Reserved

Court No. 9

Case :- APPLICATION U/S 482 No. - 7681 of 2012

Petitioner :- Paritosh Kumar

Respondent :- Union Of India Through C.B.I.Abc Lucknow And Others

Petitioner Counsel :- Rajul Bhargava

Respondent Counsel :- Anurag Khanna

With

Case :- APPLICATION U/S 482 No. - 8251 of 2012

Petitioner :- Bipin Bihari Agarwal And Another

Respondent :- Union Of India And Another

Petitioner Counsel :- V.K. Jaiswal

Respondent Counsel :- Anurag Khanna

And

Case :- APPLICATION U/S 482 No. - 7682 of 2012

Petitioner :- Paritosh Kumar

Respondent :- Union Of India Through C.B.I.Abc Lucknow And Others

Petitioner Counsel :- Rajul Bhargava

Respondent Counsel :- Anurag Khanna

And

Case :- APPLICATION U/S 482 No. - 5246 of 2012

Petitioner :- Krishna Shankar Mishra

Respondent :- Union Of India And Another

Petitioner Counsel :- Rajul Bhargava

Respondent Counsel :- Anurag Khanna.

And

Case :- APPLICATION U/S 482 No. - 7685 of 2012

Petitioner :- Paritosh Kumar

Respondent :- Union Of India Through C.B.I.Abc Lucknow And Others

Petitioner Counsel :- Rajul Bhargava

Respondent Counsel :- Anurag Khanna

And

Case :- APPLICATION U/S 482 No. - 6753 of 2012

Petitioner :- Asharfi Lal

Respondent :- Union Of India And Others

Petitioner Counsel :- Rajul Bhargava

Respondent Counsel :- Anurag Khanna

2

And

Case :- APPLICATION U/S 482 No. - 7683 of 2012

Petitioner :- Paritosh Kumar

Respondent :- Union Of India Through C.B.I.Abc Lucknow And Others

Petitioner Counsel :- Rajul Bhargava

Respondent Counsel :- Anurag Khanna

And

Case :- APPLICATION U/S 482 No. - 7684 of 2012

Petitioner :- Paritosh Kumar

Respondent :- Union Of India Through C.B.I.Abc Lucknow And Others

Petitioner Counsel :- Rajul Bhargava

Respondent Counsel :- Anurag Khanna

………….

Hon'ble Satya Poot Mehrotra, J.

Hon'ble Devendra Pratap Singh, J.

Hon’ble Bala Krishna Narayana, J.

1.Heard Sri Rajul Bhargava, learned counsel for the applicant, Sri

Anurag Khanna, learned Counsel for Central Bureau of Investigation

(respondent No. 1), learned A. G. A., appearing on behalf of the State

and Sri Yashwant Verma, erstwhile Chief Standing Counsel for the

State of U. P. and now learned Senior Counsel, assisted by Sri Raghav

Nayar,

2.The instant application under Section 482 Cr. P. C. was filed by

the applicant, Paritosh Kumar before this Court for quashing the entire

proceedings of Criminal Case No. 13 of 2011; State Versus Rajesh

Kumar Gupta and others arising out of chargesheet dated 31.10.2011

laid in RC 0062009A0005 of 2009, under Sections-420, 467, 468, 471

and 120-B IPC and Section-13 (1) r/w (i) (d) of the Prevention of

Corruption Act, 1988, P. S.-C. B. I., A. C. B., Lucknow pending in the

court of Special Judge (Anti Corruption)-Ist, Lucknow. In the six other

connected applications prayer made is either for quashing of the

3

proceedings or for clubbing the criminal proceedings under the

provisions of Section 220 Cr. P. C. The application in hand along with

the connected matters was assigned to Hon’ble R. D. Khare, J. vide

order dated 1.3.2012 passed by Hon’ble Chief Justice. It is noteworthy

that Hon’ble R. D. Khare, J. had earlier vide order dated 29.9.2011

passed in Criminal Misc. Application No. 32256 of 2011; Shiv Pratap

Singh and others Versus Superintendent of Police, C. B. I. / Acb,

Lucknow and another held that the jurisdiction of the Principal Bench of

Allahabad High Court would not be ousted on account of the police

report being filed before the Special Judge, C. B. I. Court constituted at

Lucknow in respect of the offences arising out of those districts which

were beyond the limits of territorial jurisdiction of Lucknow Bench of

this Court and it would be open to the litigants to institute their cases

either at the Principal Bench at Allahabad or the Lucknow Bench.

When the present case along with other connected matters came up

for hearing before Hon’ble R. D. Khare, J., it was brought to the notice

of His Lordship that another single Judge of this Court (Hon’ble

Jayashree Tiwari, J.) in Criminal Misc. Application under Section 482

Cr. P. C. No. 32993 of 2011; Mohd. Yasir Versus State of U. P. and

another had vide order dated 6.2.2012 taken a view different from that

expounded by Hon'ble R. D. Khare, J. in Criminal Misc. application No.

32256 of 2011; Shiv Pratap Singh and others Versus Superintendent

of Police, C. B. I. / Acb, Lucknow and another. Hon’ble R. D. Khare, J.

thereafter released the present case and the connected matters by his

order dated 14.3.2012. Hon’ble Chief Justice vide order dated

16.3.2012 nominated Hon’ble Arvind Kumar Tripathi, J. to hear this

case and the connected matters for returning his opinion on the issue

in view of he conflicting decisions of two single Judges of this Court.

3.The present reference to this Full Bench arises pursuant to an

order dated 9.7.2012 passed by Hon’ble Arvind Kumar Tripathi, J. in

4

this case doubting the correctness of the judgements rendered by two

Division Benches of this Court in Sanjay Somani Versus State of U.

P. reported in 2002-JIC-1-913 and Dr. Balram Dutt Sharma and etc.

Versus State of U. P. reported in 1999 Cr. L. J. 3396 respectively in

the light of the judgement of the Hon’ble Supreme court in Nasiruddin

Versus State Transport Appellate Tribunal reported in (1975) 2 SCC

671 and U. P. Rashtriya Chini Mill Adhikari Parishad, Lucknow

Versus State of U. P. and others reported in (1995) 4 SCC 738.

4.Hon’ble Arvind Kumar Tripathi, J. framed the following questions

in the reference order to be considered by a larger Bench:

1.The Amalgamation Order, 1948 is a special

law hence whether territorial jurisdiction of the two

Benches of the Allahabad High Court has to be

decided in view of the provision of clause 14 of the

Amalgamation Order, as interpreted, in case of

Nasiruddin, by the Apex Court or in view of the

notification of State Government with regard to the

place of sitting of Special Judge, CBI ?

2.Whether decisions of the two Division Bench

of this Court in case of Sanjay Somani and Dr.

Balram Dutt Sharma deciding the territorial

jurisdiction, by the location of the court, which has

passed the impugned order or where the

proceeding is pending, are against the object and

provision of clause 14 of the Amalgamation Order

and against the judgement of the Supreme Court in

cases of Nasiruddin and para 14 of U. P. Rashtriya

Chini Mill’s case ?

