The Constitution of India, under Chapter V part 6, constituted High Courts as the apex court in the concerned State for the protection and safeguard of the fundamental as well as the legal rights of a person irrespective of the citizenship of the person[1].
Article 226 of the Constitution empowers the Hon’ble High Courts to exercise power through issuance of writs – habeas corpus, mandamus, quo warranto, prohibition and certiorari or any appropriate writ. However, Article 323-A and 323-B of the Constitution[2] has excluded the jurisdiction of the Hon’ble High Court with regard to the enlisted subject matters. Therefore, the exercise of the jurisdiction is discretionary in nature and subject to the availability and exhaustion of the alternative remedy by the petitioner.
The Hon’ble Apex Court in Radha Krishan Industries v. State of Himachal Pradesh[3], on placing reliance on Whirlpool Corporation v. Registrar of Trade Marks, Mumbai[4] and Harbanslal Sahnia v. Indian Oil Corpn. Ltd.[5] has observed in para 27 of the judgment as:
“27 The principles of law which emerge are that :
(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.”
The aforesaid principles have been upheld by the Hon’ble Supreme Court in Seth Chand Ratan v. Pandit Durga Prasad[6], Babubhai Muljibhai Patel v. Nandlal Khodidas Barot[7] and Rajasthan SEB v. Union of India[8]. Therefore, the jurisdiction of the Hon’ble High Courts are not completely ousted by the insertion of Article 323-A and 323-B of the Constitution of India.
The jurisdiction of Hon’ble High Court as stated under clause (2) of Article 226, reads as:
“(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.”
In Om Prakash Srivastava v. Union of India[9], the Hon’ble Supreme Court was pleased to observes with regard to ‘cause of action’ vis-à-vis the jurisdiction of the Hon’ble High Court, in paragraph 7, 8 and 14 as under:-
“7. The question whether or not cause of action wholly or in part for filing a writ petition has arisen within the territorial limits of any High Court has to be decided in the light of the nature and character of the proceedings under Article 226 of the Constitution. In order to maintain a writ petition, a writ petitioner has to establish that a legal right claimed by him has prima facie either been infringed or is threatened to be infringed by the respondent within the territorial limits of the Court’s jurisdiction and such infringement may take place by causing him actual injury or threat thereof.
8. Two clauses of Article 226 of the Constitution on plain reading give clear indication that the High Court can exercise power to issue direction, order or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action wholly or in part had arisen within the territories in relation to which it exercises jurisdiction notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories.
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14. The expression “cause of action” is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from another person (see Black’s Law Dictionary). In Stroud’s Judicial Dictionary a “cause of action” is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In Words and Phrases (4th Edn.) the meaning attributed to the phrase “cause of action” in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf. (See Navinchandra N. Majithia v. State of Maharashtra).”
The Hon’ble Supreme Court in the case of Oil and Natural Gas Commission v. Utpal Kumar Basu[10] has observed in paragraph 5 and 6 as:
“5. Clause (1) of Article 226 begins with a non obstante clause — notwithstanding anything in Article 32 — and provides that every High Court shall have power “throughout the territories in relation to which it exercises jurisdiction”, to issue to any person or authority, including in appropriate cases, any Government, “within those territories” directions, orders or writs, for the enforcement of any of the rights conferred by Part III or for any other purpose. Under clause (2) of Article 226 the High Court may exercise its power conferred by clause (1) if the cause of action, wholly or in part, had arisen within the territory over which it exercises jurisdiction, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. On a plain reading of the aforesaid two clauses of Article 226 of the Constitution it becomes clear that a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. In order to confer jurisdiction on the High Court of Calcutta, NICCO must show that at least a part of the cause of action had arisen within the territorial jurisdiction of that Court. That is at best its case in the writ petition.
6. It is well settled that the expression “cause of action” means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. In Chand Kour v. Partab Singh, Lord Watson said:
“… the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.”
Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition. Therefore, the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in paragraphs 5, 7, 18, 22, 26 and 43 are sufficient in law to establish that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Court.”
In light of the observations and directions of the Hon’ble Supreme Court of India, the Hon’ble High Court may exercise their discretion in exercising power under Article 226 of the Constitution of India and safeguarding and protecting the fundamental rights of the persons.
IN CRIMINAL MATTERS
The cardinal legislation governing the jurisdictional question is the Code of Criminal Procedure, 1973 wherein under Chapter – XIII defines the jurisdiction vis-à-vis the criminal subject matter. The provisions provides complete list of ‘cause of action’ for establishing the jurisdiction of the Hon’ble High Court. The Hon’ble Supreme Court in Kaushik Chatterjee v. State of Haryana[11], has summarised the territorial jurisdiction of a court to adjudicate the matter as:
“21. 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 can be summarized in simple terms as follows:
(1) Every offence should ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. This rule is found in Section 177. The expression “local jurisdiction” found in Section 177 is defined in Section 2(j) to mean “in relation to a Court or Magistrate, the local area within which the Court or Magistrate may exercise all or any of its or his powers under the Code”
(2) In case of uncertainty about the place in which, among the several local areas, an offence was committed, the Court having jurisdiction over any of such local areas may inquire into or try such an offence.
(3) Where an offence is committed partly in one area and partly in another, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.
(4) In the case of a continuing offence which is committed in more local areas than one, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.
