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Judgment
(PER : URMILA JOSHI PHALKE, J.)
Heard.
Rule. Rule made returnable forthwith. Heard finally by the consent of learned Counsel appearing for the respective parties.
The Petitioner No.1 has come with a case that she is the complainant who has filed a police complaint with Nagpur Police against the illegal activities of Gujarat Police. However, no action was taken by Nagpur Police despite her repeated request. As per her contention, Petitioner No. 2 is the victim of Police force and Police atrocities in connection with the crime registered at Vapi Police Station. It was contended that, Crime No. 112000483233307/2023 was registered on 20.09.2023 under Sections 195, 323, 341, 342, 389, 506 (2) and 120B of the Indian Penal Code at Vapi Police Station. On 20.09.2023, the Gujarat Police alongwith the Nagpur Police visited her house and taken her husband and her husband was arrested without following the guidelines issued in the case of D.K. Basu Vs. State of West Bengal.
The Petitioner No. 2 was arrested without warrant by the Police and thus violated Article 21 as well as Article 22 of the Constitution of India. The Petitioner No. 2, though taken into custody on 20.09.2023 and taken to Vapi and produced before the Magistrate after 45 hours. Thus, her husband was in Police Station Vapi for more than 30 hours. Despite her husband was taken by the Vapi Police on 20.09.2023 itself he was shown to be arrested on the next day around 12:00 o’clock. The grounds of arrest are not furnished to him as well as none of the relatives were informed as to the arrest of the Petitioner No. 2. She has immediately made complaint to Ambazhari Police Station as well as Rana Pratap Nagar Police Station regarding the act of Vapi Police. However, no cognizance was taken and hence she approached this Court.
Heard Mr. Dharmadhikari, learned Counsel for the Petitioners, who reiterated the contentions and submitted that, the Petitioner No.2 is seeking declaration that he is arrested in connection with Crime No. 112000483233307/2023 registered at Vapi Police Station. His arrest as well as the subsequent detention are illegal being it is violative of Articles 21 and 22 of the Constitution of India. The Petitioner No.2 was taken into custody in the morning at about 20.09.2023. However, he was produced before the Magistrate on 22.09.2023. Thus, he was not produced before the Magistrate within 24 hours. Thus, there is a total non-compliance of Sections 41B(a), 41B(b) and 41B(c) as well as 41D of the Code of Criminal Procedure.
He submitted that, the Petitioner No.2 was taken by the Respondent No. 9 with the help of Nagpur Police without giving any reason. He was not allowed to contact his wife. The Petitioner No. 2 was arrested without complying with the above said provisions. Regarding said illegal arrest, the Petitioner No. 1 has immediately made a complaint to the Ranapratap Nagar Police Station, making grievance against the Police stating that in violation of the provisions of law, her husband was arrested. A complaint was made by the Petitioner No.2 on 21.08.2023, making grievance regarding the violation of provisions of Trade Marks Act against Welspun company and its office bearers. He has also made a complaint to Ranapratap Nagar Police Station making grievance against Welspun company and its office bearers for violation of provisions of Trade Marks and Cheating. He has also made a complaint to the District Collector for violation of Consumer Protection Act alleging false/ misleading advertisements and unfair trade practices and violation of Trade Marks Act. On 02.11.2023, the application was addressed by the Petitioner No. 2 to the Commissioner of Police making grievance against Vapi Police. Complaint was also made to the Ranapratap Nagar Police Station on 30.10.2023. Thus, all these events show that there was total non-compliance of the provisions as well as the guidelines issued by the Hon’ble Apex Court in the case of D.K. Basu Vs. State of West Bengal and, therefore, the Petitioners approached this Court with a prayer to initiate action of contempt against Gujarat Police and Nagpur Police and initiation of the action against the Police Officers.
This Petition is strongly objected by the Respondent No. 9/the Police Inspector of Vapi Police Station and preliminary objection raised by him on the ground that an FIR by Crime No. 112000483233307/2023 dated 20.09.2023 came to be registered against the Petitioner No.2 at Police Station Vapi City, which comes under the jurisdiction of the State of Gujarat and the Respondent No.9 is serving as Inspector at Vapi Police Station, Gujarat. The investigation also has been carried out in the State of Gujarat. In pursuance of the registration of the above said FIR, the petitioners were produced before the Additional Chief Judicial Magistrate Vapi. Thus, in view of the above, it is clear that the material and substantial cause of action had arisen in the State of Gujarat. Merely as the Petitioner No. 2 came to be arrested at Nagpur, this Court is not having any jurisdiction to entertain the present Petition under Article 226 of the Constitution of India.