5.Sri Anurag Khanna, learned counsel for the C. B. I. raised a

preliminary objection regarding the maintainability of the reference and

submitted that the reference order itself is bad. Advancing his

submissions in this regard further, he submitted that the reason for

nominating this case and the connected matters to Hon’ble Arvind

Kumar Tripathi, J. appears to be that earlier Hon’ble R. D. Khare, J.

had in Criminal Misc. Application (U/s 482 Cr. P. C.) No. 32256 of 2011

5

held that mere filing of the chargesheet before the Special Judge, C. B.

I. Court will not oust the jurisdiction of the Principal Bench of High

Court at Allahabad where it is alleged that the offence was committed

within the territorial limits of a district falling within the jurisdiction of the

Principal Bench while another single judge in Criminal Misc. application

(U/s 482 Cr. P. C.) No. 32993 of 2011; Mohd. Yasir Versus State of U.

P. took a diagonally opposite view holding that the Principal Bench

stood stripped of its jurisdiction in a matter where challenge was to an

order passed by the C. B. I. Court at Lucknow which is subordinate to

the Lucknow Bench. When the present application came up for hearing

before Hon’ble R. D. Khare, J., His Lordship, upon noticing two

conflicting judgments on the issue, by His order dated 14.3.2013

directed this application as well as the connected matters to be placed

before Hon’ble Chief Justice for nomination to another Bench so that

the said question may be effectively decided. The matter was

accordingly nominated to Hon’ble Arvind Kumar Tripathi, J.

6.Sri Khanna further submitted that in view of the observation made

by Hon’ble Arvind Kumar Tripathi, J. in para 33 of the reference order

that the opinion of Hon’ble R. D. Khare, J. appears to be sound, it can

safely be inferred that Hon’ble Arvind Kumar Tripathi, J. while deciding

the reference had held the view taken by Hon’ble R. D. Khare, J. to be

correct and hence there was no necessity for Hon’ble Arvind Kumar

Tripathi, J. to have referred the questions for consideration by a larger

Bench as virtually nothing remains to be decided by His Lordship after

the Full Bench answeres the reference. He further submitted that Rule

6 of Chapter V of the Allahabad High Court Rules confers power on the

Hon’ble Chief Justice to constitute a Bench of two or more Judges for

deciding any question of law. It further provides that decision of such

Bench on the questions so formulated shall be returned to the Bench

hearing the case and that Bench shall follow the decision of the larger

6

Bench on such question and since Hon’ble Arvind Kumar Tripathi, J.

has already affirmed the opinion of Hon’ble R. D. Khare, J., and if, after

the Full Bench decides the reference taking a different view and returns

the matter back to Hon’ble Arvind Kumar Tripathi, J., His Lordship will

have to review his order dated 9.7.2012, which is not permissible under

the criminal jurisprudence of our country.

7.Sri Khanna also submitted that the reference is not maintainable

also in view of the legal principle propounded by the Hon’ble Supreme

Court in the case of Central Board of Dawoodi Bohra Community

Versus State of Maharashtra reported in 2005 (2) SCC 673 that the

law laid down by the Supreme Court in a decision delivered by a Bench

of larger strength is binding on any subsequent Bench of lesser or co-

equal strength and a bench of lesser quorum cannot disagree or

dissent from the view of law taken by a Bench of larger quorum. In

case of doubt all that the Bench of lesser quorum can do is to invite the

attention of the Chief Justice and request for the matter being placed

for hearing before a Bench of larger quorum than the Bench whose

decision has come up for consideration and it will be open for a Bench

of coequal strength to express an opinion doubting the correctness of

the view taken by the earlier Bench of coequal strength.

8.Advancing his submissions further, Sri Khanna submitted that

Hon’ble Arvind Kumar Tripathi while observing in para 28 of the

reference order that the conclusions of the two Division Benches in the

case of Sanjay Somani and Dr. Balram Dutt Sharma (supra) are not

only against the provisions and objects of Clause 14 of the

Amalgamation Order but also appear to be in conflict with construction

of the aforesaid clause by the Hon’ble Supreme Court in case of

Nasiruddin (supra) has clearly gone on to disagree or dissent from the

Division Bench which was beyond His Lordship's jurisdiction.

9.Sri Khanna also submitted that the questions framed by Hon’ble

7

Single Judge do not call for any adjudication by the Full Bench in view

of the fact that there are two Division Benches which have already

decided the same issues earlier and the correctness of law laid down

by those Division Benches, i. e. Dr. Balram Dutt Sharma and Sanjay

Somani (supra) has not been doubted by any Bench of co-ordinate

strength and the same still holds to be good law. The ratio of the larger

Bench of the High Court is clearly binding on the single judge as held

by the Constitutional Bench of this Court in the case of Rana Pratap

Singh Versus State of U. P. and others reported in 1996 (Suppl.)

AWC page 92.

10.Per contra, Sri Yashwant Varma who had earlier appeared before

this Full Bench in his capacity as the Chief Standing Counsel of the

State of U. P. and later as designated Senior Advocate, upon being

called to address the Full Bench, made his submissions in support of

the reference order and very candidly submitted that the view taken by

two Division Benches of this Court in Dr. Balram Dutt Sharma and

Sanjay Somani (supra) requires reconsideration not only in view of the

questions framed by Hon’ble Single Judge in the reference order but

also for the reason that an earlier Division Bench judgement of this

Court namely Baldeo Ram and another Versus Deputy

Commissioner, Gonda and another reported in AIR 1959 (Alld.) 460

(DB) taking a contrary view had escaped the attention of the two

Division Benches which had decided the cases of Sanjay Somani and

Dr. Balram Dutt Sharma (supra) and hence Sanjay Somani and Dr.

Balram Dutt Sharma (supra) cannot be said to be binding precedents

laying down correct law on the issue. Hence, the preliminary objection

raised by Sri Khanna is without any substance and is liable to be

rejected summarily. In support of his aforesaid submissions, Sri

Yashwant Varma has placed reliance on the judement of the Apex

Court rendered in State of Bihar Versus Kalika Kuer alias Kalika

8

Singh and others reported in (2003) 5 SCC 448.

11.Sri Rajul Bhargava, learned counsel for the applicant also

adopted the submissions made by Sri Yashwant Varama, Senior

Advocate on the question of maintainability of the reference.

12.Before proceeding to examine the matter on merits, we consider

it apt to first deal with the preliminary objection raised by Sri Anurag

Khanna.

13.The main thrust of Sri Khanna's submissions against the

maintainability of the reference appears to be founded upon the settled

legal position propounded by the Hon’ble Supreme Court in Central

Board of Dawoodi Bohra Community as well as Constitutional Bench

judgement of this Court in the case of Rana Pratap Singh (supra) that

the Bench of lesser quorum cannot disagree or dissent from the view

of law taken by a bench of larger quorum. It would be relevant to quote

paras 5 and 10 of the judgement rendered in Central Board of

Dawoodi Bohra Community Versus State of Maharashtra reported

in 2005 (2) SCC 673.

