Ramesh Chandra Soni and Others vs State of Rajasthan and Others

Vijay Bishnoi, J.—This criminal misc. petition under section 482 CrPC has been filed by the petitioners with a prayer for quashing the FIR No. 62/2013 dated 01.02.2013 lodged at Women Police Station, Kota City.

By this order, the question regarding maintainability of this petition at Principal Seat of this Court at Jodhpur is being decided.

The respondent No. 2 has filed a complaint before the Judicial Magistrate No. 3, Kota (North) while contending that her marriage was solemnized with petitioner No. 3 on 27.11.2010 at Jodhpur. It is also contended that prior to the marriage of the respondent No. 2 with petitioner No. 3, engagement ceremony was also taken place at Jodhpur. In the impugned FIR, the respondent No. 2 has alleged that the petitioners have committed cruelty upon her and also committed offence of breach of trust by misappropriating her Stridhan. The incidents regarding cruelty taken place at Kota have also been mentioned in the FIR. Since this Court is deciding the question of maintainability of this criminal misc. petition at Principal Seat of this Court at Jodhpur, there is no need to go into the details of the allegations levelled in the impugned FIR.

Regarding the maintainability of this petition at Principal Seat of this Court at Jodhpur, learned Senior Advocate Mr. M.C. Bhoot assisted by Mr. Arpit Bhoot has argued that since the engagement and the marriage ceremony of the petitioner No. 3 with respondent No. 2 took place at Jodhpur, this criminal misc. petition challenging the impugned FIR, lodged at Kota, is maintainable before this Court at Jodhpur. It is contended that the complainant in the impugned FIR has alleged that she was subjected to cruelty at Jodhpur and Kota and as per those allegations she had an option to file impugned FIR either at Kota or Jodhpur and if the complainant was having option to file complaint against the petitioners at both the places, the petitioners are also having right to challenge the impugned FIR before the Principal Seat of this Court at Jodhpur though the same has been registered at Kota. Mr. Bhoot has further submitted that respondent No. 2 has got cause of action to file the criminal complaint against the petitioners in Jodhpur only because her engagement and marriage with petitioner No. 3 took place at Jodhpur and she was allegedly subjected to cruelty at Jodhpur also and when the cause of action to the respondent No. 2 to lodge the impugned FIR has arisen at Jodhpur, this criminal misc. petition challenging the validity of the impugned FIR registered at Kota is maintainable.

While placing reliance on the Presidential order dated 8.12.1976 and the Notifications dated 23.12.1976 and 12.01.1977 issued by the then Hon''ble Acting Chief Justice of Rajasthan High Court, learned counsel Mr. Bhoot has argued that all cases arising in the revenue districts of Banswara, Barmer, Bikaner, Bhilwara, Chittorgarh, Churu, Dungarpur, Ganganagar, Jaisalmer, Jalore, Jodhpur, Nagaur, Pali, Sirohi and Udaipur are required to be heard and disposed of by this Court at Jodhpur. It is contended that as the case in hand has arisen from the revenue district of Jodhpur, the Principal Seat of this Court at Jodhpur is having all jurisdiction to hear the case.

Mr. Bhoot has also submitted that a bail application under section 438 CrPC was filed before the Principal Seat of this Court at Jodhpur and this Court after hearing the parties concerned, has granted anticipatory bail to the petitioners. It is contended that the order of granting anticipatory bail to the petitioners vide order dated 09.07.2013 was challenged before the Hon''ble Supreme Court by way of special leave petition, however, the said special leave petition has been dismissed by the Hon''ble Supreme Court vide order dated 04.08.2014. It is argued that when the bail application of the petitioners under section 438 CrPC has been entertained by this Court in Principal Seat at Jodhpur and the Hon''ble Supreme Court has affirmed the said order, this criminal misc. petition challenging the validity of the impugned FIR is also maintainable at Jodhpur.

