TMI Blog2017 (8) TMI 1593X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt has territorial jurisdiction to entertain the writ petitions. Whether the Doctrine of Forum convenience is applicable to this case? - HELD THAT:- This Court is not entertaining these writ petitions, for the reason that this Court is inclined to adopt the doctrine of forum convenience, that being so no prejudice would be caused to the petitioners and also they are having an alternative remedy to approach the Delhi High Court for the very same relief, which has superintendence power over the Special Court for CBI Cases at New Delhi which is within its jurisdiction. In this case, though the writ petitions are maintainable and this Court has territorial jurisdiction, however, in the interest of justice and in order to avoid conflicting view, in case any one of the party approaches before the Delhi High Court or Bombay High Court for the very same relief, this Court is inclined to adopt the doctrine of forum convenience - this Court is not inclined to invoke its extraordinary discretionary power to entertain these writ petitions before this Court. All the points raised are answered accordingly. The Registry is directed to return all the papers filed before this Court to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause of action arose in New Delhi, hence the same may be clarified. 5. The respective counsel represented the papers with an endorsement made in a separate sheet, which reads as follows : WP.SR. Nos.69241 69245 of 2017 In para 65 of the Writ Petitions, it is stated as follows: Even though the FIR was filed in the Special Court, CBI, New Delhi, part of the cause of action arose in Chennai even as per column 5 of the FIR stating that the place of occurrence is Delhi, Mumbai and Chennai; the search pursuant to the search warrant issued by the Special Court, CBI, New Delhi was conducted in Chennai; and the alleged illegal gratification of ₹ 10 lakhs was received in Chennai. Hence, this Hon'ble Court has jurisdiction to entertain the instant Writ Petition . In Navinchandra N. Majithia vs. State of Maharashtra and others reported in (2000) 7 SCC 640, the Hon'ble Supreme Court has held that High Court under Article 226 of the Constitution of India will have jurisdiction to quash a FIR if part of cause of action arises within the jurisdiction of the said High Court even though the FIR is registered in a different state. Kind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt under Article 226 and 227 of the Constitution of India and under Section 482 of Cr.PC have no limits. Further Article 226 and 227 of the Constitution of India and under Section 482 of Cr.PC are devised to advance justice and not to frustrate it. Refer Para 22 and 30. Hence, Writ Petition is maintainable. The notices dated 04.07.2017 have been issued, consequent to the FIR dated 15.05.2017. Hence, the FIR and notices are challenged in the present Writ Petition. Hence a separate Writ Petition to challenge the notice does not arise. Hence, the present Writ Petition is maintainable. After perusing the endorsements made by the counsel for the petitioners, this Court on 19.07.2017, directed the Registry to list all the cases before the Court under the caption for maintainability 6. On 21.07.2017, all the writ petitions are listed under the caption for maintainability , Mr.Gopal Subramanian, learned senior counsel appearing for the petitioners in WP.Sr.Nos.69241 and 69245 of 2017 submitted that as per the decisions of Navinchandra N.Majithia V. State of Maharastra and others reported in (2000) 7 SCC 640 and Pepsi Foods Ltd., and another V. Sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endence over the Special Court, New Delhi which is within the jurisdiction of the Delhi High Court. Therefore, the Delhi High Court has territorial jurisdiction to try the cases and this Court has no territorial jurisdiction to entertain the writ petitions. In addition to that he has also submitted the written submission. 11. The Additional Solicitor General, Government of India further submits in his written arguments that on 09.07.2017, the said affidavit was filed specifically praying that the question of lack of territorial jurisdiction be decided as a preliminary issue. The said affidavit contains the following judgments which are relevant only for the proposition that the question of jurisdiction, whenever raised, should be decided as a preliminary question and the Court should not hear, adjudicate and record findings on merits without first deciding jurisdictional point which goes to the root of the matter. The Additional Solicitor General, has also cited the following authorities :- 1. Mohinder Singh Gill V. Chief Election Commissioner (1978) 1 SCC 405. 2. I.K.gujaral V. Election Commission of India (1993) 50 DLT 458. 