“5. In Bharat Petroleum Corporation Ltd's case

(supra) the Constitution Bench has ruled that a

decision of a Constitution Bench of this Court binds

a Bench of two learned Judges of this Court and

that judicial discipline obliges them to follow it,

regardless of their doubts about its correctness. At

the most, they could have ordered that the matter

be heard by a Bench of three learned Judges.

Following this view of the law what has been

declared by this Court in Pradip Chandra Parija &

Ors.'s case (supra) clinches the issue. The facts in

the case were that a Bench of two learned Judges

expressed dissent with another judgment of three

learned Judges and directed the matter to be

placed before a larger Bench of five Judges. The

Constitution Bench considered the rule of 'judicial

discipline and propriety' as also the theory of

precedents and held that it is only a Bench of the

same quorum which can question the correctness

9

of the decision by another Bench of the co-ordinate

strength in which case the matter may be placed

for consideration by a Bench of larger quorum. In

other words, a Bench of lesser quorum cannot

express disagreement with, or question the

correctness of, the view taken by a Bench of larger

quorum. A view of the law taken by a Bench of

three judges is binding on a Bench of two judges

and in case the Bench of two judges feels not

inclined to follow the earlier three-Judge Bench

decision then it is not proper for it to express such

disagreement; it can only request the Chief Justice

for the matter being placed for hearing before a

three-Judge Bench which may agree or disagree

with the view of the law taken earlier by the three-

Judge Bench. As already noted this view has been

followed and reiterated by at least three

subsequent Constitution Benches referred to

hereinabove.

10. Reference was also made to the doctrine of

stare decisis. His Lordship observed by referring to

Sher Singh Vs. State of Punjab, (1983) 2 SCC 344,

that although the Court sits in Divisions of two and

three Judges for the sake of convenience but it

would be inappropriate if a Division Bench of two

Judges starts overruling the decisions of Division

Benches of three. To do so would be detrimental

not only to the rule of discipline and the doctrine of

binding precedents but it will also lead to

inconsistency in decisions on points of law;

consistency and certainty in the development of

law and its contemporary status both would be

immediate casualty.”

14.Another decision on which Sri Khanna has placed reliance in

support of his submission is Rana Pratap Singh (supra) Para 20 of

the Full Bench decision, which is relevant for the purpose reads as

under:

“20. Seen in the light of what has been discussed it

must inevitably follow that the ratio of the two full

10

Bench decisions, namely, C. P. Sahu, 1984 AWC

145 and Kailash Nath's cases, 1985 AWC 493

(supra), was clearly binding upon the learned

single Judge and it was thus incumbent upon him

to follow it. No occasion for its reconsideration

arose. Having arrived at this conclusion, we have

no option but to send the matter back to the

learned single Judge for decision on merits in

accordance with law.”

15.If we examine the preliminary objection raised by Sri Khanna in

the light of the law laid down in the cases of Central Board of

Dawoodi Bohra Community and Rana Pratap Singh (supra), the

same at the first glance appears to be well founded and attractive. It is

true that in the order of reference there is no mention of the earlier

Division Bench of this Court in Dr. Baldeoram (supra) which had

apparently taken a view entirely different from that propounded by the

later division Benches in the case of Sanjay Somani and Dr. Balram

Dutt Sharma (supra). The correctness of the law laid down by these

two Division Benches has not been questioned by any bench of

coordinate strength of this Court, yet since now it has been brought to

our notice that an earlier Division Bench of this Court in Baldeo Ram

(supra) which had taken a view contrary to that expounded by the two

subsequent Division Benches in Dr. Balram Dutt Sharma and Sanjay

Somani (supra) had escaped the notice of the aforesaid subsequent

Division Benches, the same cannot be said to be binding precedents

on the issue decided by those Division Benches.

16.The Division Bench of this Court in the case of Baldeo Ram

(supra) had while considering the question whether the Lucknow

Bench of Allahabad High Court will have the jurisdiction to entertain a

petition filed by subsequent allottees against an order passed by the

Excise Commissioner, U. P. at Allahabad in the appeal preferred by the

original allottees of liquor shops at Gonda against cancellation of their

11

shops by the District Magistrate, Gonda held that the words ‘cases

arising’ in Clause 14 of the Amalgamation Order 1948 would refer to

mean from where the case springs up or originates.

17.Similarly, a learned single judge of this Court in the case of Prem

Singh (supra) while considering an appeal which stemmed from an

order of conviction made by Special Judge, Anti Corruption, Lucknow

arising out of a case in which offence was committed at Varanasi and

the issue which arose was whether the appeal at Allahabad would be

maintainable, the learned Single Judge after considering the provisions

of Amalgamation Order, 1948 held that Clause 14 laid emphasis on the

area where the occurrence had taken place as decisive for deciding

the jurisdiction. Relying upon two judgements of this Court including

Baldeo Ram (supra) the learned Single Judge was pleased to hold the

appeal to be maintainable at Allahabad.

18.From the perusal of the judgements of Sanjay Somani and Dr.

Balram Dutt Sharma it is apparent that none of the aforementioned

judgements were considered by the said division benches and the

same cannot be said to be binding precedents in view of the law laid

down by the Apex Court in State of Bihar (supra). Para 6 of the

judgement which is relevant for our purpose is reproduced below:

“6.In a decision of this Court reported in 2000 (4)

S.C.C. 262 Govt. of Andhra Pradesh and Anr. Vs B.

Satyanarayana Rao (Dead) by Lrs., it has been

held as follows:

"Rule of Per Incuriam can be applied where a Court

omits to consider a binding precedent of the same

court or the superior court rendered on the same

issue or where a court omits to consider any statute

while deciding that issue. We therefore find that the

rule of per incuriam cannot be invoked in the

present case. Moreover a case cannot be referred

to a larger Bench on mere asking of a party. A

decision by two judges, unless it is demonstrated

that the said decision by any subsequent change in

12

law or decision ceases to laying down a correct

law"

19.The second count on which reference order has been assailed by

Sri Khanna is also without any substance in view of the fact that the

observation made by Hon'ble Arvind Kumar Tripathi, J. in the reference

order that the conclusion of Hon'ble R. D. Khare, J. appeared to His

Lordship to be correct is merely tentative and not conclusive. We do

not find any force in the preliminary objection raised by Sri Khanna

regarding the reference being bad in law and the same is rejected.

20.The questions referred arise out of the following facts. The State

Government in exercise of power conferred by Section 178 of Code of

Criminal Procedure (V of 1989) issued a notification on 5.10.1951

directing that all Special Police Establishment cases committed to the

court of session in any district in U.P. shall be tried in Lucknow

sessions division. Exercising power under Section 193(2) of the same

Code, it was further directed that the Sessions Judge, Lucknow, as

Additional Sessions Judge of other sessions division in U.P. shall try

such cases. Subsequently, another notification was issued whereunder

more courts of Special Judges were created for trial of cases wherein

charge-sheets had been submitted by the Special Police Establishment

(CBI) under the Delhi Special Police Establishment Act, 1946. In the

exercise of powers conferred by Sections 3 and 4 of the Prevention of

Corruption Act, 1988 (hereinafter referred to as the ' PC Act') the State

Government in consultation with the High Court was pleased to

constitute the courts of Special Judge at Lucknow and Ghaziabad for

trial of all the cases under the Act in which the investigation was

undertaken and completed by the Central Bureau of Investigation.

