[Section 406 CrPC] Criminal Cases Cannot Be Transferred On The Ground Of Lack Of Territorial Jurisdiction Even Before Evidence Is Marshalled: SC [Read Judgment]

The Supreme Court has observed that transfer of criminal cases cannot be ordered under Section 406 of the Code of Criminal Procedure on the ground of lack of territorial jurisdiction even before evidence is marshalled.

Justice V. Ramasubramanian observed (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.

The court observed thus while dismissing the petition of an accused 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. The accused had raised two grounds namely (i) lack of territorial jurisdiction and (ii) apprehension of bias (the second ground was not pressed).

Difference between the question of jurisdiction raised in civil and criminal cases

While considering these contentions, the court noted the main difference between the question of jurisdiction raised in civil cases and the question of jurisdiction arising in criminal cases.

"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. 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.

(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 words "Magistrate who is not competent to take cognizance" and (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"."

In the judgment, the court also summarized 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.

The words "tries an offence" are more appropriate than the words "tries an offender" in section 461 (l). 

The judge observed that 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. But Section 462, which saves the proceedings that had taken place in a wrong sessions division or district or local area. Referring to some precedents which dealt with a similar provision under the old CrPC, the court said:

"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 25 proceedings of a Magistrate void, if he tried an offender, when not empowered by law to do."

Referring to various other provisions, the court, while dismissing the Transfer Petition, observed:

"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."

"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."

Case no.: TRANSFER PETITION (CRL.) NO.456 OF 2019

Case name: KAUSHIK CHATTERJEE vs. STATE OF HARYANA 

Coram: Justice V. Ramasubramanian

Counsel: Sr. Adv Vikas Singh , Sr. Adv Neeraj Kishan Kaul

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