sessions division and the mistake was cor rected because the trial had not commenced
Sultan Chand  another vs Yogindra Nath Baz supra was also not a case under section 488 of the Code
It has been held in that case that when the question of jurisdiction has been raised before the trial magistrate it is his duty to determine the point otherwise the provisions as regards jurisdiction would never be enforced and that section 531 cannot be applied to such a case
As has been stated the Magistrate in the present case addressed himself to the question of jurisdiction recorded detailed evidence on it considered the evidence in his order and reached the conclusion that the application was maintainable in his court
This is therefore a different case
Satwant Singh vs Smt
Jaswant Kaur supra was a case under section 488 of the Code
It has been held there that where the question of jurisdiction had been raised before the trial magistrate it was his duty to determine the point and that he cannot proceed with the trial in a wrong local area with his eyes open to the fact that he has no territorial jurisdiction
As has been shown this was not so in the present case
It would thus appear that the High Court erred in taking the view that section 531 would not be applicable to this case merely because an objection as to jurisdiction was raised by the respondent right at the first instance
 The second ground mentioned by the High Court is that section 531 would not be applicable because the respondent had specifically reserved his right to file a written reply on merits after the question of jurisdiction had been decid ed
We find that this is clearly a misstatement of the facts for counsel for the respondent was not able to refer to anything on the record to show that the respondent re served any such right to file a written reply on the merits at a later stage after the question of jurisdiction was decided against him
On the other hand we find that the Magistrate specifically overruled the objection of the respondent and made an order directing the parties adduce their evidence on the whole case and specifically rejected 16 206SCI77 1004 the respondent s application for deciding the question of jurisdiction in the first instance
The Magistrate has clearly stated that an order was made
by him for the pro duction of evidence in the case and that he decided to defer a decision of the question of jurisdiction until after the evidence had been recorded as a whole
The Magis trate has further stated that the respondent did not file his further or additional reply even then
The High Court therefore undoubtedly erred in thinking that the respondent specifically reserved his right to file a written reply on the merits later on
As has been shown no such reservation was permitted by the magistrate and counsel for the re spondent was not able to show how the respondent could unilaterally make such a reservation for himself
It may be that in a given case it may be advisable for a magistrate to confine the evidence of the parties in the first in stance to any preliminary objection relating to jurisdic tion and to decide the controversy on the merits thereaf ter but as this was not so in the present case we arc unable to find any justification for the second ground mentioned
by the High Court
The third ground of the High Court is also untenable for it has refused to apply section 531 on the ground of prejudice for the reason that the respondent had reserved his right to lead evidence on the merits and did not delib erately give up that right Here again counsel for the respondent was unable to show how it could be said that the respondent made any such reservation or was entitled to it when as has been stated the Magistrate had rejected his application for deciding the question of jurisdiction as a preliminary question and had passed an order for the pro duction of all the evidence in the case
If therefore the respondent persisted in refusing to produce his evidence in spite of that order of the Magistrate he alone was to blame for it and the High Court erred in taking the view that he had reserved the right to lead evidence at a later stage
The High Court has taken the view that this is a case where there was obvious prejudice to the respondent and a failure of justice as he never led evidence on the merits
But the High Court failed to appreciate that the respondent had to thank himself for that predicament
He knew that the Magistrate had passed an order refusing to try the question of jurisdiction in the first instance and had rejected his application to that effect
He also knew that the Magis trate had called upon the parties to lead all their evi dence
The appellant obeyed that order and examined her witnesses
The respondent persisted in thinking that the Magistrate had no jurisdiction and he refused to examine the witnesses on the merits and thought it sufficient to confine his evidence to the question of jurisdiction
if he deliberately refrained from producing his evidence on the merits there can be no justification for him to raise the question of prejudice or failure of justice
As it is Counsel for the respondent has not been able to refer to any application of the respondent
whether oral or documentary expressing a desire to lead his evidence on the merits
The fact of the matter therefore is that the respondent had decided that he would not lead any evidence on the merits and confined his evidence to the question of jurisdiction
It may be that as 1005 has been argued by the Counsel for the appellant he did so because he realised that he had no defence to make on the merits of the claim for maintenance
The fifth ground mentioned by the High Court is that before an order could be passed under section 4881 it was necessary to prove that the husband had refused or neglected to maintain his wife and that required an oppor tunity to be given to the husband to prove his case
But the argument is futile because the respondent did not set up any defence on the merits
On the other hand the Magis trate
found that there was no controversy about the facts that the appellant was the lawfully wedded wife of the respondent and that she had been living separately for the last many years and was entitled to maintenance as the respondent had neglected her or had refused to maintain her
In its sixth ground the High Court has stated that before a decision could be given on the merits the husband could make a request for permission to lead evidence on merits
It would be sufficient to say that Counsel for the respondent was unable to point out when and how any such request was made but was refused by the Magistrate
Lastly the High Court has taken the view that a pro ceeding cannot be maintained by a court which has no juris diction by simply taking recourse to section 531 of the Code when an objection has been taken against its maintenance for otherwise the provision relating to jurisdiction would become nugatory
This point has already been considered earlier and need not be re examined
It is thus quite clear that the High Court committed a serious error of law in refusing to
invoke section 531 in the facts and circumstances of this case
It is not in controversy that the Magistrate who took the proceedings on the appellant s application under subsection 1 of section 488 was one of the magistrates mentioned in that sub sec tion