These Special Judges posted at Lucknow / Ghaziabad deal with the

cases arising out of various districts in the State of U. P. some of which

are subject to the jurisdiction of the Lucknow Bench while some are

13

subject to the jurisdiction of Principal Bench at Allahabad in terms of

the provisions of United Provinces High Court (Amalgamation) Order,

1948 (hereinafter referred to as 'the Amalgamation Order'). Accordingly,

the offence committed in a district which may otherwise be within the

jurisdiction of the Principal Bench may be committed for trial to the

Special Judge either at Lucknow or at Ghaziabad depending upon the

allocation of the districts between the aforesaid two courts as per the

notifications issued by the State Government under Sections 3 and 4 of

the P. C. Act. (Act. No. 49 of 1988)

21.It is also necessary in our opinion, to set out the historical

background against which, the question must be considered which has

been given in detail in in U. P. Rashtriya Chini Mill Adhikari Parishad

and others Versus State of U. P. and others, 1994 (12) Lucknow Civil

Decision 1026, and it will be useful to reproduce paragraphs 8 to 17 of

the Report:

“8. Our Temple of Justice was consecrated in 1866

under a Royal Charter issued by the Queen

Victoria, the British Sovereign, with the

nomenclature High Court of Judicature for the

North Western Provinces at Agra under Letters

Patent of the 17

th

March, 1866. The day was 18

th

June, 1866, marking the birth of our court. On that

historic day six Judges-the entire complement of

the court, quietly walked in, took their seats and

began the day’s work as if totally oblivious of the

great transition from the Suddar Diwanny Adawalat

and Sardar Nazamat Adawalat to a High Court.

The Indian High Courts Act, 1861, enacted by the

British Parliament, gave to the Crown the authority

to establish High Courts at Calcutta, Madras,

14

Bombay and at one other place. In the year 1868,

High Court was shifted from Agra to Allahabad and

later came to be known as High Court of

Judicature at Allahabad.

9. In 1834, the Upper Provinces were separated

from the Bengal Presidency to be governed by the

newly constituted Agra Presidency with its

Headquarters at Allahabad Fort, but in 1836 the

Presidency was superseded by a Lt. Governorship

of the North-Western Provinces with Headquarters

at Agra. In 1858 the Headquarters of the

Government were again shifted to Allahabad.

10. Avadh, after its annexation in 1856, had been

placed under a Chief Commissioner but in 1877 it

also came under the jurisdiction of the Lt.

Governor and the whole territory was named as

‘North-Western Provinces and Avadh’. This area

was named as ‘United Provinces of Agra and

Avadh in 1902. In 1921, after the implementation of

India Constitutional Reforms, the area came under

the jurisdiction of a Governor. A Legislative Council

was formed at Lucknow in 1921 after the elections

of 1920 and the seat of the Government was

shifted from Allahabad to Lucknow in the same

year. The shifting of the Secretariat from Allahabad

to Lucknow was complete by 1935 making

Lucknow the capital of the State. The province was

named ‘United Provinces’ in 1937 and

subsequently from 26

th

January, 1950, its name

has been changed to ‘UTTAR PRADESH’ (See, A

15

guide to the Records in the U. P. State Archives,

page 6 and 7).

11. In 1834, Allahabad was made the seat of

Government of the North-Western Province.

12. In February, 1858, Lord Canning announced

the formation of the whole of the North-Western

Provinces retransferring the seat of Government

from Agra to Allahabad, however, the retransfer of

the High Court followed in the year 1868. (See, the

Journal of the Allahabad Historical Society,

Allahabad, July, 1962, Annual number, Vol. I, page

56.)

13. Beginning with the formation of Legislative

Council at Lucknow in the year 1921, subsequently

most of the important Government Offices,

including the secretariat and the legislative wings,

were transferred to Lucknow.

(See, Gazetteer of India, U. P.)

14. On 7

th

February, 1858, Oudh comprising 12

Districts namely: Lucknow, Faizabad, Sultanpur,

Rae Bareilly, Pratapgarh, Barabanki, Gonda,

Bahraich, Sitapur, Kheri, Hardoi, Unnao, was

annexed to the British Empire, Annexation of 1856,

brought the British system of administration of

justice with some flexibility and the highest Court of

appeal, the Judicial Commissioner’s Court was

established at Lucknow under the Government of

India Order dated February 4, 1856.

15. By the Oudh Civil Courts Act, 1879, the Judicial

Commissioner was constituted the head of the

16

judiciary. In the year 1901, United Provinces of

Agra and Oudh was created. The judicial

administration in the two regions of the provinces,

however, continued to remain separate.

Subsequently the Oudh Civil Courts Act, 1879 was

replaced by the Oudh Courts Act, 1925 and the

Court of Judicial Commissioner was replaced by

the Oudh Chief Court with jurisdiction extending

over the same area.

(See, Chapter I, Clause 1 (2) of Oudh Courts Act,

1925)

16. The two judicial administrations wielded

jurisdiction over the two separate regions of the

United Provinces for many years. Though the

capital of the United Provinces continued at

Lucknow since the year 1921 yet the Chief Court in

Oudh used to exercise its jurisdiction only in

respect of Oudh area.

17. Ultimately both Chambers of the Legislature of

the United Provinces presented addresses to the

Governor to amalgamate the High Court of

Judicature at Allahabad and the Chief Court in

Oudh and the said addresses were submitted to

the Governor General, who in exercise of the

powers conferred by Section 229 of the

Government of India Act, 1935, and all other

powers enabling him in that behalf promulgated

the Amalgamation Order, 1948 whereby the High

Court in Allahabad and the Chief Court in Oudh

have been amalgamated and since then they

17

constitute one High Court by the name of the High

Court of Judicature at Allahabad.”

22.Having broadly examined the historical aspect of the matter we

now proceed to consider the questions referred to us. The territory over

which High Court can exercise its jurisdiction is governed exclusively

by the Constitution of India or its Charter. In terms of the Article 225 of

the Constitution of India the territorial jurisdiction of High Court would

be regulated in accordance with either the provisions of the

Constitution or the provisions of any law of the appropriate legislature

as was in force before the commencement of the Constitution of India.

The conjoint reading of Article 225 of the Constitution of India which

finds place in Chapter V of the Constitution of India with Article 240,

clearly shows that each State of Union of India would have a High

Court. Amalgamation Order, 1948 was the law of appropriate

legislature in force at the time of commencement of the Constitution.

Hence the extent of the territorial jurisdiction of the Principal Bench and

the Lucknow Bench has to be ascertained with reference to the

language of the Amalgamation Order.