In support of the above contentions, Mr. Bhoot has placed reliance on decisions of Hon''ble Supreme Court rendered in Sri Nasiruddin Vs. State Transport Appellate Tribunal, AIR 1976 SC 331 : (1975) 2 SCC 671 : (1976) 1 SCR 505 ; Navinchandra N. Majithia Vs. State of Maharashtra and Others, AIR 2000 SC 2966 : (2000) 4 CTC 60 : (2000) 10 JT 61 : (2000) 6 SCALE 262 : (2000) 7 SCC 640 : (2000) 3 SCR 82 Supp : (2000) 2 UJ 1502 : (2000) AIRSCW 3157 : (2000) 6 Supreme 114 and Rajasthan High Court Advocates Association Vs. Union of India and Others, (2001) 1 JT 287 : (2000) 8 SCALE 455 : (2000) 5 SCR 743 Supp : (2001) 1 UJ 478 : (2001) AIRSCW 1 : (2001) 3 Supreme 206 as well as of this Court rendered in Mohd. Harun and Another Vs. Nissar Ahmed and Others and The State of Rajasthan and Another Vs. Smt. Rekha Mahawar and Others, (2011) ACJ 833 : (2009) 4 RLW 3201 : (2011) 2 TAC 890 .

Per contra, learned Public Prosecutor and the learned counsel for the respondent No. 2 have argued that this criminal misc. petition challenging the impugned FIR is not maintainable at Principal Seat of this Court at Jodhpur because with the lodging of the impugned FIR the case has arisen in the revenue district of Kota and, therefore, the Jaipur Bench of this Court can only hear and dispose of the present case.

Heard learned counsel for the rival parties.

It will be relevant to mention here that the Permanent Bench of High Court of Rajasthan has been established at Jaipur by order of His Excellency President of India dated 08.12.1976. The said order dated 08.12.1976 reads as under:

"In exercise of the powers conferred by sub-section (2) of Section 51 of the States Reorganisation Act, 1956 (37 of 1956), the President, after consultation with the Governor of Rajasthan and the Chief Justice of the High Court of Rajasthan, is pleased to make the following Order, namely:

Short title and commencement.--(1) This Order may be called the High Court of Rajasthan (Establishment of a Permanent Bench at Jaipur) Order, 1976.

(2) It shall come into force on 31-1-1977.

Establishment of a Permanent Bench of the Rajasthan High Court at Jaipur.--There shall be established a permanent Bench of the High Court of Rajasthan at Jaipur, and such Judges of the High Court of Rajasthan, being not less than five in number, as the Chief Justice of that High Court may, from time to time nominate, shall sit at Jaipur in order to exercise the jurisdiction and power for the time being vested in that High Court in respect of cases arising in the districts of Ajmer, Alwar, Bharatpur, Bundi, Jaipur, Jhalawar, Jhunjhunu, Kotah, Sawai Madhopur, Sikar and Tonk.

Provided that the Chief Justice of that High Court may, in his discretion, order that any case or class of cases arising in any such district shall be heard at Jodhpur.

New Delhi. 8-12-1976.

Sd/- F.A. AHMAD President"

Pursuant to the Presidential Order dated 08.12.1976, the then Hon''ble Chief Justice of this Court issued a Notification dated 23.12.1976 carving out jurisdiction between the cases to be heard at Principal Seat, Jodhpur and the Jaipur Bench of this Court. The Notification dated 23.12.1976 reads thus:

"RAJASTHAN HIGH COURT, JODHPUR

NOTIFICATION

No. 1/J.B.

Dated 23-12-1976

In pursuance of the High Court of Rajasthan (Establishment of a Permanent Bench at Jaipur) Order, 1976, and in exercise of the powers under sub-section (2) of Section 44 of the Rajasthan High Court Ordinance, 1949, read with Sections 54 and 57 of the Sates Reorganisation Act, 1956, the Hon''ble the Chief Justice has been pleased to order that with effect from the 31-1-1977--

(a) all cases arising in the revenue districts of Banswara, Barmer, Bikaner, Bhilwara, Chitorgarh, Churu, Dungarpur, Ganganagar, Jaisalmer, Jalore, Jodhpur, Nagaur, Pali, Sirohi and Udaipur (except such case or class of cases as may by special order be transferred to the Jaipur Bench) shall be disposed of by the Court at Jodhpur, and

(b) all cases arising in the revenue districts of Ajmer, Alwar, Bundi, Bharatpur, Jaipur, Jhalawar, Jhunjhunu, Kotah, Sawai Madhopur, Sikar and Tonk (except such case or class of cases as may by special order be transferred to the Court at Jodhpur) shall be disposed of by the Court at Jaipur.