It is contended that, it is settled position of law that, in criminal cases when an accused is arrested in the State different from where FIR is lodged, two High Courts could not simultaneously exercise jurisdiction. The High Court under whom the FIR came to be registered and the cause of action had arisen is only having the territory jurisdiction to issue direction under Article 226 of the Constitution of India. In the instant matter, the FIR came to be registered and the cause of action had also arisen at Vapi Police Station, which is under the jurisdiction of Gujarat High Court. Therefore, the High Court of Gujarat is only having the jurisdiction to redress the grievance of the Petitioners.
Mr. Mardikar, learned Senior Counsel for the Respondent No. 9, vehemently submitted that before arresting the Petitioner No.2 there was a communication by the Respondent No. 9 to Ambazari Police Station for seeking cooperation to enquire with the Petitioner No. 2 on 06.09.2023. The general diary entries were taken in respect of the said communication on 06.09.2023 at Ambazari Police Station. Thereafter on 20.09.2023 the Respondent No. 9 investigating Officer has applied to the Ranapratap Nagar Police Station intimating the purpose of his visit and the investigation in connection with the above said crime. The general diary entry was taken by the Ranapratap Nagar Police Station and thereafter Petitioner No. 2 was taken into custody initially for enquiry purpose. He submitted that, except the assistance taken from the Ranapratap Nagar Police Station, no further act was conducted at Nagpur.
He invited our attention towards the application by Respondent No. 9 addressed to the Ambazari Police Station, which is on record page 300 stating that he has to record the statement of Petitioner No. 2 in connection with the application received at the Police Station, Vapi. Accordingly, the general diary entry at Ambazari Police Station was taken on 06.09.2023 at 12:32 p.m., which shows that the Respondent No. 9 had been from Vapi Police Station, District Valsad to Nagpur to record the statement of Petitioner No. 2. The second general diary entry dated 06.09.2023 was taken at 02.09 p.m., shows that when he had been to the house of Petitioner No. 2, Petitioner No. 2 was not present, but Petitioner No. 1 was present and notice was given to her, but she denied to take the notice and thereafter he left for Valsad, Gujarat. Thereafter on 20.09.2023, the Duty Officer of the Ranapratap Nagar Police Station received the communication from Respondent No. 9 stating that they came to Nagpur to arrest the Petitioner No. 2 and requested to take entry in the Station Diary. The arrest memo of the accused shows that, on 21.09.2023, the Petitioner No. 2 was arrested at Gujarat and he was produced before the Magistrate within 24 hours. The arrest memo further shows that, the arrested person after being informed of the grounds of arrest and his legal rights, taken into custody on 21.09.2023 at around 11:30 p.m., and an intimation was given to the nephew, namely Ishan Hariprasad Bhardaraj regarding the arrest of the Petitioner No.2. Thus, he submitted that as far as the maintainability of the present Petition is concerned, it is not maintainable on the ground of territorial jurisdiction.
Upon perusal of the entire Petition, it is evident that, the reliefs sought by the Petitioners are primarily directed against the Police officials of the State of Gujarat and not against the Police officials of the State of Maharashtra, though they have been impleaded as parties. He further pointed out that, the Police Inspector of Vapi Police Station had already conducted an enquiry in relation to the allegation levelled against the Petitioner No. 2. The relevant entries are taken and thereafter initially the Petitioner No.2 was taken into custody for enquiry and thereafter he was taken to Vapi and arrested there. Thus, no cause of action arose at Nagpur and, therefore, this Court has no jurisdiction.
In support of his contention he placed reliance on the decision of the Delhi High Court in the case of Sayed Mohd. Masood Vs. Union of India & Anr., decided on 11.11.2013, wherein the Delhi High Court in para No. 19 observed that “Cause of action”, for the purpose of Article 226(2) of the Constitution of India, for all intent and purport, must be assigned the same meaning as envisaged under Section 20(c) of the Code of Civil Procedure. It means a bundle of facts which are required to be proved. The entire bundle of facts pleaded, however, need not constitute a cause of action as what is necessary to be proved is material facts whereupon a writ petition can be allowed.
He submitted that, the Delhi High Court has further considered that, the principle of forum conveniens also makes it obligatory on the part of the Court to see the convenience of all the parties before it. Be it the existence of a more appropriate forum, expenses, law relating to the lis, convenience of the witnesses, verification and examination of the facts for adjudication of the controversy and other similar and ancillary aspects. The Court has further held that even in a scenario where a part cause of action has arisen within one High Court's territorial jurisdiction, that High Court can still refuse to exercise jurisdiction under Article 226 on account of other considerations as defined under the concept of forum conveniens.
He further submitted that, since no significant/material/substantial part of cause of action has arisen in Nagpur as well as keeping in view the principle of forum conveniens, this Court should refuse to entertain the present petition.