23.The expression in respect of cases arising in such areas in Oudh

appearing in Clause 14 of the Amalgamation Order, 1948 was first

considered and examined by a Division Bench of this Court in Baldeo

Ram (supra). The Division Bench held that the words “cases arising in

such areas of Oudh” would refer to mean from where the case springs

up or originates. Para 9 of the judgement which is relevant for our

purpose is being reproduced below:

“9. Whether the Luckuow Bench could exercise

jurisdiction and make an order in respect of the

present petition or not was, in our opinion,

dependent upon the meaning of the words

"exercise in respect of cases arising in such areas

18

in Oudh". The word 'case' is not co-extensive in

meaning with the words "suit", "appeal' or

'proceeding'. The word 'case' may have a wider

connotation than either a 'suit,' an 'appeal' or a

"proceeding,' or it may have a narrower

connotation than these three, for the connotation

of the word 'case' would depend, in any particular

cause on the particular circumstances of that

cause and no general rule of definition can, in our

opinion, be laid down by which one could test

whether a particular matter was a 'case' or not. But

on the scope and meaning of the word "case" does

not depend the answer to the problem facing us,

for the word of real significance was the word

'arising', and on the true interpretation of this word

depended, in our view, the key to the answer. The

word 'arise', among other meanings, has the

meaning "to spring up; to spring forth from its

source; to take its rise, originate". The word

'arising" has no special or technical meaning

attached to it in forensic language". Therefore, it

has to be interpreted in accordance with its

common dictionary meaning and we have quoted

the dictionary meaning as given in the Shorter

Oxford English Dictionary, Vol. 1. If we accept that

meaning, as we have to, then the phrase 'cases

arising' must relate to the origin of a case, that is,

these words must refer to the place or area of

origin of the dispute.”

24.The aforesaid expression appearing in Clause 14 of the

Amalgamation Order was next authoritatively decided by the Full

Bench of this Court in the case of Uma Shankar Versus State

reported in AIR 1971 Alld. 96 (FB). The Full Bench in Uma Shankar

(supra) while interpreting the expression “cases arising in such areas

in Oudh” held that the question as to where a case arises, that is in

Oudh or outside it would have to be determined on the basis of the

stage of the case when the jurisdiction of the High Court is sought to

be invoked for deciding as to where the case arises, not the place

where the controversy originally originated would be material, but the

19

place where the proceedings would culminate for invoking the

jurisdiction of the High Court would be relevant. The Full Bench thus

propounded the principle of the location of the last court which had

passed the order sought to be assailed before the High Court as the

basis for determining the question of jurisdiction of the Lucknow Bench

or the principal Bench at Allahabad.

25.However, the said ratio was reconsidered by another Full Bench

of this Court in the case of Nirmal Das Khaturia and others Versus

The State Transport Appellate Tribunal, U. P., Lucknow and others

reported in AIR 1972 Allahabad 200 (V 59 C 55) in the light of the

four questions referred for the opinion of the Full Bench which are as

follows:

"1. Can a case falling within the jurisdiction of the

Lucknow Bench of this Court be presented at

Allahabad?

2. Can the Judges sitting at Allahabad summarily

dismiss a case, presented at Allahabad, pertaining

to the jurisdiction of the Lucknow Bench?

3. Can a case pertaining to the jurisdiction of the

Lucknow Bench, presented and entertained at

Allahabad, be decided finally by the judges sitting

at Allahabad, without there being an order as

contemplated by the second proviso to Article 14 of

the U. P. High Courts (Amalgamation) Order,

1948?

4. What is the meaning of the expression "in

respect of cases arising in such areas in Oudh"

used in the first proviso to Article 14 of the High

Courts (Amalgamation) Order, 1948? Has this

expression reference to the place where the case

originated or to the place of sitting of the last court

or authority whose decree or order is being

challenged in the proceeding before the High

Court?"

20

26.The four questions referred to the Full Bench in Nirmal Dass

Khaturia (supra) were answered in para 96 of the judgement which is

quoted hereinbelow:

96. We answer the questions referred as follows:--

Question No. 1:-- A case falling within the

jurisdiction of the judges at Lucknow should be

presented at Lucknow and not at Allahabad.

Question No. 2:-- However, if such a case is

presented at Allahabad the judges at Allahabad

cannot summarily dismiss it only for that reason.

The case should be returned for filing before the

judges at Lucknow, and where the case has been

mistakenly or inadvertently entertained at

Allahabad a direction should be made to the High

Court office to transmit the papers of the case to

Lucknow.

Question No. 3:-- A case pertaining to, the

jurisdiction of the judges at Lucknow and

presented before the judges at Allahabad cannot

be decided by the judges at Allahabad in the

absence of an order contemplated by the second

proviso to Article 14 of the U. P. High Courts

(Amalgamation) Order, 1948.

Question No. 4:--- The expression "in respect of

cases arising in such areas in Oudh" used in the

first proviso to Article 14 of the High Courts

(Amalgamation), Order, 1948 refers to legal

proceedings, including civil cases, criminal cases,

petitions under Articles 226, 227 and 228 of the

Constitution and petitions under Articles 132, 133

and 134 of the Constitution instituted before the

judges sitting at Lucknow and having their origin, in

the sense explained in the majority judgment, in

such areas in Oudh as the Chief Justice may

direct. The expression "arising in such areas in

Oudh" refers to the place where the case

originated in the sense explained in the majority

judgment and not to the place of sitting of the last

21

court or authority whose decree or order is being

challenged in the proceeding before the High

Court.

Question No. 5:-- Writ Petition No. 5833 of 1971

cannot be entertained, heard and decided by the

judges sitting at Lucknow.”

27.The Full Bench of Nirmal Dass (supra) overruled the view taken

by the Full Bench of this Court in Uma Shankar (supra) and held that

the meaning of the expression in respect of “cases arising in such

areas of Oudh” in the first proviso to Clause 14 of the Amalgamation

Order with regard to the application under Article 226 of the

Constitution of India, will be a case arising within the areas in Oudh

only if the right of the petitioner in such an application arose first at a

place within an area in Oudh and if the subsequent orders either at the

revisional or appellate stage were passed by an authority within an

area in Oudh but the right of the involving the writ jurisdiction arose first

in an area outside Oudh, then in such cases Lucknow Bench would not

have any jurisdiction. As far as the place or origin of a criminal case is

concerned, the Full Bench ruled in para 59 that a criminal case arises

where the offence has been committed. In para 53 of the of the same

judgement, Full Bench relying upon Bhimappa Versus Laxman

reported in AIR 1970 SC 1153 held that “under the criminal law, a case

ordinarily means a proceeding for the prosecution of a person accusd

of having committed an offence.”

28.The Full Bench decision of this Court in the case of Nirmal Das

Khaturia and others (supra) was assailed before the Apex Court in Civil

Appeal Nos. 1940-41 of 1972; Nasiruddin Versus State of Transport

Appellate Tribunal and Criminal Appeal No. 254 of 1974; Rama Versus

State of Uttar Pradesh.

29.Civil Appeal No. 1940 of 1972 arose out of the Writ Petition No.

