K.Rahavan... v. B.T.Padmanaban Nadar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :18.02.2008CORAM:THE HONOURABLE MR. JUSTICE K.MOHAN RAMCriminal Revision Case No.1597 of 2007K.Rahavan... Petitioner-Vs.-1. B.T.Padmanaban Nadar2. R.Chandran Jeyalal Nadar3. A.A.Murugesan... RespondentsPrayer : Criminal Revision case filed under Sections 397 and401 of the Criminal Procedure Code to set aside the orderpassed by the learned VIII Metropolitan Magistrate, GeorgeTown, Chennai in M.P.No.2674 of 2007 dated 28.09.2007 anddirect the Magistrate to take cognizance of the complaintdated 14.09.2007.For Petitioner : Mr. V.KrishnamoorthyO R D E RThe above criminal revision is directed against theorder of the learned VIII Metropolitan Magistrate, GeorgeTown, Chennai directing the return of the complaint filed bythe petitioner for alleged offences under Sections 120(b) r/w403 and 403 I.P.C. against the respondents herein, for beingfiled before the proper Forum on the ground that the learnedVIII Metropolitan Magistrate, George Town, Chennai has noterritorial jurisdiction to entertain the complaint whichfalls outside the limits of C1 to C5 police station limits.2. The petitioner/complainant making variousallegations against the respondents herein and alleging thatsuch allegations constitute offences under Sections 120(b) r/w403 and 403 I.P.C. filed a complaint against the respondentsin M.P.No.2674 of 2007 before the learned VIII MetropolitanMagistrate, George Town, Chennai. Before the learned VIIIMetropolitan Magistrate, George Town, Chennai, the learnedcounsel appearing for the petitioner herein had admitted thatthe Egmore Court alone has got jurisdiction to entertain the https://hcservices.ecourts.gov.in/hcservices/ complaint, but however basing reliance on the Hon'ble ApexCourt's decision reported in Trisuns Chemical Industry Vs.Rajesh Agarwal {2000 SCC (Cri) 47} and also the decision of alearned single Judge of this Court reported in The CatholicSyrian Bank Vs. A.Suguna Saraswathi {2007 (2) CTC 560}contended that the learned Magistrate has got jurisdiction toentertain the complaint. The learned Magistrate by referringto the distribution of business made by the learned ChiefMetropolitan Magistrate under Section 19(3) of the Cr.P.C. hasheld that since C1 to C5 police station limits alone fallwithin the territorial jurisdiction earmarked for that Court,returned the complaint for being presented before the properForum. Being aggrieved by that the petitioner/complainant isbefore this Court.3. Heard Mr.V.Krishnamoorthy, learned counselappearing for the petitioner.4. The learned counsel appearing for the petitionerrelied upon the following decisions: (i) Trisuns Chemical Industry Vs. Rajesh Agarwal {2000 SCC (Cri) 47}(ii) The Catholic Syrian Bank Vs. A.Suguna Saraswathi {2007 (2) CTC 560}5. In the decision reported in Trisuns ChemicalIndustry Vs. Rajesh Agarwal {2000 SCC (Cri) 47} the Hon'bleApex Court has in paragraphs 14 & 15 has observed as under:“14. The jurisdictional aspect becomesrelevant only when the question of enquiry or trialarises. It is therefore a fallacious thinking thatonly a Magistrate having jurisdiction to try thecase has the power to take cognizance of theoffence. If he is a Magistrate of the First Classhis power to take cognizance of the offence is notimpaired by territorial restrictions. After takingcognizance he may have to decide as to the courtwhich has jurisdiction to enquire into or try theoffence and that situation would reach only duringthe post-cognizance stage and not earlier.15. Unfortunately, the High Court, withoutconsidering any of the aforesaid legal aspectsrushed to the erroneous conclusion that the https://hcservices.ecourts.gov.in/hcservices/ “Judicial Magistrate of the First Class, Gandhidhamhas no power to take cognizance of the offencesalleged” merely because such offences could havebeen committed outside the territorial limits ofthe State of Gujarat. Even otherwise, withoutbeing apprised of the fuller conspectus a decisionon the question of jurisdiction should not havebeen taken by the High Court at a grossly prematurestage as this.”6. In the decision reported in The Catholic SyrianBank Vs. A.Suguna Saraswathi {2007 (2) CTC 560} a learnedsingle Judge of this Court has in paragraphs 3 & 4 hasobserved as follows:“3. The impugned order of the learnedMagistrate reads thus:“Complainant present. Heard and perused theentire documents. This Court finds that amountinvolved in the Complaint is Rs.40 lakhs. Hence thisCourt has no pecuniary jurisdiction to entertain thecomplainant for more than 5 lakhs. Hence thisComplaint is returned to the complainant for filingbefore the pecuniary jurisdiction Court. Hencereturned”.4. No pecuniary jurisdiction is prescribedfor the Magistrate Court and hence the impugned orderis liable to be set aside. The observation of theDivision Bench in the decision referred to above isrelevant and it is extracted below:“Law does not know or provide any other modeof dealing with the Complaint, much less returningthe Complaint. It is not possible for a Magistrateto return the Complaint for the so called defects andif the defects are there