Case: KAUSHIK CHATERJEE Vs. STATE OF HARYANA &amp; ORS.

3. The petitioner herein was appointed on 04.08.2016 as the Group Chief Risk Officer-Executive Director of the second respondent, which is a non-banking finance company and which happens to be the de facto complainant in the criminal cases whose transfer is what is sought in these petitions. It is relevant to note that the petitioner, upon his appointment, joined the Delhi Office of the second respondent-Company on 04.08.2016 and he was transferred to Mumbai on 10.04.2017. The petitioner resigned in July-2018.4. 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. All the three complaints were lodged by the second respondent with the Station House Officer, Civil Lines, Gurugram P.S.5. After completion of investigation, the police filed a charge-sheet on 14.12.2018 in FIR No.452/18, for alleged offences under Sections 406, 408, 420, 120-B read with Section 34 of the Indian Penal Code (hereinafter referred to as the IPC).6. Similarly, a charge-sheet was filed on 18.07.2019 in FIR No.748 of 2017 for alleged offences under Sections 114, 120-B, 406, 420, 467, 468, 471 and 216 of the IPC. Likewise a charge- sheet was filed on 24.10.2019 in FIR No.356/2019 for offences under Sections 120-B, 406, 408, 420, 387 read with Section 34 of the IPC.7. The police also filed supplementary charge-sheets, on 06.01.2020 in the first case and on 08.11.2019 in the third case.

Reasoning:
While the question of territorial jurisdiction in civil cases, revolves mainly around (i) cause of action; or (ii) location of the subject matter of the suit or (iii) the residence of the defendant etc., according as the case may be, the question of territorial jurisdiction in criminal Cases revolves around (i) place of commission of the offence or (ii) place where the consequence of an act, both of which constitute an offence, ensues or (iii) place where the accused was found or (iv) place where the victim was found or (v) place where the property in respect of which the offence was committed, was found or (vi) place where the property forming the subject matter of an offence was required to be returned or accounted for, etc., according as the case may be.19. While jurisdiction of a civil court is determined by (i) territorial and (ii) pecuniary limits, the jurisdiction of a criminal court is determined by (i) the offence and/or (ii) the offender. But the main difference between the question of jurisdiction raised in civil cases and the question of jurisdiction arising in criminal cases, is two-fold.(i) The first is that the stage at which an objection as to jurisdiction, territorial or pecuniary, can be raised, is regulated in civil proceedings by Section 21 of the Code of Civil Procedure, 1908. There is no provision in the Criminal Procedure Code akin to Section 21 of the Code of Civil Procedure.(ii) The second is that in civil proceedings, a plaint can be returned, under Order VII, Rule 10, CPC, to be presented to the proper court, at any stage of the proceedings. But in criminal proceedings, a limited power is available to a Magistrate under section 201 of the Code, to return a complaint. The power is limited in the sense (a) that it is available before taking cognizance, as section 201 uses the wordsMagistrate who is not competent to take cognizanceand (b) that the power is limited only to complaints, as the word complaint, as defined by section 2(d), does not include a police report.It is in that Chapter XXXV that one has to search for an answer to the question as to what happens when a court which has no territorial jurisdiction, inquires or tries an offence.26. A cursory reading of Section 461(l) and Section 462 gives an impression that there is some incongruity. Under Clause (l) of Section 461 if a Magistrate not being empowered by law to try an offender, wrongly tries him, his proceedings shall be void. A proceeding which is void under Section 461 cannot be saved by Section 462. The focus of clause (l) of Section 461 is on the offender and not on the offence. If clause (l) had used the words tries an offence rather than the words tries an offender, the consequence might have been different.Therefore, it is clear that if an offender is tried by a Magistrate not empowered by law in that behalf, his proceedings shall be void under Section 461. Section 462 does not make the principle contained therein to have force notwithstanding anything contained in Section 461.29. Section 26 of the Code divides offences into two categories namely (i) offences under IPC and (ii) offences under any other special law. Insofar as offences under the IPC are concerned, Clause (a) of Section 26 states that they may be tried by (i) the High Court or (ii) the Court of Session or (iii) any other Court, by which such offence is shown in the first Schedule to be triable. In respect of offences under any other law, clause (b) of Section 26 states that they shall be tried by the Court specifically mentioned in such special law. In case the special law is silent about the Court by which it can be tried, then such an offence may be tried either by the High Court or by any other Court by which such offence is shown in the first schedule to be triable.33. 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 1898.34. In other words, the jurisdiction of a criminal Court is normally relatable to the offence and in some cases, to the offender, such as cases where the offender is a juvenile (section 27) or where the victim is a women [the proviso to clause (a) of section 26]. But Section 461(l) focuses on the offender and not on the offence.35. The saving clause contained in Section 462 of the Code of 1973 is in pari materia with Section 531 of the Code of 1898.36. In Raj Kumari Vijh Vs. Dev Raj Vijh AIR 1977 SC 1101 , which also arose out of a case filed by the wife for maintenance against the husband, the Magistrate rejected a prayer for deciding the question of jurisdiction before recording the evidence. Actually the Magistrate passed an order holding that the question of jurisdiction must await the recording of the evidence on the whole case. Ultimately the Magistrate held that he had jurisdiction to entertain the application. One of the reasons why he came to the said conclusion was that in the reply filed by the husband there was no specific denial of the wifes allegation that the parties last resided together within his jurisdiction. When the matter eventually reached this Court, this Court relied upon the decision in Purushottam Das Dalmia Vs. State of West Bengal AIR 1961 SC 1589 to point out that there are two types of jurisdictional issues for a criminal Court namely (i) the jurisdiction with respect of the power of the Court to try particular kinds of