While passing the judgement in the transfer petition of a criminal case, Hon’ble Justice V Ramasubramanian observed that the Court could not order a transfer of a criminal case under section 406 of Cr.PC on the ground of territorial jurisdiction. The Court observed that such a step could not be taken before the evidence is marshalled.
The Hon’ble Judge opined that the jurisdiction of the Court to try an offender or offence depends solely on the facts established by evidence.
The Court further observed that if the issue of territorial jurisdiction is raised before a court, then it should be decided as per sections 177 to 184 of Cr.Pc and if such questions are put before the Court, then the Court will have to consider it.
The accused raised to main grounds before the Court:
- The first ground raised was an apprehension of bias.
- The second ground raised was that the Gurugram Court did not have the territorial jurisdiction to try the case.
The Court considered the jurisdiction in criminal cases and civil cases with an emphasis on the jurisdiction in criminal cases.
Further the Court observed that in civil cases, the jurisdiction depends on the residence of the defendant, cause of action, the place where the subject matter of the case is located.
Whereas in criminal cases the jurisdiction depends upon the place where the property is situated( if it is the subject matter of the case), the place where consequences of an act ensue, place of commission of crime/offence, place where the victim was located etc.. The Court observed that jurisdiction of the criminal Court is determined by the offender and/ or the offence.
The Court further observed that there is some incompatibility between Section 461(i) and section 462. Section 461(i) states that if a Magistrate wrongly tries an offender who he is not empowered to try then the proceedings will be void. At the same time, such a proceeding is saved by article 462.
Further the Court further observed that the issue of jurisdiction of a court could be decided solely on the facts established through evidence. He also observed that sections 177 to 184 would govern the issue of territorial jurisdiction. The judge concluded that if such questions are raised, then the Court is bound by law to consider them.
The Court noted that in the instant case, the type of jurisdictional issue that has come up for consideration is of territorial jurisdiction, and it can only be decided based on facts established by evidence. It was further noted that the facts could relate to the place of commission of offence or provision of section 177 to 184 of Cr.Pc.
The decision of the Court
The Court held that transfer of the case could not be allowed solely based on the ground(lack of territorial jurisdiction) taken up by the petitioner as territorial jurisdiction can be decided only be decided by facts established by evidence. In this case, evidence has not been marshalled.
The Court dismissed the transfer petition filed by the accused.
Title: Kaushik Chatterjee vs the State of Haryana
Case No. T.P(crl) 456 of 2019
Date of order: 30.09.2020
Coram: Hon’ble Justice V Ramasubramanian