in the Complaint, thecomplainant has to suffer. There is no warrant inthe Criminal Procedure Code or the Criminal Rules ofPractice empowering the Magistrate to return theComplaint just because he thinks that there are anydefects. In this behalf, the observation by both thelearned Judges that the Magistrate has a power toreturn the Complaint because he has a power to acceptis clearly incorrect. In the first place, theMagistrate does not have a “power” to accept the https://hcservices.ecourts.gov.in/hcservices/ Complaint. That is not the power of the Court. Thatis the “duty” on the part of the Court incontradistinction of its “powers”. Again, unlessthere is a specific provision in the Code or theRules, the Magistrate cannot find out his ownprocedure by returning the Complaint as it is. Infact, when the complainant presents the case to theMagistrate that is not the stage of examining thedefects and it is not the Magistrate to examine theso called defects in the Complaint. All that theMagistrate has to do is to consider the same byordering the examination of complainant and/or as thecase may be, his witnesses.”7. The learned counsel appearing for the petitionerfairly submitted that the cause of action for filing thecomplaint has not arisen within the jurisdiction of thelearned VIII Metropolitan Magistrate, George Town, Chennai andthe cause of action has arisen within the territorialjurisdiction of the Egmore Court but yet the complaint wasfiled before the learned VIII Metropolitan Magistrate, GeorgeTown, Chennai, as in this Court, sworn statements are beingrecoded speedily on the presentation of the complaints.Whereas in the Egmore Court it takes longer time even forrecording sworn statements and hence the complaint was filedbefore the learned VIII Metropolitan Magistrate, George Town,Chennai. The learned counsel further submitted that anyJudicial Magistrate of the First Class has power to takecognizance of any offence which falls within his jurisdictionor not and as per the decision of a Division Bench of thisCourt reported in A.Vinayagam Vs. Dr.Subash Chandran {2000 (1)CTC 225} the learned Magistrate cannot return the complaint.8. The learned counsel appearing for the petitionerfurther submitted that the learned Magistrate ought to havetaken the complaint on file and thereafter transferred it tothe jurisdictional Court. The allocation of business by thelearned Chief Metropolitan Magistrate and limiting thejurisdiction of the learned VIII Metropolitan Magistrate,George Town, Chennai to C1 to C5 police station limits cannotbe a ground for returning the complaint in the light of thedecision of the Hon'ble Apex referred to above.9. I have carefully considered the above saidsubmission made by the learned counsel appearing for thepetitioner and the decisions relied upon by him. https://hcservices.ecourts.gov.in/hcservices/

10. It is no doubt true that in the decision reportedin Trisuns Chemical Industry Vs. Rajesh Agarwal {2000 SCC(Cri) 47} the Hon'ble Apex Court has observed that theJudicial Magistrate of the First Class has power to takecognizance of the offence and such power is not impaired byterritorial restrictions and the Hon'ble Apex Court hasfurther observed that after taking cognizance, the learnedMagistrate has to decide as to the Court which hasjurisdiction to enquire into or try the offence and thatsituation would reach only during the post-cognizance stageand not earlier. But in a subsequent decision reported inY.Abraham Ajith Vs. Inspector of Police, Chennai {(2004) 8 SCC100} another coordinate Bench of the Hon'ble Apex Court whileconsidering a similar question in paragraphs 12, 13, 14 and 19has observed as follows:“12. The crucial question is whether anypart of the cause of action arose within thejurisdiction of the court concerned. In terms ofSection 177 of the Code, it is the place where theoffence was committed. In essence it is the cause ofaction for initiation of the proceedings against theaccused. 13. While in civil cases, normally theexpression “cause of action” is used, in criminalcases as stated in Section 177 of the Code,reference is to the local jurisdiction where theoffence is committed. These variations inetymological expression do not really make theposition different. The expression “cause of action”is, therefore, not a stranger to criminal cases.14. It is settled law that cause of actionconsists of a bundle of facts, which give cause toenforce the legal inquiry for redress in a court oflaw. In other words, it is a bundle of facts, whichtaken with the law applicable to them, gives theallegedly affected party a right to claim reliefagainst the opponent. It must include some act doneby the latter since in the absence of such an act nocause of action would possibly accrue or wouldarise. 15.....16.....17.....18..... https://hcservices.ecourts.gov.in/hcservices/

