Nasim Uddin Siddiqui vs State of U.P. and Others

S.K. Phaujdar and J.C. Misra, JJ.—The writ petition was presented before us on 1.4.1998 and upon our direction was to be put up on the next day. On that day, directions were issued calling upon the Respondents to come up with counter-affidavit. The Petitioner was directed to file rejoinder-affidavit thereafter and the matter was directed to be listed on 6.5.1998. A further direction was given to the effect "Subject to his co-operation in the investigation, the Petitioner may not be arrested in Case Crime No. 358 of 1997 under Sections 419, 420, I.P.C. and 7/13 Prevention of Corruption Act, P.S. Gomti Nagar, District Lucknow, till further orders."

On 2.4.1998 itself, after the aforesaid order was passed, Sri Mahendra Pratap, learned A.G.A., made submissions before us touching the jurisdictional point as also the maintainability of the petition. We, thus, directed the matter to come up on 3.4.1998 subject to information to Sri S. M. A. Kazmi, learned Counsel for the Petitioner. The matter could be finally heard, on the question of jurisdiction and maintainability of the prayers, on 13.4.1998.

The Petitioner, Nasim Uddin Siddiqui, claimed to be an erstwhile Member of the Legislative Assembly of Uttar Pradesh and for certain period, he held the post of a Minister in the Cabinet of Ms. Mayawati. He claims to be a setting Member of the Legislative Council at present. He sought for quashing the F.I.R. in the aforementioned case on the ground of mala fide. He also prayed for a protection against arrest in the said case. There was a further prayer that investigation of the case be made over to C. B., C.I.D. for an impartial and independent investigation. There was yet another prayer that the properties of the Petitioner at Banda, attached under an arbitrary order purporting to be u/s 83, Cr. P.C., be released forthwith.

The learned A.G.A. submitted that the incident for which the F.I.R. was lodged took place within the jurisdiction of the Lucknow Bench of this High Court and the order u/s 83, Cr. P.C. was passed by the District and Sessions Judge, Lucknow, and the petition was not at all maintainable at Allahabad. It was further stated that there had also been an order u/s 82, Cr. P.C. issuing a proclamation against the Petitioner depicting him as an absconder and this order was challenged in an application u/s 482, Cr. P.C. before the Lucknow Bench, which is pending.

In reply to these preliminary objections, it was contended by Sri Kazmi that the filing of the application u/s 482, Cr. P.C. against the order of issuing a proclamation u/s 82, Cr. P.C. would not bar the present writ petition as no earlier writ petition was filed before the Allahabad High Court (including the Lucknow Bench) for the reliefs. It was further contended that the warrant of attachment issued u/s 83, Cr. P.C. by the Sessions Judge, Lucknow, could have been executed within his territorial jurisdiction, but for its execution outside such jurisdiction, the endorsement of the District Magistrate of the concerned district (in the instant case of the district of Banda) was necessary. On this point, the learned A.G.A. was directed and he had produced before us a copy of the attachment warrant. On fact we find that no endorsement of the District Magistrate was there nor was there any indication of the properties (movable or immovable) which were to be attached pursuant to the attachment warrant. It was argued by Sri Kazmi that the execution of the attachment warrant beyond the jurisdiction of the Sessions Judge, Lucknow, was a patent illegality touching the jurisdiction of Executing Officer and as such a cause of action certainly arose to the Petitioner to challenge the attachment of properties at Banda through a writ petition.

In reply to this, the learned A.G.A. drew our attention to Sections 465 and 466, Cr. P.C. to show that no irregularity or illegality in the attachment would vitiate the proceedings and the Petitioner could have approached the Sessions Judge, Lucknow, for recalling of the attachment warrant.

