TMI Blog2016 (12) TMI 1817X X X X Extracts X X X X X X X X Extracts X X X X ..... ND FORESTS ORS., MANU JAIN VERSUS SMT. NEERJA SHAH ORS., M/S BAFNA HEALTHCARE PVT. LTD. ORS. VERSUS COMMISSIONER OF CENTRAL EXCISE DELHI-IV ORS., THE COMMISSIONER OF TRADE TAX ANR. VERSUS M/S. RICOH INDIA LTD. ORS. [ 2012 (6) TMI 76 - DELHI HIGH COURT - LB] had concluded that [e]ven if a miniscule part of cause of action arises within the jurisdiction of this court, a writ petition would be maintainable before this court. At the same time, the full court had cautioned that the term cause of action‟ should be understood as per Alchemist Ltd. As to what amounts to cause of action‟ is well-settled, simply put, it is the bundle of facts which the plaintiff must prove in order to succeed - For every action, there has to be a cause of action. If there is no cause of action, the plaint or petition has to be dismissed. Whether cause of action can be said to have arisen in Delhi? - HELD THAT:- The argument of the learned counsel for the applicant is twofold; first, that cause of action is linked with crime and second, that rejection of mercy petition does not give rise to any cause of action. We are unable to accept both the contentions of the applicant - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present writ petition - Application dismissed. - W.P. (CRL) 441/2015 - - - Dated:- 6-12-2016 - Mr. G.S.Sistani And Mr. Vinod Goel, JJ. Ms. Nitya Ramakrishnan, Adv. with Ms. Ragini Ahuja and Mr. Ashish Virmani For The Petitioner. Mr. Navin Chawla, Adv. with Mr. Amit Rajput and Mr. Aditya V. Singh, Mr. Atul Jha, Adv. with Mr. Sandeep Jha For The Respondents. G.S.Sistani, CRL M.A. No. 3651/2015 (under Section 482 CrPC) 1. This is an application under Section 482 filed on behalf of the respondent no. 2/ State of Chhattisgarh for dismissal of the present writ petition on the ground that this court lacks territorial jurisdiction to entertain the present writ petiton. 2. The present writ has been filed impugning the orders of the President and the Governor of Chhattisgarh rejecting the mercy petition of the petitioner herein, inter alia, on account of delay, non-application of mind, ingnorance of relevant considerations and without taking into account that the petitioner was kept in solitary confinement. 3. Brief background to the present controversy is thus, the petitioner had been accused of killing 5 persons at Village Cher, Baikunthpur District, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so drawn our attention to the order dated 02.03.2015 passed by this Court, the relevant portion of which reads as under: On the question whether a writ petition would be maintainable before the High Court as the punishment of death sentence stands confirmed on merits by the Supreme Court, reliance has been placed on the decision of Bombay High Court in Smt. Renuka vs. Union of India, W.P.(Crl.) No.3103/2014 dated 20.08.2014 and the decision of Allahabad High Court dated 28.01.2015 in Public Interest Litigation (PIL) No.57810/2014 People's Union For Democratic Rights And Others. Vs. Union of India with Criminal Miscellaneous Writ Petition No. 23471/2014 in Surendra Koli vs. Union of India and Ors. Our attention is also drawn on the earlier order passed in the same writ petition dated 31.10.2014. On the question of territorial jurisdiction, learned Senior counsel for the petitioner has relied upon the decision of the Supreme Court in Kusum Ingots vs. Union of India, (2004) 6 SCC 254 and submits that the cause of action which is the subject matter of challenge relates to procedural lapses in the decision of the Mercy Petition. It is submitted that Mercy Petition was decided in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carried out by the local police. The said contention of the counsel is premised on the fact that the deciding of a mercy petition is part and parcel and in continuation of the criminal proceedings and is subject to the same rules. He contends that rejection of mercy petition cannot be delinked and treated as an independent act giving rise to a fresh cause of action. Mr. Jha contends that the entire proceedings have been conducted in Chhattisgarh and even before the Supreme Court, State of Chhattisgarh was the only respondent. To fortify his contention, learned counsel has relied upon Sections 177, 178 and 179 of the Code of Criminal Procedure and upon the judgments of the Supreme Court in Navinchandra N. Majithia v. State of Maharashtra, (2000) 7 SCC 640 (paragraph 22) and Manoj Kumar Sharma v. State of Chhattisgarh, (2016) 9 SCC 1 (paragraph 27). 5.5. Learned counsel further submits that the reliance placed on Kusum Ingots Alloy Ltd. v. Union of India and Another, (2004) 6 SCC 254 by the counsel for the petitioner is misplaced. Mr. Jha relies upon paragraph 26 to fortify his submission; the paragraph reads as under: 26. The view taken by this Court in U.P. Rashtriya Chin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at place with jurisdiction. In Navinchandra N. Majithia v. State of Maharashtra [(2000) 7 SCC 640 : 2001 SCC (Cri) 215] this Court had to consider the powers of High Courts under Article 226(2) of the Constitution of India. Noting the presence of the phrase cause of action therein it was clarified that since some events central to the investigation of the alleged crime asseverated in the complaint had taken place in Mumbai and especially because the fundamental grievance was the falsity of the complaint filed in Shillong, the writ jurisdiction of the Bombay High Court was unquestionably available. The infusion of the concept of cause of action into the criminal dispensation has led to subsequent confusion countenanced in High Courts. It seems to us that Bhaskaran allows multiple venues to the complainant which runs counter to this Court's preference for simplifying the law. Courts are enjoined to interpret the law so as to eradicate ambiguity or nebulousness, and to ensure that legal proceedings are not used as a device for harassment, even of an apparent transgressor of the law. Law's endeavour is to bring the culprit to book and to provide succour for the aggrieved pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which have attained finality. To fortify her submissions, learned counsel has relied upon the judgments of the Supreme Court in Kehar Singh and Another v. Union of India and Anr., (1989) 1 SCC 204 (paragraph 15) and Shatrughan Chauhan (Supra). 