3294 of 1970. Writ Petition No. 3294 of 1970 was filed before the

22

Lucnow Bench of the High Court by respondents Nos. 3 to 9 for

quashing the order dated 12 May, 1970 passed by the State Transport

Appellate Tribunal at Lucknow. The respondents also claimed the

direction that the judgment of the High Court sitting at Lucknow dated

15 September, 1966 in Writ Petition No. 750 of 1964 is a nullity.

30.In Civil Appeal No. 1941 of 1972 the appellants filed writ petition

No. 470 of 1971 in the High Court at Lucknow for a writ of certiorari for

quashing order dated 11 December, 1970 passed by the Deputy

Director of Consolidation, Shahjahanpur, with headquarters at

Lucknow. The appellants filed objections under section 9 of the

Consolidation of Holdings Act, 1954. Their objections were allowed by

the Consolidation officer. On appeal the order was upheld by the

Settlement Officer, Consolidation, Shahjahanpur. The respondent No. 1

went up in revision and the Deputy Director, Consolidation, on 11

December, 1970, set aside the order. It is this order which forms

subject-matter of writ petition No. 4170 of 1971. On 26 July, 1971 the

writ petition was listed for orders before a Division Bench consisting of

the Chief Justice of the High Court and another learned Judge sitting at

Lucknow. The Registry of the High Court at Lucknow reported that the

petition related to the District of Shahjahanpur and question was raised

as to the competency of the writ petition being presented before the

Bench sitting at Lucknow. The matter eventually came before the Full

Bench.

31.Criminal Appeal No. 254 of 1974 arose out of the Criminal

Revision No. 270 of 1973 filed in the Principal Bench of the High Court

at Allahabad. The revision related to the sentence under section 25 of

the Arms Act passed by the Temporary Civil & Sessions Judge, Rae

Bareli. Question arose as to whether the revision should have been

filed before the Lucknow Bench. Eventually the matter came before the

Full Bench.

23

32.The Four Judge Bench of the Apex Court in Nasiruddin's case

after noting the four questions which were referred to the Full Bench in

Nirmal Dass Khaturia (supra), the answers returned by the majority

view on the said questions, in paras 35, 36, 37, 38, 39 and 40 of its

judgement held as hereunder:

“35. The meaning of the expression "in respect of

cases arising in such areas in Oudh" in the first

proviso to paragraph 14 of the order was answered

by the High Court that with regard to applications

under Article 226 the same will be "a case arising

within the areas in Oudh, only if the right of the

petitioner in such an application arose first at a

place within an area in Oudh. The implication

according to the High Court is that if the right of the

petitioner arose first at any place outside any area

in Oudh and if the subsequent orders either in the

revisional or appellate stage were passed by an

authority within an area in Oudh then in such cases

the Lucknow Bench would not have any

jurisdiction. The factor which weighed heavily with

the High Court is that in most cases where an

appeal or revision would lie to the State

Government, the impugned order would be made

at Lucknow and on that view practically all writ

petitions would arise at Lucknow.

36. The conclusion as well as the reasoning of the

High Court is incorrect. It is unsound because the

expression "cause of action" in an application

under Article 226 would be as the expression is

understood and if the cause of action arose

because of the appellate order or the revisional

order which came to be passed at Lucknow then

Lucknow would have jurisdiction though the

original order was passed at a place outside the

areas in Oudh. It may be that the original order

was in favour of the person applying for a writ. In

such case an adverse appellate order might be the

cause of action. The expression "cause of action is

well-known. If the cause of action arises wholly or

in part at a place within the specified Oudh areas,

the Lucknow Bench will have jurisdiction. If the

24

cause of action arises wholly within the specified

Oudh areas, it is indisputable that the Lucknow

Bench would have exclusive jurisdiction in such a

matter. If the cause of action arises in part within

the specified areas in Oudh it would be open to the

litigant who is the dominus litis to have his forum

conveniens. The litigant has the right to go to a

Court where part of his cause of action arises. In

such cases, it is incorrect to say that the litigant

chooses any particular Court. The choice is by

reason of the jurisdiction of the Court being

attracted by part of cause of action arising within

the jurisdiction of the Court. Similarly, if the cause

of action can be said to have arisen part within

specified areas in Oudh and part outside the

specified Oudh areas, the litigant will have the

choice to institute proceedings either at Allahabad

or Lucknow. The Court will find out in each case

whether the jurisdiction of the Court rightly

attracted by the alleged cause of action.

37. To sum up. Our conclusions are as follows.

First there is no permanent seat of the High Court

at Allahabad. The seats at Allahabad and at

Lucknow may be changed in accordance with the

provisions of the order. Second, the Chief Justice

of the High Court has no power to increase or

decrease the areas in Oudh from time to time. The

areas in Oudh have been determined once by the

Chief Justice and, therefore, there is no scope for

changing the areas. Third. the Chief Justice has

power under the second proviso to paragraph 14 of

the order to direct in his discretion that any case or

class of cases arising in Oudh areas shall be heard

at Allahabad. Any case or class of cases are those

which are instituted at Lucknow. The interpretation

given by the High Court that the word "heard"

confers powers on the Chief Justice to order that

any case or class of cases arising in Oudh areas

shall be instituted or filed at Allahabad, instead of

Lucknow is wrong. The word "heard" means that

cases which have already been instituted or filed at

Lucknow may in the discretion of the Chief Justice

under the second proviso to paragraph 14 of the

order he directed to be heard at Allahabad. Fourth,

25

the expression "cause of action" with regard to a

civil matter means that it should be left to the

litigant to institute cases at Lucknow Bench or at

Allahabad Bench according to the cause of action

arising wholly or in part within either of the areas. If

the cause of action arises wholly within Oudh

areas then the Lucknow Bench will have

jurisdiction. Similarly, if the cause of action arises

wholly outside the specified areas in Oudh then

Allahabad will have jurisdiction. If the cause of

action in part arises in the specified Oudh areas

and part of the cause of action arises outside the

specified areas, it will be open to the litigant to

frame the case appropriately to attract the

jurisdiction either at Lucknow or at Allahabad. Fifth,

a criminal case arises where the offence has been

committed or otherwise as provided in the Criminal

Procedure Code. That will attract the jurisdiction of

the Court at Allahabad or Lucknow. In some cases

depending on the facts and the provision regarding

jurisdiction, it may arise in either place.

38. Applications under Article 226 will similarly lie

either at Lucknow or at Allahabad as the applicant

will allege that the whole of cause of action or part

of the cause of action arose at Lucknow within the

specified areas of Oudh or part of the cause of

action arose at a place outside the specified Oudh

areas.

39. The answers given by the High Court to the

first three questions are correct save as modified

by our conclusions aforesaid.

40. The answer given by the High Court to the

fourth question is set aside. The meaning of cases

arising in Oudh areas will be found out by

appropriate courts in the light of this judgment.”