(5) Where an offence consists of several acts done in different local areas it may be inquired into or tried by a Court having jurisdiction over any of such local areas. (Numbers 2 to 5 are traceable to Section 178)
(6) Where something is an offence by reason of the act done, as well as the consequence that ensued, then the offence may be inquired into or tried by a Court within whose local jurisdiction either the act was done or the consequence ensued. (Section 179)
(7) In cases where an act is an offence, by reason of its relation to any other act which is also an offence, then the first mentioned offence may be inquired into or tried by a Court within whose local jurisdiction either of the acts was done. (Section 180)
(8) In certain cases such as dacoity, dacoity with murder, escaping from custody etc., the offence may be inquired into and tried by a Court within whose local jurisdiction either the offence was committed or the accused person was found.
(9) In the case of an offence of kidnapping or abduction, it may be inquired into or tried by a Court within whose local jurisdiction the person was kidnapped or conveyed or concealed or detained.
(10) The offences of theft, extortion or robbery may be inquired into or tried by a Court within whose local jurisdiction, the offence was committed or the stolen property was possessed, received or retained.
(11) An offence of criminal misappropriation or criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property was received or retained or was required to be returned or accounted for by the accused person.
(12) An offence which includes the possession of stolen property, may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the stolen property was possessed by any person, having knowledge that it is stolen property. (Nos. 8 to 12 are found in Section 181)
(13) An offence which includes cheating, if committed by means of letters or telecommunication messages, may be inquired into or tried by any Court within whose local jurisdiction such letters or messages were sent or received.
(14) An offence of cheating and dishonestly inducing delivery of the property may be inquired into or tried by a Court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person.
(15) Some offences relating to marriage such as Section 494, IPC (marrying again during the life time of husband or wife) and Section 495, IPC (committing the offence under Section 494 with concealment of former marriage) may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided with the spouse by the first marriage. (Nos. 13 to 15 are found in Section 182)
(16) An offence committed in the course of a journey or voyage may be inquired into or tried by a Court through or into whose local jurisdiction that person or thing passed in the course of that journey or voyage. (Section 183).
(17) Cases falling under Section 219 (three offences of the same kind committed within a space of twelve months whether in respect of the same person or not), cases falling under Section 220 (commission of more offences than one, in one series of acts committed together as to form the same transaction) and cases falling under Section 221, (where it is doubtful what offences have been committed), may be inquired into or tried by any Court competent to inquire into or try any of the offences. (Section 184).
Additionally, Section 2(e) of the Code, 1973, defines “High Court” as:
“(e)“High Court” means,-
(i) in relation to any State, the High Court for that State;
(ii) in relation to a Union territory to which the juris- diction of the High Court for a State has been extended by law, that High Court;
(iii) in relation to any other Union territory, the highest Court of criminal appeal for that territory other than the Supreme Court of India;”
In pursuance of the above law as stated in the statute as well as by the Hon’ble Supreme Court, it is abundantly clear that the Hon’ble High Court is having power to adjudicate all the criminal matters pertaining to the jurisdiction. However, with regard to the FIR/complaints registered in another state, the Hon’ble Supreme Court in Navinchandra N. Majithia v. State of Maharashtra[12], was pleased to observe in paragraph 43 as under:
“43. We make it clear that the mere fact that FIR was registered in a particular State is not the sole criterion to decide that no cause of action has arisen even partly within the territorial limits of jurisdiction of another State. Nor are we to be understood that any person can create a fake cause of action or even concoct one by simply jutting into the territorial limits of another State or by making a sojourn or even a permanent residence therein. The place of residence of the person moving a High Court is not the criterion to determine the contours of the cause of action in that particular writ petition. The High Court before which the writ petition is filed must ascertain whether any part of the cause of action has arisen within the territorial limits of its jurisdiction. It depends upon the facts in each case.”
Therefore, the reading the statute along with the judicial decisions highlights that the jurisdiction of Hon’ble High Court is not restricted to the place of registration of the report under Section 154 of the Code 1973. However, it depends on the ‘cause of action’ defined and explained by the Hon’ble Supreme Court in the cases hereinabove and also state that if a part of cause of action arisen within its jurisdictional limit.
In the case of Manish Maheswari v. State of Uttar Pradesh[13], the petitioner preferred a writ petition before the Hon’ble High Court of Karnataka, Bengaluru Bench, for quashing of notice issued under Section 41-A of Code 1973 by the Uttar Pradesh Police. The Hon’ble Court allowed the petition and quashed the notice, while observing in paragraph 50 as under:-
“50. Thus, from the above, it can be gathered that it is the duty of the Constitutional Courts to act and protect against any assault on the fundamental right of a citizen and the Constitutional Courts cannot be shackled in the light of Article 226 (2) of the Constitution of India. In the light of the above rulings and in the facts and circumstances of this case, it is held that the writ petition by the petitioner, who is not an accused and his liberties not being governed by the Code of Criminal Procedure and in the light of the fact that issuance of Section 41A of Cr.P.C Notice being vitiated by malafides and being one without jurisdiction, the writ petition is held to be maintainable. The points for consideration are answered accordingly.”
Notes:
[1] Hong Kong & Shanghai Banking Corporation Ltd. v. Union of India, WP No. 388 of 2003.
[2] Inserted by the 42nd Constitutional Amendment.
[3] 2021 SCC OnLine SC 334.
[4] (1998) 8 SCC 1.
[5] (2003) 2 SCC 107.
[6] (2003) 5 SCC 399
[7] (1974) 2 SCC 706
[8] (2008) 5 SCC 632
[9] (2006) 6 SCC 207
[10] (1994) 4 SCC 711.
[11] (2020) 10 SCC 92.
[12] (2000) 7 SCC 640
[13] Writ Petition No. 11028/2021
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