On the aspect of jurisdiction, learned Counsel for the Petitioners relied upon Vachhalabai Vs. State of Maharashtra & Ors., 2019 SCC OnLine Bom 2937.
Before entering into the merits i.e. the aspect of whether the detention of the present Petitioner No. 2 was illegal or violating his fundamental right, it is necessary to see whether this Court has jurisdiction to entertain the Petition.
Article 226 of the Constitution of India reproduced herein below for ready reference.
“226. Power of High Courts to issue certain writs :-
(1)Notwithstanding anything in Article 32, 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, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(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.”
The learned Counsel for the Petitioners submitted that, the Petitioner No.2 was taken to the Police Station Ranapratap Nagar and thereafter he was taken to Vapi Police Station and thereafter he was arrested and illegally detained without any lawful cause. According to the learned Counsel for the Petitioners, a part of cause of action has therefore arisen within the territory jurisdiction of the State of Maharashtra and hence this Court has a jurisdiction to entertain the present Petition.
In the case of Navinchandra N. Majithia Vs. State of Maharashtra & Ors., MANU/SC/0549/2000 : (2000) 7 SCC 640, wherein the Hon’ble Apex Court has held by referring clause-2 of the Article 226 of the Constitution of India that the maintainability or otherwise of the writ petition in the High Court depends on whether the cause of action of filing the same arose wholly or in part within the territorial jurisdiction of that court.
In the Judgment of the case of Nawal Kishore Sharma Vs. Union of India & Ors., MANU/SC/0672/2014 : (2014) 9 SCC 329, wherein it is observed that place of cause of action wholly or in part is to be determined in the light of nature and character of the proceedings under Article 226. High Court can issue a writ if cause of action wholly or partially arises within its territorial jurisdiction even if person or authority against whom writ is issued is located outside its territorial jurisdiction. However, in order to maintain a writ petition, the petitioner has to establish that his legal right has been infringed by the respondent within the territorial limits of High Court’s Jurisdiction.
The Hon’ble Apex Court further observed in the aforesaid case in para No. 8 as follows:
“8 While interpreting the aforesaid provisions, the Constitution Bench of this Court in Election Commission v. Saka Vankata Rao, held that the writ court would not run beyond the territories subject its jurisdiction and that the person or the authority affected by the writ must be amenable to court’s jurisdiction either by residence or location within those territories. The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issued under Article 226 of the Constitution which makes no reference to any cause of action or where it arises but insist on the presence of the person or authority within the territories in relation to which the High Court exercises jurisdiction. In another Constitution Bench judgment of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission, this Court took the similar view and held that the writ court cannot exercise its power under Article 226 beyond its territorial jurisdiction. The Court was of the view that the exercise of power conferred by Article 226 was subject to a twofold limitation viz. Firstly, the power is to be exercised in relation to which it exercises jurisdiction and secondly, the person or authority on whom the High Court is empowered to issue writ must be within those territories. These two Constitution Bench judgments came for consideration before a larger Bench of seven Judges of this Court in Lt. Col. Khajoor Singh v. Union of India. The Bench approved the aforementioned two Constitution Bench judgments and opined that unless there are clear and compelling reasons, which cannot be denied, writ court cannot exercise jurisdiction under Article 226 of the Constitution beyond its territorial jurisdiction.
9.The interpretation given by this Court in the aforesaid decisions resulted in undue hardship and inconvenience to the citizens to invoke writ jurisdiction. As a result, clause (1-A) was inserted in Article 226 by the Constitution (Fifteenth) Amendment Act, 1963 and subsequently renumbered as clause (2) by the Constitution (Forty-second) Amendment Act, 1976. The amended clause (2) now read as under :
“226. Power of High Courts to issue certain writs :-
(1)Notwithstanding anything in Article 32, 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, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2)The power conferred by clause (I) 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.
(3)– (4)
On a plain reading of the amended provisions in clause (2), it is clear that now the High Court can issue a writ when the person or the authority against whom the writ is issued is located outside its territorial jurisdiction, if the cause of action wholly or partially arises within the court’s territorial jurisdiction. Cause of action for the purpose of Article 226(2) of the Constitution, for all intent and purpose must be assigned the same meaning an envisaged under Section 20(c) of the Code of Civil Procedure. The expression cause of action has not been defined either in the Code of Civil Procedure or the Constitution. Cause of action is bundle of facts which is necessary for the plaintiff to prove in the suit before he can succeed. The term “cause of action” as appearing in clause (2) came up for consideration time and again before this Court.”
The cause of action is also defined in Mulla’s Civil Procedure Code, according to which the ‘cause of action’ means every fact which, if traversed it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. This can also be said in other words that it is a bundle of facts, which taken with the law applicable to them gives the plaintiff her right to relief against the defendant. Thus the word cause of action has to be construed in the light of each case.
