Patna High Court
Dipanker Dutt Gupta And Ors. vs State Of Bihar And Anr. on 11 April, 2007
Equivalent citations: 2007CRILJ4360
Author: Shiva Kirti Singh
Bench: Shiva Kirti Singh
ORDER Shiva Kirti Singh, J.
1. The three petitioners of this application under Section 482 of the Code of Criminal Procedure (for short 'the Code') are the three named accused of Complaint Case No. 795 (C) of 2000 pending before the SDJM. Patna. They have prayed for quashing of order dated 31-10-2005 passed by learned SDJM, Patna whereby he has rejected the objection raised by the petitioners to the continuation of complaint case in any Court at Patna on the ground of jurisdiction.
2. It appears that earlier the petitioners had moved this Court through a petition under Section 482 of the Code and the said Cr. Misc. No. 24014 of 2001 was disposed of by this Court on 2-1-2002 vide Annexure-1. This Court on that occasion allowed the prayer of the accused persons, the petitioners, for representation through lawyer as per Section 205 of the Code. But so far as the prayer for quashing of criminal case on account of lack of jurisdiction was concerned, it relied upon judgment of the Apex Court in the case of Trisuns Chemical Industry v. Rajesh Agarwal in which it has been held that the Magistrate taking cognizance of offence must necessarily have territorial jurisdiction to try the case as well, is an erroneous view. Hence, at that stage when only order of cognizance had been passed by the Magistrate, this Court disallowed the prayer for quashing of the case on ground of lack of territorial jurisdiction in the Magistrate taking cognizance. However, liberty was given to the petitioners to raise the plea of jurisdiction at appropriate stage and it was observed that if such plea is raised then the Magistrate must decide the same in accordance with law as per observation of the Supreme Court in paragraph 12 of the Judgment in the case of Trisuns Chemical Industry v. Rajesh Agarwal (supra). In paragraph 12 of the said judgment, the Apex Court has observed that after taking cognizance the Magistrate may have to decide as to the Court which has jurisdiction to enquire into or try the offence but this would be only at the post cognizance stage and not earlier.
3. Accordingly, the petitioners filed an application before the Court below on 7-2-2002 raising objection to the continuation of the criminal proceeding at Patna because, according to the petitioners, the entire cause of action has arisen at Calcutta and hence, enquiry or trial was required to be done only by a competent Court at Calcutta. The complainant, O. P. No. 2 herein, filed his objection to the said application and thereafter by the impugned order the learned Sub-Divisional Judicial Magistrate has rejected the objection of the petitioners, as noticed earlier. In the impugned order, the learned Magistrate has first noticed that quashing application filed by the petitioners earlier before this Court has been rejected by this Court on the basis of judgment of the Supreme Court in the case of Trisuns Chemical Industry v. Rajesh Agarwal. Thereafter he has taken note of a stand of the complainant that the offence under Section 120B of the I.P.C. appearing from the complaint petition has taken place at Patna and, therefore, some part of cause of action had arisen at Patna and the Courts at Patna had territorial jurisdiction. For this purpose, learned Magistrate took note of averments in paragraphs 3, 4, 5 and 6 of the complaint petition wherein it has been alleged that accused Nos. 2 and 3 had come to Patna and, therefore, those facts would show formation of conspiracy at Patna. He further held that the prayer of the petitioners for transfer of the case to competent Court at Calcutta could not be ordered under Sections 408 or 407 of the Code. He further held that the alleged occurrence of conspiracy to commit the offences had taken place at Patna.
4. On behalf of the petitioners, it was submitted that a perusal of the entire complaint petition would show that the complainant, at the relevant time was working as Depot Manager of Patna Branch of East India Pharmaceutical Works Limited a public limited Company (hereinafter referred to as 'the Company'). The accused Nos. 1 to 3 were Managing Director, Divisional Sales Manager and Assistant Law and Administrative Manager of the Company at Calcutta Office. On account of a Public Interest Litigation and police action, it came to light that spurious drugs purporting to be of different drug manufacturing companies were found in the market at Patna. According to paragraph 3 of the complaint petition, some spurious medicines claiming to be the product of the company, were also seized on 12-5-2000. According to paragraph 4 of the complaint petition, on 15-5-2000 accused Nos. 2 and 3 came to Patna depot without announcement and started making enquiry from the complainant and one Sri T. K. Mukherjee, another employee. The meeting proposed for 16-5-2000 was cancelled. As per paragraph 5 of the complaint petition, accused Nos. 2 and 3 asked the complainant and Sri T. K. Mukherjee to visit the Head Office of the company at Calcutta on 17-5-2000 to attend an emergent meeting called by the Managing Director, accused No. 1. Then accused Nos. 2 and 3 went back to Calcutta on the same day. According to paragraph 6 of the complaint petition, the talks between accused Nos. 2 and 3 and the complainant and Sri Mukherjee were overheard by some of the witnesses. Thereafter, in paragraphs 7 to 15 events as allegedly took place at Calcutta on 17-5-2000 in the office of accused No. 1, the Managing Director where allegedly the complainant and Sri T. K. Mukherjee were threatened and coerced to tender their resignation, have been mentioned. It has further been mentioned that the complainant and Sri Mukherjee came back to Patna on 19-5-2000 and they allegedly went to Police Station where they were advised to file a complaint before the Court. In paragraph 15 it has been alleged that the accused persons in pursuance of a criminal conspiracy made false inducement and representation before the complainant and Sri Mukherjee and thereby called them at Calcutta and thereafter committed the offence of extortion, cheating, wrongful confinement and defamation.