offences and (ii) its territorial jurisdiction.37. It was specifically held by this Court in Raj Kumari Vijh (supra) 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. However, territorial jurisdiction, according to this Court 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.38. After making such a distinction between two different types of jurisdictional issues, this Court concluded in that case, that where a Magistrate has the power to try a particular offence, but the controversy relates solely to his territorial jurisdiction, the case would normally be covered by the saving clause under Section 531 of the Code of 1898 (present Section 462 of the Code of 1973).39. From the above discussion, 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.40. But be that as it may, the upshot of the above discussion is (i) that the issue of jurisdiction of a court to try an offence or offender as well as the issue of territorial jurisdiction, depend upon facts established through evidence (ii) that if the issue is one of territorial jurisdiction, the same has to be decided with respect to the various rules enunciated in sections 177 to 184 of the Code and (iii) that these questions may have to be raised before the court trying the offence and such court is bound to consider the same.42. As seen from the pleadings, the type of jurisdictional issue, raised in the cases on hand, is one of territorial jurisdiction, atleast as of now. 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.10. But Mr. Vikas Singh, learned Senior Counsel for the petitioner did not press into service the second ground, revolving around the allegation that the second respondent wields a lot of influence locally in Gurugram and that the petitioner will not get a fair trial. This saves me of the botheration to bring on record the transcript of certain whatsapp messages filed before me as part of the paper book.21. The principles laid down in Sections 177 to 184 of the Code (contained in Chapter XIII) regarding the jurisdiction of criminal Courts in inquiries and trials can be summarized in simple terms as follows:(1) Every offence should ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. This rule is found in Section 177. The expression local jurisdiction found in Section 177 is defined in Section 2(j) to mean in relation to a Court or Magistrate, the local area within which the Court or Magistrate may exercise all or any of its or his powers under the Code(2) In case of uncertainty about the place in which, among the several local areas, an offence was committed, the Court having jurisdiction over any of such local areas may inquire into or try such an offence.(3) Where an offence is committed partly in one area and partly in another, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.(4) In the case of a continuing offence which is committed in more local areas than one, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.(5) Where an offence consists of several acts done in different local areas it may be inquired into or tried by a Court having jurisdiction over any of such local areas. (Numbers 2 to 5 are traceable to Section 178)(6) Where something is an offence by reason of the act done, as well as the consequence that ensued, then the offence may be inquired into or tried by a Court within whose local jurisdiction either the act was done or the consequence ensued. (Section 179)(7) In cases where an act is an offence, by reason of its relation to any other act which is also an offence, then the first mentioned offence may be inquired into or tried by a Court within whose local jurisdiction either of the acts was done. (Section 180)(8) In certain cases such as dacoity, dacoity with murder, escaping from custody etc., the offence may be inquired into and tried by a Court within whose local jurisdiction either the offence was committed or the accused person was found.(9) In the case of an offence of kidnapping or abduction, it may be inquired into or tried by a Court within whose local jurisdiction the person was kidnapped or conveyed or concealed or detained.(10) The offences of theft, extortion or robbery may be inquired into or tried by a Court within whose local jurisdiction, the offence was committed or the stolen property was possessed, received or retained.(11) An offence of criminal misappropriation or criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property was received or retained or was required to be returned or accounted for by the accused person.(12) An offence which includes the possession of stolen property, may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property was possessed by any person, having knowledge that it is stolen property. (Nos. 8 to 12 are found in Section 181)(13) An offence which includes cheating, if committed by means of letters or telecommunication messages, may be inquired into or tried by any Court within whose local jurisdiction such letters or messages were sent or received.(14) An offence of cheating and dishonestly inducing delivery of the property may be inquired into or tried by a Court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person.(15) Some offences relating to marriage such as Section 494, IPC (marrying again during the life time of husband or wife) and Section 495, IPC (committing the offence under Section 494 with concealment of former marriage) may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with the spouse by the first marriage. (Nos. 13 to 15 are found in Section 182)(16) An offence committed in the course of a journey or voyage may be inquired into or tried by a Court through or into whose local jurisdiction that person or thing passed in the course of that journey or voyage. (Section 183).(17) Cases falling under Section 219 (three offences of the same kind committed within a space of twelve months whether in respect of the same person or not), cases falling under Section 220 (commission of more offences than one, in one series of acts committed together as to form the same transaction) and cases falling under Section 221, (where it is doubtful what offences have been committed), may be inquired into or tried by any Court competent to inquire into or try any of the offences. (Section 184).27. It is significant to note that Section 460, which lists out nine irregularities that would not vitiate the proceedings, uses the word offence in three places namely clauses (b), (d) and (e). Section 460 does not use the word offender even once.28. On the contrary Section 461 uses the word offence only once, namely in clause (a), but uses the word offender twice namely in clauses (l) and (m).30. But Clause (a) of Section 26 makes the provisions contained therein, subject to the other provisions of the Code.