Patna High Court · 2012
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.2167 of 2013 ================================================== 1. Ram Kishore Mishra S/O Late Pitambar Mishra Resident Of Village- Aasi, Police Station- Ghanshyampur, District- Darbhanga, At Present Residing At Goregaon (E), P.S- Goregaon (E), Mumbai- 63, (Maharashtra) Versus .... .... Petitioner/s 1. The State Of Bihar 2. Anita Devi W/O Late Bhogendra Mishra Resident Of Village- Aasi, Police Station- Ghanshyampur, District- Darbhanga, .... .... Opposite Party/s =================================================== Appearance : For the Petitioner/s : Mr. Shaialendra Kumar Jha, Adv. For the Opposite Party/s : Mr. Dr. M.N.Jha, APP. ==================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 5 16-07-2013 Heard learned counsel for the petitioner and the State. In this case, petitioner is challenging the order dated 13th December 2012 passed by the Additional Sessions Judge, Benipur, Darbhanga in S.T.No. 405 of 2011 whereby and whereunder, a petition filed u/s 227 and 228 Cr.P.C. has been rejected refusing to discharge him from the offence. A complaint case, vide C.R. No. 106 f 2008 was filed by one Anita Devi wife of Bhogendra Mishra, victim against the petitioner and other accused persons making allegation that all the accused persons have been residing in Goregaon east earning their livelihood. It has been alleged that the husband of the complainant came in contact with the accused persons as he was knowing driving, asked him to 2
Facts
Patna High Court Cr.Misc. No.2167 of 2013 (5) dt.16-07-2013 2 / 7 arrange a job for him as he had to earn money for the purpose of his marriageable daughter. The husband of the complainant went to Mumbai along with Ram Kishore Mishra in the month of December 2007 where the husband was able to save Rs.66,000/-which was kept with petitioner. The victim demanded his money from accused no.1 in the month of Agahan 2007 and he replied that he would give the said money at his native place. When the victim demanded the money, he had shown his empty pocket and assured that when he would return to Mumbai, there money would be given. The victim demanded his money on different occasions in Mumbai and he was always given assurance for payment. It has been alleged that accused nos.1 and 2 assaulted the victim mercilessly and refused to pay the money. It has been alleged that the husband of the complainant was killed by the accused persons which could be known to her on 3rd March 2008 and the dead body of her husband was disposed of at Mumbai. The court of Magistrate took cognizance of the offence and committed it to the court of Sessions. It appears from the record that the petitioner has challenged the order of cognizance before this Court vide Cr.Misc.No.30099 of 2011 where this Court refused to entertain the aforesaid application but leave was granted to raise the point of territorial jurisdiction at the time of framing of 3 Patna High Court Cr.Misc. No.2167 of 2013 (5) dt.16-07-2013 3 / 7 charge. Accordingly, a petition was filed raising the point of territorial jurisdiction and the court below has recorded its finding that the court at Benipur has jurisdiction to entertain this petition and refused to discharge the petitioner. Counsel for the petitioner submits that on plain reading of the complaint petition, it would appear that all the cause of action has taken place in Mumbai town and no cause of action or part thereof has not taken place in the State of Bihar or within the jurisdiction of Benipur, Darbhanga and as such, the present proceeding is an abuse of process of court and liable to be quashed whereas the counsel for the State has submitted that though the cause of action has taken place at Mumbai but from the narration of the fact a cognizable offence is constituted. Counsel for the State submits that cognizance cannot be held to be bad as Chapter-XIII of the Cr.P.C. deals with the place of enquiry and trial. The order of cognizance cannot be faulted but the trial can be transferred to proper court. So it will be in the interest of justice that this case be transferred to the court of competent jurisdiction. Section 177 of the Code deals with the jurisdiction of criminal court for enquiry and trial. Section 178 of the Code deals with the case when it is uncertain in which of several local area an offence was committed. To deal with the present 4 Patna High Court Cr.Misc. No.2167 of 2013 (5) dt.16-07-2013 4 / 7 case, it will be proper to quote Section 178 of the Code which is as follows: “Section 178. Place of inquiry or trial.