33.Thus, the Apex Court in the case of Nasiruddin (supra) affirmed

the answers given by the High Court in Nirmal Dass Khaturia (supra) to

the first three questions referred to the Full Bench of this Court with

certain modifications. However, the answer given by the High Court to

26

the fourth question opining that the expression in respect of “cases

arising in such areas of Oudh” used in first proviso to Clause 14 of the

Amalgamation Order, 1948 means the place where the right of the

petitioner in a writ application first arose and not to the place of last

sitting of the court or the authority whose decree or order is challenged

in the proceedings before the High Court was set aside and it was held

that the meaning of the expression in respect of “cases arising in such

areas in Oudh” in the first proviso to Clause 14 of the Amalgamation

Order, 1948 is to be found by the appropriate Courts in the light of the

judgement in Nasiruddin's case. The constitution Bench further held

that a criminal case arises where offence has been committed or

otherwise provided in the Criminal Procedure Code that will attract the

jurisdiction of the Allahabad High Court at Lucknow Bench. In some

cases depending on the facts, it may arise in either place. Thus, the

import of the words “the place where the case arises” as explained by

the Full Bench that a criminal case arises, where the offence is

committed” was affirmed by the Apex Court in Nasiruddin's case.

34.The Apex Court while interpreting Clause 14 of the Amalgamation

Order, 1948 in U. P. Rashtriya Chini Mill Adhikari Parishad (supra) has

in para 14 which reads as hereunder reiterated the law laid down by a

Four Judge Bench of the Apex Court in Nasiruddin's case:

“14. …..... The territorial jurisdiction of a Court

and the “cause of action” are interlinked. To decide

the question of territorial jurisdiction it is necessary

to find out the place where the “cause of action”

arose. We, with respect, reiterate that the law laid

down by a Four Judge Bench of this Court in

Nasiruddin's case (AIR 1976 SC 331) holds good

even today despite the incorporation of an

Explanation to Section 141 to the Code of Civil

Procedure.”

35.It will be further interesting to note that an expression similar to

that in the Amalgamation Order existing in the High Court of Rajasthan

27

(Establishment of Permanent Bench of Jaipur), 1976 came up for

consideration before the Supreme Court in Rajasthan High Court

Advocates' Association Versus Union of India and others reported in

(2001) 2 SCC 294 in which the Supreme Court approved and

reiterated the law laid down in Nasiruddin and U. P. Rashtriya Chini Mill

Adhikari Parishad (supra). In para 18 of the aforesaid judgement it has

been observed hereunder:

“18. 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 ex-

clusive 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 accord-

ingly unless the Chief Justice may exercise in his

discretion the power vested in him by the proviso to

para 2 of the Presidential order. Clauses (1) and

(2) of Article 226 of the Constitution provide how

territorial jurisdiction shall be exercised by any High

Court. Although the said clauses do not deal with

principal seat or permanent bench of any High

Court but in our opinion, there is no reason why the

principle underlying thereunder cannot be applied

to the functioning of the bifurcated territorial juris-

diction between the principal seat and permanent

bench seat of any High Court. In case of a dispute

arising whether an individual case or cases should

be filed and heard at Jodhpur or Jaipur, the same

has to be found out by applying the test __ from

28

which district the case arises, that is, in which dis-

trict the cause of action can be said to have arisen

and then exercising the jurisdiction under Article

226 of the Constitution.”

36.However, the Division Bench of this Court in Dr. Balram Dutt

Sharma (supra) while considering the issue whether the bail

application emanating from a criminal case registered in pursuance of

the chargesheet laid by the C. B. I. at Lucknow is maintainable before

the Principal Bench or not and another Division Bench in the case of

Sanjay Somani while considering the issue whether challenge to

orders passed by Special Judge, C. B. I. Court at Lucknow can be

entertained by the Principal seat at Allahabad or Lucknow Bench of

Allahabad High Court held that it is the location of the Court which is

determinative of the fact whether the challenge to the order passed by

it can be entertained by the Principal Bench of Allahabad or Lucknow

Bench of Allahabad High Court. Para 10 of Dr. Balram Dutt Sharma

(supra) which ingrains the reasons for the conclusion of the Division

Bench reads as hereunder:

“10. It appears that the High Court could

grant bail to a person who is accused of an offence

and is in custody. Thus, the cause of action for bail

might be differentiated from a cause of action for

writ petition and cause of action for a bail may not

arise on the lodging of an FIR unless a particular

person is arrested or detained in custody. The

materials on record indicated that although FIRs

are there in different districts touching the present

applicants, the basic or the parent FIR is the one

lodged by the CBI upon which only the

investigation was taken up and there is nothing on

record to show that investigation was made

separately in the different FIRs in the districts.

They were detained admittedly in relation to the

CBI FIR as is clear from the averments made in

each individual bail applications. Thus, the cause

of action for every applicant would be or is when

29

he was detained in connection with the

investigation/charge-sheet in the CBI FIR that was

lodged at Lucknow. Seen in this light, the cause of

action is only within the jurisdiction of the Lucknow

Bench of the Allahabad High Court. We are of the

view that in this case the Judges at the principal

seat of the Allahabad High Court may not exercise

jurisdiction in view of the provisions of the

Amalgamation Order and the explanation thereof

by the Supreme Court in Nasiruddin's case.”

37.The reasons which primarily weighed with the Division Bench in

Sanjay Somani (supra) for its conclusion, are to be found in

paragraphs 10, 11 and 12 of the judgement which are being

reproduced hereinbelow:

“9.The dictionary meaning of the word 'case'

shows that it is a word of comprehensive import. In

the context in which the word 'case arising' has

been used in Clause 14 it would mean a subject

on which the judicial power is capable of acting

and which has been submitted to it by a party in

the forums required by law. Therefore, if any order

is passed in any proceedings by a criminal Court

situate within the area of Oudh and the same is

challenged before the High Court it is the Lucknow

Bench of the High Court alone which will have

jurisdiction in the matter, and not the principal seat

of High Court at Allahabad.

10. …............ In Nirmal Dass Khaturia and others

Versus S. T. Tribunal, U. P. and others, AIR 1972

Allahabad 200, it was held by a Full Bench of this

Court that with regard to the petitioners under

Article 226 of the Constitution the same will be a

“case arising within the areas in Oudh” only if the

right of the petitioner in such an application arose

first at a place within an area in Oudh. In

Nasiruddin (supra) this conclusion of the Full

Bench was specifically overruled (paragraph 36 of

the Reports) and it was held that the expression

'cause of action” in application under Article 226

would be as the expression is understood and if

the cause of action arose because of an appellate

30

order or the revisional order, which came to be

passed at Lucknow, then Lucknow Bench would

have jurisdiction though the original order was

passed at a place outside the areas in Oudh.

11. Sri Giri has placed strong reliance on the

following observations made in the Nasiruddin

(supra) in paragraph 37 of the reports where

conclusions were summarised:

“.....Fifth, a criminal case arises where the

offence has been committed or otherwise as

provided in the Criminal Procedure Code. That will

attract the jurisdiction of the Court at Allahabad or

Lucknow. In some cases depending on the facts

and the provision regarding jurisdiction, it may

arise in either place.”

12. In our opinion, the aforesaid observations have

been made in a general manner with regard to

normal situation and they cannot be construed

literally or in a strict manner. The Supreme Court

was not contemplating a situation where a special

Court has been created to try such type of offences

which had been investigated by the CBI and that

single Court has been conferred jurisdiction to try

such cases of several districts as in the case here.

