Lack of jurisdiction cannot decide transfer of criminal cases, says Supreme Court

New Delhi (ILNS): The Supreme Court has observed that it cannot order transfer of criminal case under Section 406 CrPC, on the ground of lack of territorial jurisdiction, even before evidence is marshaled while dismissing an appeal seeking transfer of criminal cases.

Section 406(1) in The Code Of Criminal Procedure, 1973(1) state that Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.

The Single Bench of Justice V. Ramasubramanian passed this Judgment on a petition filed by Kaushik Chatterjee, seeking transfer of three criminal cases from the Additional Judicial Magistrate, Gurugram, Haryana, to any competent court in New Delhi. 

The petitioner was appointed on August 4, 2016 as the Group Chief Risk Officer ­Executive Director of a non­banking finance company. Upon his appointment, the petitioner joined the Delhi office of the second respondent­, the company, on the same day and was transferred to Mumbai on August 10, 2017. The petitioner resigned in July­ 2018.

Three complaints were lodged by the second respondent (the company) with the Station House Officer Civil Lines, Gurugram, under Sections 406, 408, 420, 120­B and 34 of the IPC. These were in respect to three loans sanctioned by the company while the petitioner was in service.

The petitioner has approached the apex court for the transfer of these three criminal cases cited above on the ground that no cause of action arose in Gurugram. He had prayed that the cases should be transferred to Delhi.

While considering the submission put forward by Senior Counsel Vikas Singh on behalf of the petitioner, the court observed: “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 revolve 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 to 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.”

The Court also held that the  words “tries an offence” are more appropriate than the words “tries an offender” in section 461 (l). 

“A 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. A proceeding which is void under Section 461 cannot be saved by Section 462. The focus of clause (l) of Section 461 18 is on the “offender” and not on the “offence”. If clause (l) had used the words “tries an offence” rather than the words “tries an offender”, the consequence might have been different”, held the Court.

“From the above discussion, 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 proceedings of a Magistrate void, if he tried an offender, when not empowered by law to do.”

Regarding the jurisdiction of criminal Courts in inquiries and trials the court considered the principles laid down in Sections 177 to 184 of Cr.P.C. 

“As seen from the pleadings, the type of jurisdictional issue, raised in the cases on hand, is one of territorial jurisdiction, at least 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,” observed the apex court.

The Court therefore in light of above observation dismissed the transfer petitions.

Read the judgment here;