19. When the aforesaid legal principles areapplied, to the factual scenario disclosed by thecomplainant in the complaint petition, theinevitable conclusion is that no part of cause ofaction arose in Chennai and, therefore, theMagistrate concerned had no jurisdiction to dealwith the matter. The proceedings are quashed. Thecomplaint be returned to Respondent 2 who, if she sochooses, may file the same in the appropriate courtto be dealt with in accordance with law. The appealis accordingly allowed.” 11. If the law laid down by the Hon'ble Apex Court inY.Abraham Ajith Vs. Inspector of Police, Chennai {(2004) 8 SCC100} is applied to the facts of this case, as admittedly nopart of the cause of action has arisen within the territorialjurisdiction of the learned VIII Metropolitan Magistrate,George Town, Chennai the learned Magistrate has nojurisdiction to deal with the matter. The decision reportedin Trisuns Chemical Industry Vs. Rajesh Agarwal {2000 SCC(Cri) 47} has not been brought to the notice of the Hon'bleBench which has rendered the decision reported in Y.AbrahamAjith Vs. Inspector of Police, Chennai {(2004) 8 SCC 100}.But it is settled law that if there is a conflict between thedecisions rendered by two coordinate Benches on the sameissue, the later decision has to be followed and as such thisCourt is bound to follow the later decision namely Y.AbrahamAjith Vs. Inspector of Police, Chennai {(2004) 8 SCC 100}.Therefore, this Court is unable to accept the contentions putforth by the learned counsel appearing for the petitioner.12. A reading of the decision reported in The CatholicSyrian Bank Vs. A.Suguna Saraswathi {2007 (2) CTC 560} showsthat the facts of that case are totally different from thefacts of this case. In that case the complaint was returnedto the complainant on the ground that the amount involved inthe complaint was Rs.40 lakhs and the learned Magistrate wasof the view that he had no pecuniary jurisdiction to deal withthe case. When that order was challenged, the learned singleJudge of this Court by observing that no pecuniaryjurisdiction is prescribed for the Magistrate Court set asidethe impugned order. In the Division Bench decision reportedin A.Vinayagam Vs. Dr.Subash Chandran {2000 (1) CTC 225} thecomplaint was returned for rectification of certain defectsand while considering the validity of the order returning thecomplaint for rectification of the defects, the Division Benchmade the observations which are extracted in paragraph 4 of https://hcservices.ecourts.gov.in/hcservices/ the decision reported in The Catholic Syrian Bank Vs.A.Suguna Saraswathi {2007 (2) CTC 560}. In that case theDivision Bench was not dealing with a similar issue as hasbeen decided by this Court. Hence that decision is notapplicable to the facts of this case.13. Further it is pertinent to point out that severalinstances have come to the notice of this Court thatcomplaints are being filed wantonly and wilfully before theCourts having no territorial jurisdiction for some reason orthe other. Such practice amounts to Forum Shopping, which inthe considered view of this Court cannot be allowed by thisCourt. The learned counsel appearing for the petitioner wasfair enough to submit that since sworn statements of thecomplainants are being recorded at the earliest by the learnedVIII Metropolitan Magistrate, George Town, Chennai, thepetitioner/complainant herein has chosen that Court for filingthe complaint in question to avoid delay. Simply because theCourt having territorial jurisdiction to entertain thecomplaint is not recording sworn statement of the complainantat the earliest but the sworn statement is being recordedafter some delay that cannot be a justification for filing thecomplaint before the Court which has no territorialjurisdiction. 14. Section 19(3) of the Code of Criminal Procedurereads as follows:“19. Subordination of MetropolitanMagistrate:(1).....(2).....(3) The Chief Metropolitan Magistrate may,from time to time, make rules or give special orders,consistent with this Code, as to the distribution ofbusiness among the Metropolitan Magistrates and as tothe allocation of business to an Additional ChiefMetropolitan Magistrate.”As observed by the learned Magistrate in his order, byexercising the power under Section 19(3) of the Cr.P.C. thelearned Chief Metropolitan Magistrate has issued specialorders regarding the distribution of business among theMetropolitan Magistrates and under such special order the https://hcservices.ecourts.gov.in/hcservices/ territorial limits of C1 to C5 police stations have beenallotted to the learned VIII Metropolitan Magistrate, GeorgeTown, Chennai. This special order issued by the learned ChiefMetropolitan Magistrate cannot be considered to beinconsistent with the Code of Criminal Procedure, when thesame is considered in the light of the decision of the Hon'bleApex Court reported in Y.Abraham Ajith Vs. Inspector ofPolice, Chennai {(2004) 8 SCC 100}. 15. The decision reported in Y.Abraham Ajith Vs.Inspector of Police, Chennai {(2004) 8 SCC 100} squarelyapplies to the facts of this case and as such the ordersought to be revised being perfectly valid and legal cannot beinterfered with and in such view of the matter, the abovecriminal revision case fails and the same is dismissed. kkSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The VIII Metropolitan Magistrate, George Town, Chennai.DM (co)sg 22/02/2008 order in Crl. R.C.No.1597 of 200718.02.2008