3. UOI v. Adani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29 has categorically held that the civil law concept of 'part of cause of action' cannot be borrowed for the purpose of ascertaining jurisdiction in criminal matters . The fact that the said case arose from an offence under the Negotiable Instrument Act is a mere co-incidence and irrespective of the penal act involved, the ratio of Dashrath Rupsingh case (supra) would not change. The Attempts made on the part of the petitioner to distinguish the said judgment on the said ground is unsustainable in law. 16. The learned Additional Solicitor General would further submit that as argued on 21.07.2017 and 10.08.2017, if some judicial order is passed by the Special Judge (CBI Court) Patiala House, New Delhi in the present proceedings pending before him regarding the offence in question and the same is challenged by the investigating officer or one of the accused before the Delhi High Court, the same would obviously be maintainable and cannot be dismissed on the ground of lack of territorial jurisdiction of the Delhi High court. If this Hon'ble Court is pleased to hold that this Court also has parallel jurisdiction, then the very same order passed by Special Judge (CB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond any doubt. For every action, there has to be a cause of action, if not, the plaint or the writ petition, as the case may be, shall be rejected summarily..... 9. Although in view of Section 141 of the Code of civil Procedure the provisions thereof would not apply to writ proceedings, the phraseology used Section 20(c) of the Code of Civil Procedure and clause (2) of Article 226, being in parimateria, the decisions of this court rendered on interpretation of Section 20(c) CPC shall apply to the writ proceedings also. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action as what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression material facts is also known as integral facts. 19. The same position has been reiterated by the Supreme Court in ONGC v. Utpal Kumar Basu - (1994) 4 SCC 711 wherein the Supreme Court quoted the meaningful words of Lord Watson inChandra Kaul v. Pratap Singh - ILR 1889 (16) Calcutta 98 at 102: ... the cause of action has no relation whatever to the defence which may be set up by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to life and liberty of the Petitioner and those associated with the petitioners have been described at great length in the petition. The Petitioner will substantiate the said allegations. It is the material facts that gave rise to the pleadings in the Writ Petition will determine whether the cause of action, wholly or partly, arose in Chennai. The FIR, has been registered on 15.05.2017, is an action in continuum of a series of mala fide acts that took place in Chennai and hence liable to be interfered with by this Court in the exercise of its public law jurisdiction under Article 226 of the Constitution to ensure that the authorities act within the bounds of power and bonafides. 22. The preliminary objection to jurisdiction raised on behalf of the respondent is liable to be rejected. First, the said objection was raised on 21.07.2017. An oral prayer was made that the Court ought to pass an order on its jurisdiction. The court proceeded to state that it would like to dispose of the matter finally and would also deal with the issue relating to jurisdiction. On the subsequent date of hearing, an affidavit was tendered by the CBI calling upon the Court to pronounce on the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not been overruled. The judgment in Dashrath now stands superseded by virtue of the Negotiable Instruments (Amendment) Second Ordinance, 2015. The Hon'ble Supreme Court in the case of M/s Bridgestone India Pvt. Ltd. v Inderpal Singh - (2016) 2 SCC 75, has noticed that the Amendment Ordinance of 2015 has overcome the legal position declared in Dashrath case. (iv) The decisions cited by the learned Additional Solicitor General suggests that if proceedings lie before a subordinate court in another State, then the Madras High Court would not exercise its jurisdiction under Article 226. The statement of the learned Additional Solicitor General is incorrect because even though supervisory jurisdiction under Articles 227 and 482 will lie or vest in the High Court within whose territories the subordinate court is located, this will not have effect of ousting the jurisdiction of a High Court under Article 226 in cases where a part of the case of action has arisen within the territory of such High Court. 23. The learned senior counsel appearing for the petitioners in WP.Sr.No.69249 of 2017 would submit that the respondent/CBI insisted this Court to decide th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India. 