In our considered view Sections 465 and 466, Cr. P.C. may not legalise an illegal act when it goes to the root of jurisdiction of the Executing Officer. It is not the legality of the order u/s 83, Cr. P.C. which is under challenge before us. It is the illegal execution of that order which is really under challenge. The Executing Officer could not execute the attachment warrant at Banda without endorsement of the District Magistrate of Banda in terms of Section 83(2), Cr. P.C. This jurisdictional error could not have been cured with the help of Sections 465 and 466, Cr. P.C. and no relief could have been claimed before the Sessions Judge, Lucknow, as his order in issuing a warrant of attachment was really not under challenge. An Executing Authority (here the police) had transgressed its jurisdiction by not following the dictum of law as enunciated u/s 83(2), Cr. P.C. and had attached the properties of the Petitioner at Banda without any endorsement for such action from the District Magistrate. This order, in our view, is always open to be challenged in a writ petition. For the prayer (D), the writ petition is certainly maintainable.

So far the other prayers are concerned, the learned Counsel for the Petitioner relied on the provisions of Article 226(2) of the Constitution to say that although the F.I.R. was lodged within the jurisdiction of the Lucknow Bench of this Court, a consequence of that F.I.R. in the shape of warrant of attachment has followed within the jurisdiction of the Allahabad Bench and as such part of cause of action must be deemed to have arisen within the jurisdiction of Allahabad Bench of our High Court and the Court would be competent to take up the other two prayers also.

We may, however, make a distinction between a cause of action and its consequence in contrast with a part of cause of action arising within our jurisdiction. On the ground of a wrong execution, the execution itself is always open to be challenged but that may not go to the root of the case, i.e., the filing of the F.I.R. It was contended that the whole F.I.R. is vitiated due to mala fide. We may not record any comment on this aspect of the submission as, in our view, the lodging of the F.I.R. is a separate incident and a consequence arising from the F.I.R. may not be a part of a cause of action to be connected with the lodging of the F.I.R. When the F.I.R. was lodged within the jurisdiction of the Lucknow Bench, the consequence thereof is also open to be challenged before the Lucknow Bench but the converse is not true. If a consequence of an F.I.R. happens at Allahabad, the F.I.R., lodged within the jurisdiction of Lucknow Bench may not be open to be challenged. A small illustration may justify our views. If there be a criminal case lodged somewhere in Uttar Pradesh and summons are issued to the accused persons staying under the jurisdiction of different High Courts, the execution of summons or service thereof may be challenged in the jurisdictions of the different High Courts, but not the very initiation of the criminal case. If we concede to the converse, that would lead only to conflict of decisions. Sri Kazmi relied on certain case laws in which the true scope of Article 226(2) of the Constitution has been highlighted. Reference was made to the decisions of Calcutta, Bombay and Madras High Courts. It is not necessary to refer to these cases as they related to ''part cause of action'' having arisen within the jurisdiction of the concerned High Courts. We have indicated above that a consequence of lodging of an F.I.R. would not be a part cause of action so far the institution of the case is concerned and in the name of challenging the consequence, the initiation of the proceeding could never be challenged at a place where the case was not instituted. We are refraining from making any comments on the merits of the case so far its institution is concerned, and we are confining ourselves to the point of legality of execution of the attachment warrant u/s 83, Cr. P.C. only. We have also indicated our views that without the endorsement of the District Magistrate, the attachment warrant issued by the Sessions Judge, Lucknow, could not have been executed in the district of Banda. We have found on facts from the copy of the warrant produced before us that no such endorsement was there.

Upon the above considerations, we are of the view that the present writ petition is not maintainable so far prayers (A), (B) and (C) are concerned. For these prayers, the Petitioner may move the Lucknow Bench, if so advised.

For prayer (D), however, the Allahabad Bench has a jurisdiction as a wrong execution of the warrant of attachment has been made at Banda in violation of the provisions of Section 83(2), Cr. P.C. The attachment of the properties of the Petitioner at Banda, as per the ''Fard Kurki'' (Annexure-''18'' to the writ petition), is illegal and the said attachment is, therefore, quashed.

The above order has been passed on the basis of the copy of the attachment warrant dated 23.2.1998 issued by the Sessions Judge, Lucknow, as was produced before us by the learned A.G.A. It is made clear that the present order would not stand in the way of issuance of a proper execution order u/s 83, Cr. P.C. or its endorsement by the District Magistrate, as required by the law, and any subsequent attachment upon such endorsement.

The present petition, therefore, stands partly allowed, as above.