6.2. Learned counsel for the non-applicant has submitted that after Article 226 (2) has been inserted in the Constitution, the limitation on territorial jurisdiction has been given a go bye and for the present what is relevant is that the cause of action should have arisen within the jurisdiction of the court even though the authorities may be situated outside its territory. Ms. Ramakrishnan has drawn our attention to the Statement of Objects and Reasons to the Constitution (Fifteenth Amendment) Act, 1963 and the following observations of the Supreme Court in Alchemist Ltd. v. State Bank of Sikkim, (2007) 11 SCC 335: 16. It may be stated that by the Constitution (Forty-second Amendment) Act, 1976, Clause (1-A) was renumbered as Clause (2). The underlying object of amendment was expressed in the following words: Under the existing Article 226 of the Constitution, the only High Court which has jurisdiction with respect to the Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi. Therefore, substantial cause of action has arisen in Delhi. 6.6. In response to the contention that rejection of mercy petition cannot give rise to a cause of action, learned counsel submits that the mercy petition was the last option available to the convict/ petitioner before issuance of warrants for execution of the penalty and the same would give rise to a cause of action and the submission of the applicant that communication alone can give rise to a cause of action is misplaced. 6.7. Learned counsel also states that a complete reading of the judgment in the case of Kusum Ingots (Supra) decided by the Supreme Court of India supports the case of the petitioner. The Supreme Court has clearly distinguished between actions of the executive and legislative functions. The present case, being one based on the action of the executive, is not covered by paragraph 26 of the said judgment. To substantiate that Kusum Ingots (Supra) pertains to legislative actions, learned counsel has relied upon the judgments of this court in Smt. Malini Mukesh Vora v. Union of India, 2009 SCC OnLine Del 1776 (paragraphs 18, 19 and 20) and Sterling Agro Industries Ltd. (Supra) (paragraphs 22, 23 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... local and the investigation is also carried out by the local police. Reliance has also been placed on Sections 177, 178 and 179 of the Code of Criminal Procedure. Mr. Jha has also laboured hard to convince this Court that the present proceedings are in continuation of the criminal judicial proceedings. 10. No doubt the protection of personal life and liberty as enshrined in Article 21 of the Constitution is paramount in any civilized society. All the limbs of the State must act to protect the same from any infraction. A Constitutional Bench of the Supreme Court in Kehar Singh (Supra) observing that the fallibility of human judgment had led to the Executive being reposed with the power of clemency, had observed as under: 7. ...The power to pardon is a part of the constitutional scheme, and we have no doubt, in our mind, that it should be so treated also in the Indian Republic. It has been reposed by the people through the Constitution in the Head of the State, and enjoys high status. It is a constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by the context. It is not denied, and indeed it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power over sentences are readily distinguishable. To render judgment is a judicial function. To carry the judgment into effect is an executive function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua a judgment. To reduce a sentence by amendment alters the terms of the judgment itself and is a judicial act as much as the imposition of the sentence in the first instance. The legal effect of a pardon is wholly different from a judicial supersession of the original sentence. It is the nature of the power which is determinative. In Sarat Chandra Rabha v. Khagendranath Nath [AIR 1961 SC 334 : (1961) 2 SCR 133, 138-140] Wanchoo, J., speaking for the Court addressed himself to the question whether the order of remission by the Governor of Assam had the effect of reducing the sentence imposed on the appellant in the same way in which an order of an appellate or revisional criminal court has the effect of reducing the sentence passed by a trial court, and after discussing the law relating to the power to grant pardon, he said: ... It is apparent that the power under Article 72 en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther material relevant to the issues which he considers pertinent, and he may, if he considers it will assist him in treating with the petition, give an oral hearing to the parties. The matter lies entirely within his discretion. As regards the considerations to be applied by the President to the petition, we need say nothing more as the law in this behalf has already been laid down by this Court in Maru Ram. (Emphasis Supplied) 13. This Court has also in Khem Chand v. State, (1989) ILR 2 Del 429: 40 (1990) DLT 168 (paragraphs 26 and 27) while holding that writ petitions to this court were also maintainable against rejection of mercy petitions, held that clemency was an executive decision and this court was under an equivalent obligation to protect the life and liberty of the citizens. 