Provided that a Vacation Judge, whether sitting at Jodhpur or at Jaipur may hear any case irrespective of the district in which it has arisen for the purpose of deciding any matter which in his opinion requires immediate action.

Explanation.- A writ case shall be deemed to arise in the district where the first order pertaining to that case was passed by a court, tribunal or authority irrespective of the district in which the appeal or revision from that order is heard and irrespective also of the fact whether or not there has been any modification or reversal of the order in appeal or revision.

Sd/- Ved Pal Tyagi Chief Justice 23-12-76."

Thereafter, the then Hon''ble Chief Justice issued notification dated 12.01.1977 and substituted the explanation appended to notification dated 23.12.1976. The notification dated 12.01.1977 issued by the then Hon''ble Acting Chief Justice is reproduced hereunder:

"In the above order for the explanation the following may be substituted:

''Explanation. - A writ case shall be deemed to arise in the district where the cause of action for issuing the first order pertaining to that case passed by a court, tribunal or authority has arisen irrespective of the district in which the appeal or revision from that order is heard and irrespective also of the fact whether or not there has been any modification or reversal of the order in appeal or revision.''

Sd/- Ved Pal Tyagi Chief Justice 12-1-1977."

As per the above quoted Presidential Order and the Notifications, all cases arising in the revenue Districts of Banswara, Barmer, Bikaner, Bhilwara, Chittorgarh, Churu, Dungarpur, Ganganagar, Jaisalmer, Jalore, Jodhpur, Nagaur, Pali, Sirohi and Udaipur are required to be disposed of by Principal seat at Jodhpur and all cases arising in the revenue districts of Ajmer, Alwar, Bundi, Bharatpur, Jaipur, Jhalawar, Jhunjhunu, Kota, Sawai Madhopur, Sikar and Tonk shall be disposed of by the Court at Jaipur. However, Hon''ble the Chief Justice of Rajasthan High Court has power to transfer a case or class of cases, which are liable to be disposed of either at Principle Seat at Jodhpur or Jaipur Bench, to the Court at Jodhpur or Jaipur by passing a special order.

Now the question, in the present matter, comes that where the case has arisen. After taking into consideration the facts of the present matter, I am of the firm opinion that in the present matter, the case has arisen at the revenue District Kota only. The case, in the present matter, arose with the lodging of the impugned FIR at Kota. As per the Presidential Order and Notification passed by the then Hon''ble Acting Chief Justice, quoted above, the Jaipur Bench of this Court shall have exclusive jurisdiction to hear and dispose of a case arising in District Kota except such case is transferred to the Court of Jodhpur by a special order by Hon''ble the Chief Justice of this Court. Hon''ble Supreme in Rajasthan High Court Advocates'' Association vs. Union of India and Ors. (supra), while taking into consideration the above quoted Presidential Order and Notifications, has held as under:

"It was submitted at the end by the learned counsel for the appellant that the Division Bench of the High Court in its impugned order has observed that the permanent Bench at Jaipur shall have "exclusive jurisdiction" to hear the cases arising out of the 11 specified districts and the High Court at Jodhpur shall not have jurisdiction to hear those cases which fall within the territorial jurisdiction of Jaipur Bench. He submitted that the use of word "exclusive" pre-fixed to "jurisdiction" is uncalled for. We find no substance in this contention as well. The purpose of the Presidential Order is to carve out and define territorial jurisdiction between the principal seat at Jodhpur and the permanent Bench seat at Jaipur. The cases are to be heard accordingly, unless the Chief Justice may exercise in his discretion the power vested in him by the proviso to para 2 of the Presidential Order."

In view of above legal position, the contention of Mr. Bhoot that as marriage of the respondent No. 2 and the petitioner No. 3 was solemnised at Jodhpur or because she has levelled certain allegations regarding commission of cruelty by the petitioners at Jodhpur, the case has arisen in Jodhpur, is not tenable.

The decision of Hon''ble Supreme Court rendered in Navinchandra N. Majithia vs. State of Maharashtra and Ors. (supra) is of no help to the petitioners because in that case, the appellant had questioned the right of complainant to lodge the FIR against him at Shillong, in State of Meghalaya while claiming that all the alleged incidents of commission of crime had taken place at Mumbai only and, therefore, the action of the police of Shillong to entertain the FIR against the appellants therein is bad. Here in the present case, the petitioners have not questioned the right of the respondent No. 2 of filing the impugned FIR at Kota.