26. It is clear that a writ petition assailing an FIR registered at Delhi in the Madras High court is maintainable if the cause of action for filing the writ petition either in part or fully arose within its jurisdiction. Similarly, the Hon'ble Supreme Court, also held in Kusumingots and Alloys Limited Vs. Union of India, 2004 6 SCC 245, that Article 226 (2) of the constitution enables the High Court to entertain a writ petition even if a small fraction of cause of action accrues within the jurisdiction of High Court and that when a part of the cause of action arises within the jurisdiction of one Court and the rest within another High Court, the petitioner could choose any of the High Court being dominus lites. 27. However, quite strangely in an application made under section 482 of Cr.P.C to quash an FIR registered at Mumbai, the learned single judge of this Court, in S.Ilanahi Vs. State of Maharastra 2015 IMWN Cr.618, considering the fact that not provision akin to Article 226 (2) of the Constitution of India was provided in Section 482 of the code, held that such an application under section 482 of the Code would not be maintainable. The Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or General has raised a preliminary objection with regard to territorial jurisdiction over the impugned criminal proceedings challenging under Article 226 of the Constitution of India, therefore, the only question is to be decided is whether this Court has territorial jurisdiction to entertain this writ petition and the same has to be decided first as preliminary issue. 32.According to the writ petitioners, with regard to territorial jurisdiction, part of the cause of action arises in Chennai that too within the jurisdiction of this Court. Therefore, this Court has territorial jurisdiction over the subject matter and this Court has territorial jurisdiction to entertain these writ petitions. 33. According to the prosecution, though part of cause of action arises in Chennai, but the FIR was registered in New Delhi, the FIR was sent to the Special Judge CBI Cases, Patiala House Courts, New Delhi and the Special Court, New Delhi has seized the matter and now the Delhi High Court only has territorial jurisdiction over the subject matter under Article 227 of the Constitution of India, because the Delhi High Court has superintendence over all the Courts and tribunals th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that both the counsel have no quarrel with regard to the maintainability of filing of writ petitions to quash the FIR under Article 226. Under the said circumstances now the points for consideration are as follows:- 1. Whether this Court has territorial jurisdiction to entertain these writ petitions? 2. Whether the territorial jurisdiction can be decided as preliminary issue? and 3. Whether the Doctrine of Forum convenience is applicable to this case? 37. Point No : 2 Whether the territorial jurisdiction can be decided as preliminary issue? In this regard, the learned Additional Solicitor General would submit that the question of jurisdiction, whenever raised, should be decided as a preliminary question and the Court should not hear, adjudicate and record findings on merits without first deciding jurisdictional point which goes to the root of the matter. He has also placed reliance on the following authorities :- 1. Mohinder Singh Gill v. Chief Election Commissioner (1978) 1 SCC 405. 2. I.K.Gujaral v. Election Commission of India (1993) 50 DLT 458. 3. UOI v. Adani Exports Ltd (2002) 1 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not apply to the present case on hand. In the judgments relied on by the learned Additional Solicitor General, the High Court's after hearing the parties, passed orders both on the point of jurisdiction as well as on merits despite returning the finding that he had no jurisdiction. The Hon'ble Apex Court in such cases, held the exercise by the High Court to be inappropriate, in the case on hand, the Court can hear the parties as jurisdiction on merits and in the event of this Court arriving at a conclusion that it has no jurisdiction to entertain the writ petition, it need venture into the merits of the case and as such it would not be open to the respondents to contend that this Court is not entitled to hear on the merits of the case, without deciding the issue of jurisdiction separately. 