5. Learned Counsel for the petitioners also drew attention of this Court to paragraph 3 of statement of the complainant on solemn affirmation contained in Annexure-3. In that statement the complainant has confined the happenings at Patna by stating that accused Nos. 2 and 3 came to Patna office and talked for a long time while sitting in the Branch Office. The complainant refused to sell Livoten capsules, a product of the company. The accused Nos. 2 and 3 went back on the same evening and before that they directed the complainant and Sri Tapan Kumar Mukherjee to come to Managing Director on 17th. Thereupon the complainant went to Head Office at Calcutta where he was sent to the chambers of the Managing Director where the alleged occurrence of abuse, coercion and obtaining of forced resignation took place on 17-5-2000.
6. Learned Counsel for the petitioners also referred to deposition of Sri Tapan Kumar Mukherjee in course of enquiry in the complaint case contained in Annexure-4 in which the facts are more or less as alleged by the complainant in the petition of complaint and in his statement on solemn affirmation.
7. On the basis of aforesaid facts, it was submitted on behalf of the petitioners that the petition of complaint does not disclose any offence including the alleged offence of conspiracy taking place at Patna. It was highlighted that accused Nos. 2 and 3 came to Patna with a view to make enquiries and as a result of their enquiry they decided to call the complainant and another employee Sri Tapan Kumar Mukherjee, to the Head Office at Calcutta. These facts even if unrebutted, according to learned Counsel for the petitioners, would constitute neither the offence of conspiracy nor any other offence and even if the submission of other side that there may have been meeting of the mind before hand is accepted, such meeting of mind involving the Managing Director, accused No. 1, who remained at Calcutta, must have taken place at Calcutta and not at Patna.
8. On the other hand, learned Counsel for the complainant, O. P. No. 2, laid great stress on the fact that complainant has alleged conspiracy, an offence under Section 120-B of the I.P.C. and in a case of conspiracy the offence or part of it may be committed at a place other than the place where the actual offence is committed. According to him, meeting of mind and formation of conspiracy took place at Patna as per allegations in the complaint petition and, therefore, the impugned order is legal and proper order and the criminal case can be enquired or tried at Patna.
9. On behalf of the petitioners reliance was placed upon judgment of the Supreme Court in the case of M.P. State v. K.P. Ghiara AIR 1957 SC 196 : 1957 Cri LJ 322, in support of a proposition that the venue of enquiry or trial in a criminal case is primarily to be determined by the averments in the complaint or chargesheet unless the averments made therein are positively disapproved. There is no dispute with the said proposition of law. The issue in this case is whether the averments in the complaint petition create a jurisdiction in the Courts at Patna or not. On behalf of the petitioners reliance was also placed upon judgment of the Apex Court in the case of Y. Abraham Ajith v. Inspector of Police to submit that as indicated in, paragraph 12 of the said judgment, the crucial question is whether any part of the cause of action arose within the jurisdiction of the Court concerned.
10. In that judgment the Court indicated that in terms of Section 177 of the Code, it is the place where the offence was committed that shall be treated as the place where the cause of action arose. "In essence it is the cause of action for initiation of the proceedings against the accused". It was noticed that ordinarily the expression "cause of action" is used in civil cases whereas under the Code the reference is to the local jurisdiction where the offence is committed. But these variations of expressions do not make the position different and the expression "cause of action" is not a stranger to criminal cases:
11. The Supreme Court in that judgment considered different meanings given to the expression "cause of action". The most relevant for the purpose of criminal cases is the meaning of the expression "cause of action" given in the Halsbury's Laws of England (4th Edn.) in the following words:
'Cause of action' has been defined as meaning simply a factual situation, the existence of which entities one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. ' Cause of action' has also been taken to mean that a particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the technical cause of action.
(Emphasis mine).
12. On the other hand, on behalf of the O.P. No. 2, reliance was placed upon a judgment of the Supreme Court in the case of Purushottamdas v. State of W.B. . That case decided another principle of law that a Court competent to try the charge of criminal conspiracy on account of clear territorial jurisdiction is also competent to try other offences in pursuance of conspiracy committed outside its jurisdiction. That principle is not in issue in the present case. The issue arising in this case is whether on the allegations made in the complaint petition it can be held that the offence of criminal conspiracy was committed within the jurisdiction of Court at Patna.