In the present case, the learned Counsel for the Petitioners, has placed reliance upon the decision of this Court in Vachhalabai (supra), wherein certain reliefs were granted against the Karnataka Police. In that case, the petitioner had alleged that she was illegally detained within the territorial jurisdiction of the State of Maharashtra and was thereafter taken from Parbhani to Bhalki Police Station in the State of Karnataka. It is true that this Court granted certain reliefs against the Karnataka Police in the said case. However, though the issue of maintainability on the ground of territorial jurisdiction had also been raised therein, the same was neither considered nor adjudicated upon by this Court and the order appears to have been passed without deciding that issue.
In the present case, the learned APP and learned Senior Counsel vehemently submitted that this Court has no territorial jurisdiction and has specifically contended that the present Petition is not maintainable before this Court. Therefore instead of placing reliance upon the case of Vachhalabai (supra), it would be appropriate to examine the facts of the present case in the light of the observation of the Hon’ble Apex Court in Nawal Kishore Sharma (supra) with a view for determining whether any part of the cause of action has arisen within the territorial jurisdiction of this court. For that purpose it is necessary to go through the facts of the present case.
According to the Petitioner No.2, he was forcibly taken to Vapi Police Station by the Respondent No. 9. On that basis he contends that since he was allegedly taken from Nagpur to Vapi Police Station i.e. from the territorial jurisdiction of this Court and, therefore, a part of the cause of action arose in Nagpur i.e. in the State of Maharashtra and remaining part arose in State of Gujarat and, therefore, this Court has territorial jurisdiction to entertain the present Petition.
The learned APP has however placed reliance upon the communication dated 06.09.2023 as well as 20.09.2023 issued by Respondent No. 9/Police Inspector of Vapi Police Station. The said communication indicates that, the Respondent No. 9 has intimated initially on 06.09.2023 to Ambazari Police Station that he requires to take statement of Petitioner No. 2. The entry was taken on 06.09.2023 to that extent by Ambazari Police. The subsequent entry at Ambazari Police shows that Respondent No. 9 has visited the house of the Petitioner No. 2, however he was not there and Petitioner No. 1 has declined to take the notice. The said entry was also taken in the general diary. Before visiting the house of Petitioners on 20.09.2023, again the communication was made by the Respondent No. 9 to the Ranapratap Nagar Police Station stating that he has to enquire with the Petitioner No. 2 as the crime was registered against the Petitioner No. 2 and requested to take the entry and also requested to give the copy of the General Diary entry. The said application was received by Ranapratap Nagar Police Station.
The aforesaid facts clearly indicate that, the Petitioner No.2 has misconstrued the expression “cause of action” as per his convenience against the legal provisions. Merely because the Petitioner No.2 was taken from Nagpur to Vapi Police Station i.e. from State of Maharashtra to Gujarat it cannot be held that any part of the cause of action arose within the territorial jurisdiction of this Court. The material on record reveals that the Petitioner No. 2 was taken by the Gujarat Police in connection with Crime No. 112000483233307/2023 registered for offences punishable under Section 195, 323, 341, 342, 389, 506 (2) and 120B of the Indian Penal Code. Before doing so, the Gujarat Police made the requisite entry at Ambazari Police Station as well as Ranapratap Nagar Police Station. The subsequent communication and arrest memo shows that nephew of Petitioner No.2 was informed about his arrest as well as the Petitioner No.2 was served with the grounds of arrest. Thus, the action of taking the Petitioner No.2 into custody was carried out in accordance with the prescribed legal procedure also in Vapi, Gujarat. In these circumstances, the cause of action, if any, relating to the Petitioner No.2’s alleged illegal detention, ill-treatment or torture may arise within the territorial jurisdiction of the State of Gujarat. By no stretch of imagination it can be held that, any part of such cause of action arose within the territorial jurisdiction of this Court merely because the Petitioner No.2 was taken from Nagpur after compliance with the prescribed legal procedure. Consequently, the present Petition fails on the ground of lack of territorial jurisdiction and is therefore not maintainable before this Court.
We have already held that the present Petition is not maintainable and, therefore, we have not entered into the merits of the allegation regarding the illegal detention and, therefore, we have not given any reasoning on the said issue. Moreover, it was brought to our notice that the application of the Petitioner No.2 for quashing of the FIR is pending before the Gujarat High Court. It is also apparent that, the Petitioner No.2 being fully aware that the entire cause of action took place at State of Gujarat, he filed the Petition before this Court. By recording the said conduct, the present Writ Petition deserves to be dismissed. Accordingly, we proceed to pass the following order.
O R D E R
Criminal Writ Petition is dismissed.
Rule is discharged.
Pending application/s, if any, shall stand disposed of accordingly.