41. In this regard, the judgment of the Hon'ble Apex Court in the case of Mohinder Singh Gill V. Chief Election Commissioner reported in (1978) 1 SCC 405 wherein it is held that :- Article 329 (b) provides that notwithstanding anything in the Constitution, no election to either House of Parliament or to the House or either of the Houses of the Legislature of a S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another (2002) 1 SCC 567 wherein the Hon'ble ApexCourt held as follows :- Having considered the arguments addressed on behalf of the parties and having perused the records, we are of the considered opinion that the question of jurisdiction should be first decided by us before going into the merits of the case in hand. As a matter of fact, we feel it would have been more appropriate on the facts of the cases if the High Court had proceeded under Order XIV Rule 2 of CPC by deciding the question of jurisdiction as a preliminary issue first instead of deciding the case on merit. 44. Therefore, this Court is inclined to first decide the preliminary issue as to whether this Court has territorial jurisdiction to entertain these writ petitions. This point is answered accordingly. 45. Points No.1. Whether this Court has territorial jurisdiction to entertain these writ petitions? In this regard, the learned Additional Solicitor General would submit that once an FIR is filed, it is mandatory for the Investigation Agency to send the copy of the FIR to the Magistrate/Special Court having jurisdiction. The Court which monitors the actions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; the search pursuant to the search warrant issued by the special court CBI New Delhi was conducted in Chennai; and the alleged illegal gratification of ₹ 10 lakhs being the cause of action for the FIR was received in Chennai. Hence, this Hon'ble Court has jurisdiction to entertain the instant writ petition. 50. For an offence FIR registered at New Delhi, the investigation may spread over the entire country and the raids also may be required to be conducted in various parts of the country. Merely because raids were conducted, inter-alia, in Chennai or the tentative place of offence is mentioned to be Delhi, Bombay and Chennai at the time of filing of the FIR, would not mean that each of the High Court of Delhi, Bombay and Madras would have territorial jurisdiction, keeping it open for each accused to chose the High Court of his choice. It is further submitted that during the course of investigation, the investigating agency may find that various steps of conspiracy which resulted into the culmination of the offence at New Delhi. Filing of the present petition in the High Court which has no territorial jurisdiction in demonstratively an abuse of the process of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elation to those known to or even remotely associated with the Petitioners (as stated in the FIR itself). The abuse of authority, mala fides, actions, and the invasion of the right to life and liberty of the Petitioner and those associated with the petitioners have been described at great length in the petition. The Petitioner will substantiate the said allegations. It is the material facts that gave rise to the pleadings in the Writ Petition will determine whether the cause of action, wholly or partly, arose in Chennai. It is submitted that FIR, has been registered on 15.05.2017, is an action in continuum of a series of mala fide acts that took place in Chennai and hence liable to be interfered with by this Court in the exercise of its public law jurisdiction under Article 226 of the Constitution to ensure that the authorities act within the bounds of power and bonafides. 55. The learned senior counsel appearing for the petitioners in WP.Sr.No.69249 of 2017 would submit that he adopts the arguments advanced by the learned senior counsel for the petitioner in the other two writ petitions. Apart from that, the learned senior counsel submitted that the Hon'ble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warrant issued by the Special Court and the notices issued by the respondent CBI under Section 41-A(1) r/w.41(1)(b) Cr.PC. 60. Under the said circumstances, now without going into the merits of the case as stated above, this Court hears the writ petitions on the question of maintainability alone, with regard to preliminary issue as to whether this Court has got territorial jurisdiction to entertain these writ petitions. 61. While advancing the arguments on the issues, the learned Additional Solicitor General would submit that in this case, FIR is registered by the respondent/CBI in New Delhi against these petitioners and other unknown officials and the respondent produced the said FIR before the Special Court for CBI Cases, Patiala House Courts, New Delhi, all the unknown official accused are public servants in New Delhi, except the search was conducted in Chennai. Therefore, most part of the cause of action is at New Delhi only some of the incidence taken place at Chennai. However, the Special Court in Delhi has now seized up the matter and hence, this Court has no territorial jurisdiction to take up the matter. 