— (a) When it is uncertain in which of several local areas an offence was committed, or b) where an offence is committed partly in one local area and partly in another, or c) Where an offence is a continuing one, and continues to be commi9tted in more local areas than one, or d) where it 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”. The issue which court would have jurisdiction to try the case, when plea has been taken, the offence has been committing more than one place if the offence is of continuous in nature, the test would be to find out as to whether the cause of action or any part thereof has taken place in the territorial jurisdiction of that court when the proceeding is pending. The cause of action consists of bundles of facts which give cause to enforce the legal inquiry for redress in court of law. The issue of cause of action and territorial jurisdiction of the court has been considered on different occasions by Hon’ble Supreme 5 Patna High Court Cr.Misc. No.2167 of 2013 (5) dt.16-07-2013 5 / 7 Court. It would be appropriate to rely on the judgment in case of Y.Abraham Ajith v. Inspector of Police,(2004) 8 SCC 100, “Para-12. The crucial question is whether any part of the cause of action arose within the jurisdiction of the court concerned. In terms of Section 177 of the Code, it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused. 13. While in civil cases, normally the expression “cause of action” is used, in criminal cases as stated in Section 177 of the Code, reference is to the local jurisdiction where the offence is committed. These variations in etymological expression do not really make the position different. The expression “cause of action” is, therefore, not a stranger to criminal cases.
Legal Reasoning
14. It is settled law that cause of action consists of a bundle of facts, which give cause to enforce the legal inquiry for redress in a court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the allegedly affected party a right to claim relief against the opponent. It must include some act done by the latter since in the absence of such an act no cause of action would possibly accrue or would arise. 15. The expression “cause of action” has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the proceeding including not only the alleged infraction, but also the infraction coupled with the right itself. Compendiously, the expression means every fact, which it would be necessary for the complainant to prove, if traversed, in order to support his right or grievance to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove such fact, comprises in “cause of action”. 16. The expression “cause of action” has sometimes been employed to convey the 6 Patna High Court Cr.Misc. No.2167 of 2013 (5) dt.16-07-2013 6 / 7 restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts. 17. The expression “cause of action” is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases for sitting; a factual situation that entitles one person to obtain a remedy in court from another person. In Black’s Law Dictionary a “cause of action” is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In Words and Phrases (4th Edn.), the meaning attributed to the phrase “cause of action” in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. 18. In Halsbury’s Laws of England (4th Edn.) it has been stated as follows: “ „Cause of action‟ has been defined as court a remedy against meaning simply a factual situation, the existence of which entitles one person to obtain from the another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. „Cause of action‟ has also been taken to mean that a particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action.” The aforesaid view has been affirmed in the case of Bhura Ram v. State of Rajasthan, (2008) 11 SCC 103 and Sunita Kashyap (2011)11 SCC 301 On consideration of the relevant provisions it is clear that the court where the cause of action or part thereof has 7 Patna High Court Cr.Misc. No.2167 of 2013 (5) dt.16-07-2013 7 / 7 taken place will have jurisdiction for enquiry and trial. On plain reading of the complaint petition, even if all are facts mentioned in the complaint petition is taken to be true, all the incident showing commission of offence constituting cause of action is at Mumbai at Goregaon. It is very difficult for this Court to accept the plea of the State as the husband was taken from this place to Mumbai some time at native place assurance was given to return the money at Mumbai does not constitute cause of action creating jurisdiction of the court at Benipur to try the case. This Court is of the view that the present proceeding at Benipur is unwarranted cannot continue. Accordingly, the order impugned is quashed. The complainant if so advised, can file an application or she can lodge proper case before the appropriate Police Station. This order will not come in her way, in taking appropriate steps With this observation this application is allowed. However, it is made clear that this Court is not giving any opinion on the merit of the case. It is only on the point of territorial jurisdiction. Jay/- (Shivaji Pandey, J)