More over, in Navinchandra N. Majithia vs. State of Maharashtra and Ors. (supra), the Hon''ble Supreme Court, while taking into consideration the provisions of Article 226 of the Constitution of India, has held that the writ petition filed by the petitioner challenging the impugned FIR against him with alternative prayer of issuing a direction to the State of Meghalaya to transfer the investigation to the Mumbai Police was very much maintainable at Bombay High Court because all the alleged incidents in the impugned FIR against the appellant had taken place at Mumbai and the Bombay High Court should have issued a mandamus directing the State of Meghalaya to transfer the investigation to Mumbai Police. Such a situation does not exist in the present case as the petitioners have not claimed that the impugned FIR at Kota is not maintainable because all alleged incidents took place at Jodhpur and the petitioners have also not prayed that the investigation of the impugned FIR be transferred to Jodhpur Police.

More over, in view of the authoritative pronouncement by the Hon''ble Supreme Court in later decision rendered in Rajasthan High Court Advocates'' Association vs. Union of India and Ors. (supra), after taking into consideration the above quoted Presidential Order and Notifications, it is clear that cases arising in Kota District can only be heard and decided by this Court at Jaipur Bench unless the case is transferred by the Hon''ble Chief Justice to Principal Seat at Jodhpur by a speaking order.

So far as contention of the learned counsel for the petitioners regarding grant of anticipatory bail to the petitioners by the Court at Jodhpur is concerned, it appears that question of jurisdiction was neither raised nor decided by this Court at the time of decision of the bail applications of the petitioners under section 438 CrPC and this Court had no occasion to take into consideration the above quoted Presidential Order and Notifications.

Though the Hon''ble Supreme Court has dismissed the special leave petition filed on behalf of the complainant against the order of granting anticipatory bail to the petitioners, but the same will not change the situation because the Hon''ble Supreme Court has not granted leave to file appeal and has simply dismissed the special leave petition by a non-speaking order. The Hon''ble Supreme Court in Kunhayammed and Others Vs. State of Kerala and Another, AIR 2000 SC 2587 : (2000) 162 CTR 97 : (2000) 72 ECC 681 : (2001) 129 ELT 11 : (2000) 245 ITR 360 : (2000) 9 JT 110 : (2000) 5 SCALE 167 : (2000) 6 SCC 359 : (2000) 1 SCR 538 Supp : (2000) 119 STC 505 : (2000) 113 TAXMAN 470 : (2000) 2 UJ 1158 : (2000) AIRSCW 4641 : (2000) AIRSCW 4557 : (2000) AIRSCW 2608 : (2000) 8 Supreme 202 : (2000) 5 Supreme 181 : (2000) 7 Supreme 70 has held as under:

"To sum up, our conclusions are:

(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.

(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal.

(iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.

(iv) An order refusing special leave to appeal may be a non- speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 if the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.

(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.

(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule (1) of Order - 47 of the CPC."

[Emphasis supplied]

Hence, as per the law laid down by the Hon''ble Supreme Court in above referred judgment, the dismissal of SLP of the complainant, filed against the order of granting anticipatory bail to the petitioners by this Court at Jodhpur, would not mean that this criminal misc. petition challenging the impugned FIR lodged at Kota is maintainable. As observed earlier, this Court at Jodhpur while granting anticipatory bail to the petitioners has not decided the issue regarding jurisdiction of this Court to hear the bail applications in relation to an FIR lodged in Kota District and the Hon''ble Supreme Court has also simply dismissed the special leave petition filed by the complainant against the order of granting anticipatory bail to the petitioners by this Court at Jodhpur without granting leave to file appeal.

In view of above discussions, it is held that this criminal misc. petition, challenging the impugned FIR lodged in the revenue district of Kota, is not maintainable before the Principal Seat of this Court at Jodhpur.

Consequently, this criminal misc. petition is dismissed.

It is noticed that two applications have been filed, one is on behalf of Rajasthan High Court Advocates'' Association, Jodhpur for impleading it as party respondent, and another is on behalf of petitioners to take certain documents on record.

Since the instant criminal misc. petition has itself been dismissed, both the applications are also dismissed.