62. In reply, the learned senior counsel a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o constitute cause of action and not the residence of a particular party. 64. Whereas, in the present case, the respondent/CBI filed the FIR the relevant portion of the FIR is extracted, wherein it is stated that for the services rendered by Karti Chidambaram to M/s.INX Group through Chess Management Services (P) Limited in getting the issues against INX Group scuttled, by influencing the public servants of the FIPB Unit of the Ministry of finance consideration in the form of payments were received against invoice raised on INX Media (P) Limited by M/s.Advantage Strategic consulting (P) Limited (ASCPL). The source informs that the very reason for getting the invoice raised in the name of M/s.ASCPL for the services rendered by M/s.Chess Management Services (P) Limited was with a view to conceal the identity of Karti P.Chidambaram, in as much as on the date when the invoice was raised or when payment was received, Karti P.Chidambaram was Promoter Director of M/s.Chess Management Services (P) Limited, whereas M/s.ASCPL was being controlled by him indirectly. The information also disclose that the invoices for approximately an mount of ₹ 3.5crores were also got raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Hon'ble Apex Court in the decision reported in Kusum Ingots and Alloys Limited Vs. Union of India reported in 2004 6 SCC 245 wherein it is held as follows :- 10. Keeping in view the expressions used in clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter. 12. This Court in Oil Natural Gas Commission v. Utpal Kumar Basu held that the question as to whether the Court has a territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in the petition, the truth or otherwise thereof being immaterial. 68. It is seen from the judgment of the Hon'ble Apex Court reported in Union of India v. Adani Exports Ltd reported in (2002) 1 SCC 567 wherein it is held as follows :- It is clear from the above constitutional provision that a High Court can exercise the jurisdiction in relation to the territories within which the cause of action, wholly or in-part, arises. This provision in the Constitution has come up for consideration in a number of cases bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the offence regarding Negotiable Instruments Act, therefore, the above cases referred to are applicable to the cases filed under Section 138 of the Negotiable Instruments Act. 71. As rightly observed by the learned Senior Counsel for the petitioners, Mr.Ajmal Khan, the same was subsequent to the amendment by the parliament. He also brought to the notice of this Court regarding the relavant portion of the judgment in the case of M/s.Bridgestone India Pvt. Ltd. v Inderpal Singh reported in (2016) 2 SCC 75 which is extracted hereunder :- In order to overcome the legal position declared by this Court in Dashrath Rupsingh Rathod's case, learned counsel for the appellant has drawn our attention to the Negotiable Instruments (Amendment) Second Ordinance, 2015 (hereinafter referred to as the Ordinance'). A perusal of Section 192) thereof reveals, that the ordinance would be deemed to have come into force with effect from 15.06.2015. It is therefore pointed out to us, that the Negotiable Instruments (Amendment) Second Ordinance, 2015 is in force. Our attention was then invited to Section 3 thereof, whereby, the original Section 142 of the Negotiable Instruments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use to exercise its discretionary jurisdiction by invoking the doctrine of forum convenience. 76. As contended by the learned Additional Solicitor General, it is obligatory on the part of the Court to see convenience of all parties before it. The principle of forum convenience in its ambit and sweep encapsulates the concept that the cause of action arising within the jurisdiction of the Court will not itself constitute to be the determining factor compelling the Court to entertain the matter. 77. As already narrated above, the FIR is registered at New Delhi and also the same has been produced before the Special Judge CBI cases, Patiala House Courts, New Delhi and after investigation also the charge sheet will be filed before the Special Court, New Delhi. As per the doctrine of forum convenience, since because part of the cause of action arises in Chennai, the Court will not constitute to determining the factor compelling the Court to entertain the matter. Further, as held above, the writ petitions are maintainable before this Court and this Court has territorial jurisdiction. As admitted by both the counsel the writ petitions are maintainable. As this Court held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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