The respondent raised a controversy as to his local jurisdiction and the Magistrate ordered the parties to lead all their evidence
He specifically rejected the applica tion for confining the evidence to the question of jurisdic tion or to try that as a preliminary issue
It is there fore futile to contend that the Magistrate gave himself jurisdiction by recourse to section 531 of the Code
On the other hand in his final order he set out the points which arose for consideration on the question of jurisdic tion made a mention at length of the entire evidence on that question and took into consideration the conduct of the respondent and the ease law as well as the respondent s reply
All that led him to the conclusion that he had jurisdiction to try the application
There is therefore no reason why section 531 should not be held to be applicable to this case
As has been shown it is futile for Counsel for the respondent to raise the question of prejudice or to say that there was a failure of justice because the respondent did not lend his evidence on the merits
As we have pointed out he did So deliberately and in 1006 defiance of the order of the Magistrate calling upon him to lead his evidence on the whole case
The respondent cannot in fact be heard to raise the question of prejudice when on the uncontroverted and well established facts the Magistrate found that the respondent was a person who had sufficient means and had neglected to maintain his wife and made an order that he shall make a monthly allowance of Rs 125 per mensem for her maintenance
The appeal is allowed and the impugned order of the High Court dated March 14 1974 is set aside with costs
PBR Appeal allowed


Summary:
Section 531 of the Criminal Procedure Code 1898 provides that no finding sentence or order of any criminal Court shall be set aside merely on the ground that the enquiry trial or other proceeding in the course of which it was arrived at or passed took place in a wrong sessions divi sion district subdivision or other local area unless it appears that such error has in Tact occasioned a failure of justice
In her claim for maintenance from the respondent who was her husband the appellant filed a petition under section 488 Cr
PC in the Court of a Magistrate
The respondent took objection to the Court s jurisdiction to try the case on the ground that the parties did not reside within its jurisdic tion
The Magistrate passed an order that the decision on the question of jurisdiction must await the recording of evidence on the whole case
The respondent did not chal lenge that order
Ultimately the Magistrate held that he had the jurisdiction to entertain the application and decided it on the merits
The Sessions Judge referred the respond ent s revision application to the High Court
The High Court heard that by taking recourse to section 531 proceedings could not be entertained in a Court which had no jurisdic tion more so when an objection had been taken against its maintainability and that section 531 could cure the infirmity only if the case had been fought on merits
Allowing the appeal HELD The High Court erred in taking the view that section 531 would not be applicable to this case merely because the objection as to the jurisdiction was raised by the respond ent right at the first instance
1003 F 1
a Territorial jurisdiction is provided as a matter of convenience for the Court the accused and the witnesses
Under section 4888 a proceeding may be taken against any person m any district where he resides or is or where he last resided with his wife
1001 F G b Where a Magistrate has the power to try a particular application under section 488 and the controversy relates solely to his territorial jurisdiction there should Ordinari ly be no reason why section 531 should not be applicable to the order made by him
1001 H c The true meaning_of section 531 is that while it will not uphold an order passed in proceedings wilfully taken in a wrong place or enable a Magistrate to confer jurisdiction on himself when he knows that he has no such jurisdiction there is no reason why a Magistrate who is otherwise duly empowered to make an order under section 4881 cannot proceed with an application under that subsection for the purpose of deciding whether he has the territorial jurisdiction to entertain the application and to decide the application on the merits if he fin ds that he has the territorial juris diction
Section 531 cannot be said to be in applicable to a case where there is a controversy as to the district where the proceeding should be held the parties lead evidence in support of their respective contentions about the correct place of the proceeding and the Magistrate finds it neces sary after taking note of the entire evidence on the con troversy to arrive at a decision on the basis of the bal ance of probabilities
There is no reason why in such a case section 531 should not be applicable merely because the Magistrate while considering the evidence relating to jurisdiction unwittingly 998 makes a reference to section 531 in passing and not for the purpose of assuming jurisdiction under it If the Magistrate in this case had thought of assuming jurisdiction under section 531 he would not have proceeded to record the evidence of the parties on the question of the territorial jurisdic tion or referred to it at length in his order and arrived at the decision that he had the jurisdiction
1002 D G Purushottamdas Dalmia vs The State of West Bengal  followed
Radharani vs Rahim Sardar
AIR 1946 Calcutta 459
Sakuntala vs Thirumalyya  State vs Tavara Naika AIR  Sultan Chand vs Yogin dra Nath Baz
AIR 1944
Peshawar 25 and Satwant Singh vs Smt
Jaswant Kaur  held inapplicable
In the instant case the Magistrate was one of the Magistrates mentioned in section 488 1 
He had specifically rejected the respondent s application for confirming the evidence to the question of jurisdiction or to try that as a preliminary issue
It cannot therefore be said that he had given himself jurisdiction by recourse to section 531
The Magistrate had set out the point that arose for considera tion discussed the entire evidence and taken into consider ation the conduct of the respondent all of which led to the conclusion that he had the jurisdiction to try the applica tion
There is therefore no reason why section 531 should not be held to be applicable to this case
1005F H d The High Court erred in holding that section 531 would not be applicable because the respondent had reserved a right to file a written reply on merits after the question of jurisdiction had been decided
The Magistrate had spe cifically overruled the respondent s objection and directed the parties to adduce evidence and deferred the decision on the question of jurisdiction until after the evidence had been recorded
The respondent did not file his reply on the merits
1003G H e The High Court erred in holding that there was failure of justice because the respondent never led evi dence
The Magistrate called upon the parties to lead evidence
While the appellant obeyed the order the re spondent persisted in thinking that the Magistrate had no jurisdiction refused to examine his witnesses on merits and chose to confine his evidence to the question of juris diction
lOO4F H