14. Recently, the Supreme Court in Shatrughan Chauhan (Supra) after considering both Indian and international judicial pronouncements on the subject had observed as under: 14. Both Articles 72 and 161 repose the power of the People in the highest dignitaries i.e. the President or the Governor of a State, as the case may be, and there are no words of limitation indicated in either of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he jurisdiction of the courts under Article 226 is well settled, in Kusum Ingots (Supra) the Supreme Court had clearly drawn a distinction between legislative and executive actions, it was held that even if a small fraction of cause of action accrues within the territorial jurisdiction of the Court, the Court will have jurisdiction in the matter. 17. Both parties have relied upon the judgment in Kusum Ingots (Supra) and claimed that the reliance of the other side is misplaced. Upon a comprehensive reading of the Judgment, we are of the view that the reliance of the applicant is, in fact, misplaced. The paragraph sought to be relied upon, paragraph 26 extracted in para 5.5 aforegoing, is in respect of legislative actions. The Supreme Court has held that the mere passing of a legislative act does not give rise to a cause of action, but it is the application that may give rise to a cause of action. In respect of orders of the executive, the Court had held as under: 27. When an order, however, is passed by a court or tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt or miniscule part of the cause of action had arisen in Delhi. Thereafter, a Full Court Bench of five Judges was constituted to reconsider the Judgment; which, in turn, modified the findings of the three Judge bench and concluded as under: 33. In view of the aforesaid analysis, we are inclined to modify, the findings and conclusions of the Full Bench in New India Assurance Company Limited (supra) and proceed to state our conclusions in seriatim as follows: (a) The finding recorded by the Full Bench that the sole cause of action emerges at the place or location where the tribunal/appellate authority/revisional authority is situate and the said High Court (i.e., Delhi High Court) cannot decline to entertain the writ petition as that would amount to failure of the duty of the Court cannot be accepted inasmuch as such a finding is totally based on the situs of the tribunal/appellate authority/revisional authority totally ignoring the concept of forum conveniens. (b) Even if a miniscule part of cause of action arises within the jurisdiction of this court, a writ petition would be maintainable before this Court, however, the cause of action has to be understood as per the rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms the foundation of the suit. 21. The classic definition of the expression cause of action is found in Cooke v. Gill [(1873) 8 CP 107 : 42 LJCP 98] wherein Lord Brett observed: Cause of action‟ means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. 22. For every action, there has to be a cause of action. If there is no cause of action, the plaint or petition has to be dismissed. 23. Mr Soli J. Sorabjee, Senior Advocate appearing for the appellant Company placed strong reliance on A.B.C. Laminart (P) Ltd. v. A.P. Agencies[(1989) 2 SCC 163 : AIR 1989 SC 1239 : JT (1989) 2 SC 38] and submitted that the High Court had committed an error of law and of jurisdiction in holding that no part of cause of action could be said to have arisen within the territorial jurisdiction of the High Court of Punjab and Haryana. He particularly referred to the following observations: 12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of action to the convict as it closes the last hope upon which his very life is reliant. Therefore, in our view, the rejection of mercy petition does give rise to a cause of action at Delhi. 24. The last aspect to be considered by us pertains to the principle of forum non conveniens. The counsel for the applicant has argued that the convenient forum would be Chhattisgarh High Court and not this court. The concept was explained by the Supreme Court in Kusum Ingots (Supra) as under: 30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens.[See Bhagat Singh Bugga v. Dewan Jagbir Sawhney [AIR 1941 Cal 670 : ILR (1941) 1 Cal 490] , Madanlal Jalan v. Madanlal [(1945) 49 CWN 357 : AIR 1949 Cal 495] , Bharat Coking Coal Ltd. v. Jharia Talkies Cold Storage (P) Ltd. [1997 CWN 122] , S.S. Jain Co. v. Union of India [(1994) 1 CHN 445] and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e stretched so as to interfere with the aforesaid general principle of jurisprudence. Forum non conveniens is applicable where the Court is satisfied that another Court of Law is also having jurisdiction over the matter and the case can be tried more suitably for the interest of the parties and for the ends of justice in the other court. Thus, while exercising the discretion, the Court has to satisfy not only with the fact that it is a forum non conveniens but the other forum is more convenient and in the comparative conveniens (or the non conveniens), the yardstick is to see as to which Court, out of the two, is more suitable for the interest of the parties as well as for the ends of justice. These twin requirements are to be kept in mind. In Tehran v. Secretary of State for the Home Department, [2006] UKHL 47, the House of Lords expounded the doctrine in the following manner: The doctrine of forum non conveniens is a good example of a reason, established by judicial authority, why a court should not exercise a jurisdiction that (in the strict sense) it possesses. Issues of forum non conveniens do not arise unless there are competing courts each of which has jurisdiction (in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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