13. On behalf of O.P. No. 2, reliance has also been placed upon a judgment of the Supreme Court in the case of Abdul Kadar v. State 1964 (1) Cri LJ 648 for highlighting the proposition discussed in paragraph 6 of the judgment that the offence of conspiracy is not limited to the parties of conspiracy at the moment of its formation but also to those who are members of the conspiracy during its continuance and in that sense it is to be treated as a continuing offence. In this judgment it is clearly indicated that the offence of conspiracy is complete as soon as an agreement is made between the conspirators. This proposition can be of some use in the present case for deciding the issue - whether the agreement of conspiracy in the present case was formed at Patna or at Calcutta.
14. Another judgment relied upon by learned Counsel for the O.P. No. 2 is of Supreme Court in the case of N.M.M. Y. Momin v. State of Maharashtra . In this case it was held that for the offence of conspiracy under Section 120-B of the I.P.C. mere agreement is sufficient and conspiracy need not be proved by direct evidence. There is no dispute over the aforesaid proposition of law which was examined in the aforesaid judgment for finding out validity of the conviction under Section 120B of the I.P.C.
Lastly, learned Counsel for the O.P. No. 2 relied upon judgment of the Apex Court in the case of Mohd. Usman Mohd. Hussain v. State of Maharashtra , for the same proposition that for an offence under Section 120B of the I. P. C, the agreement may be proved by necessary implications and the prosecution need not necessarily prove any express agreement between the offenders.
15. While replying to the submissions advanced on behalf of the complainant, learned Counsel for the petitioners placed reliance upon a judgment of the Supreme Court in the case of P. K. Narayanan v. State of Kerala . In this case while dealing with offence of criminal conspiracy, its ingredients and proof, the Court held that the motive and preparation by themselves do not constitute conspiracy. It was highlighted that the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. This judgment is also in the context of an issue whether there was sufficient evidence to infer criminal conspiracy amongst the accused persons. That issue is not relevant in the present case in which the issue is only of deciding territorial jurisdiction by finding whether on the allegations made in the petition of complaint it can be inferred that offence of conspiracy was hatched by an agreement at Patna or not.
16. On a careful consideration of rival contentions as well as the facts on record, particularly the averments in the complaint petition it is found that there is an allegation in paragraph 15 of the complaint petition that the accused persons, which will include accused No. 1, who never came to Patna, in pursuance of a criminal conspiracy, made false inducement and representation before the complainant and Sri Mukherjee and called them at Calcutta and thereafter committed various other offences. It is not found anywhere in the petition of complaint as to where the criminal conspiracy was hatched. Accused Nos. 2 and 3 had come from Calcutta Head Office to Patna Branch Office of the company for holding a meeting in context of an enquiry into seizure of some spurious medicines appearing to be products of the Company. A meeting of the Sales Personnel of the company was to be held on 16-5-2000 but the same was cancelled and on 15-6-2000 accused Nos. 2 and 3 came to Patna Depot of the Company and started an enquiry. After obtaining the views of the complainant and another person, the accused Nos. 2 and 3 left for Calcutta after asking the complainant and another person to attend an emergent meeting called by the Managing Director of the company, accused No. 1, at Calcutta on 17 5-2000.
17. Keeping in view the submissions of learned Counsel for the O. P. No. 2 that the offence of conspiracy or meeting of mind for conspiracy may not be proved directly and may have to be inferred from circumstances, it has to been seen whether the aforesaid facts and circumstances even if remaining unrebutted can show the formation of agreement, the essential ingredient of conspiracy, to have taken place at Patna. The answer has to be in the negative only. There can be chance of meeting of mind of the three accused, the accused No. 1, the Managing Director being the senior most and decision making authority, only at Calcutta either before accused Nos. 2 and 3 were left for Patna or after they went back from Patna. As per averments in the petition of complaint the agreement between all the three accused and some others for criminal conspiracy could not have taken place at Patna. If such an agreement took place it can be inferred to have taken place only at Calcutta where the most important member of the alleged conspiracy, accused No. 1, was posted and as per allegations, he never came to Patna.
18. In view of aforesaid discussion and finding, following the judgment of the Supreme Court in the case of Y. Abraham Ajith v. Inspector of Police 2004 Cri LJ 4180 (supra) it is held that the facts which allegedly took place within the territorial jurisdiction of Courts at Patna do not give cause to enforce a legal enquiry for redressal in a Court of law. The facts and circumstances allegedly forming infraction of the right of the complainant or the immediate occasion for action against the accused persons did not happen in this case at any place other than Calcutta. Since no cause of action arose at Patna hence, in view of Section 177 of the Code it has to be held that the Magistrate at Patna has no jurisdiction to deal with the enquiry or trial in respect of Complaint Case No. 795(C) 2000. The impugned order is, therefore, found to be against law. It is accordingly set aside.
19. As a result, the criminal proceedings against the petitioners in the aforesaid complaint case are quashed on the ground of lack of territorial jurisdiction in the Magistrate at Patna to deal with the matter. The complaint be returned to O.P. No. 2, the complainant, who, if he so chooses, may file the same in the appropriate Court for being dealt with in accordance with law.
This application is accordingly allowed.