The observation, “a criminal case arises where the

offence has been committed” does not mean that a

criminal case would necessarily be arising in the

local area where the offence has been committed.

When the Court used the words, “or otherwise as

provided in the Criminal Procedure Code”, it

obviously meant the place where the criminal

Court will have jurisdiction to hold enquiry or trial

having regard to Chapter XIII of the Code of

Criminal procedure. The Court of Special Judge

(Anti Corruption), Lucknow has been conferred

jurisdiction to try the offence in question which was

committed in Kanpur on account of the jurisdiction

conferred upon it by exercise of power under the

relevant provisions of the Code of Criminal

Procedure. Since the case was investigated by the

C. B. I, the Special Judge (Anti Corruption),

Lucknow has exclusive jurisdiction to try the

offence. The petitioners are not being prosecuted

in any case before a criminal Court at Kanpur.

31

Even though the offence was committed at Kanpur

the jurisdiction of the Court of Sessions at Kanpur

has been ousted on account of the jurisdiction

conferred upon it by the exercise of power under

the relevant provisions of the Code of Criminal

Procedure. Since the case was investigated by the

CBI, the Special Judge (Anti-Corruption), Lucknow,

has exclusive jurisdiction to try the offence. The

petitioners are not being prosecuted in any case

before a criminal Court at Kanpur. Even though the

offence was committed at Kanpur the jurisdiction

of the Court of Sessions at Kanpur has been

ousted on account of conferment of jurisdiction on

the Court of Special Judge (Anti-Corruption),

Lucknow, by issuing notification under the relevant

provisions of Code of Criminal Procedure. The

relief sought by the petitioners in the present

petition under Section 482 Cr. P. C. is the quashing

of the order passed by the Special Judge, (Anti

Corruption), Lucknow. Therefore, the abovequoted

observation relied upon Sri Giri cannot be

interpreted to mean that even in such a fact

situation the principal seat at Allahabad will have

jurisdiction to entertain the petition.”

38.We now proceed to test the correctness of the conclusions of the

two Division Benches and the reasons given in support thereof in the

background of the relevant provisions of Cr. P. C. and P. C. Act and

Clause 14 of the Amalgamation Order, 1948 as interpreted by the Apex

Court in the case of Nasiruddin (supra) which in-disputedly is the most

authoritative pronouncement on the issue involved till date. It will be

useful to reproduce the relevant provisions of the Amalgamation Order,

1948, Cr. P. C. and of the P. C. Act

The United Provinces High Courts

(Amalgamation) Order, 1948.

2 (a) “the Act” means the Government of India Act,

1935 as for the time being in force in the Dominion

of India;

32

“appointed day” means the twenty-sixth day of July,

1948;

And

“existing High Courts” means the High Courts

referred to in Section 219 of the Act as the High

Courts in Allahabad and the Chief Court in Oudh.

(b) the Interpretation Act, 1889, applies for the

interpolation of this order as it applies for the

interpretation of an Act of Parliament.”

3. As from the appointed day, the High Court in

Allahabad and the Chief Court in Oudh shall be

amalgamated and shall constitute one High Court

by the name of the High Court of Judicature at

Allahabad (hereinafter referred to as ‘the new High

Court’).

7. (1) The new High Court shall have, in respect of

the whole of the United Provinces all such original,

appellate and other jurisdiction as, under the law in

force immediately before the appointed day, is

exercisable in respect of any part of that Province

by either of the existing High Courts.

(2) The new High Court shall also have in respect

of any area outside the United Provinces all such

original, appellate and other jurisdiction as under

the law in force immediately before the appointed

day is exercisable in respect of that area by the

High Court in Allahabad.”

“14. The new High Court, and the judges and

division courts thereof, shall sit at Allahabad or at

such other places in the United Provinces as the

Chief Justice may, with the approval of the

Governor of the United Provinces, appoint:

Provided that unless the Governor of the United

Provinces with the concurrence of the Chief Justice

otherwise directs, such judges of the new High

Court not less than two in number , as the Chief

Justice , may, from time to time nominate, shall sit

at Lucknow in order to exercise in respect of cases

arising in such areas in Oudh, as the Chief Justice

may direct, the jurisdiction and power for the time

being vested in the new High Court:

Provided further that the Chief Justice may in his

discretion order that any case or class of cases

arising in the said areas shall be heard at

33

Allahabad.”

Code of Criminal Procedure

2.Definitions.-

2. In this Code, unless the context otherwise

requires, -

(j)"local jurisdiction", in relation to a Court or

Magistrate, means the local area within which the

Court or Magistrate may exercise all or any of its or

his powers under this Code;

7.Territorial divisions.-

(1) Every State shall be a sessions division or shall

consist of sessions divisions; and every sessions

division shall, for the purposes of this Code, be a

district or consist of districts:

Provided that every metropolitan area shall, for the

said purposes, be a separate sessions division and

district.

(2) The State Government may, after consultation

with the High Court, alter the limits or the number

of such divisions and districts.

(3) The State Government may, after consultation

with the High Court, divide any district into sub-

divisions and may alter the limits or the number of

such sub-divisions.

(4) The sessions divisions, districts and sub-

divisions existing in a State at the commencement

of this Code, shall be deemed to have been formed

under this section.

9.Court of Session.-

(1)The State Government shall establish a Court of

Session for every sessions division.

34

(2) Every Court of Session shall be presided over

by a Judge, to be appointed by the High Court.

(3) The High Court may also appoint Additional

Sessions Judges and Assistant Sessions Judges

to exercise jurisdiction in a Court of Session.

(4) The Sessions Judge of one sessions division

may be appointed by the High Court to be also an

Additional Sessions Judge of another division, and

in such case he may sit for the disposal of cases at

such place or places in the other division as the

High Court may direct.

(5) Where the office of the Sessions Judge is

vacant, the High Court may make arrangements

for the disposal of any urgent application which is,

or may be, made or pending before such Court of

Session by an Additional or Assistant Sessions

Judge, or, if there be no Additional or Assistant

Sessions Judge, by a Chief Judicial Magistrate, in

the sessions division; and every such Judge or

Magistrate shall have jurisdiction to deal with any

such application.

(6) The Court of Session shall ordinarily hold its

sitting at such place or places as the High Court

may, by notification, specify; but, if, in any

particular case, the Court of Session is of opinion

that it will tend to the general convenience of the

parties and witnesses to hold its sittings at any

other place in the sessions division, it may, with the

consent of the prosecution and the accused, sit at

that place for the disposal of the case or the

examination of any witness or witnesses therein.

Explanation.- For the purposes of this Code,

"appointment" does not include the first

appointment, posting or promotion of a person by

the Government to any Service, or post in

connection with the affairs of the Union or of a

State, where under any law, such appointment,

posting or promotion is required to be made by

Government.

35

11.Courts of Judicial Magistrates.-

(1) In every district (not being a metropolitan area),

there shall be established as many Courts of

Judicial Magistrates of the first class and of the

second class, and at such places, as the State

Government may, after consultation with the High

Court, by notification, specify.

(2) The presiding officers of such Courts shall be

appointed by the High Court.

(3) The High Court may, whenever it appears to it

to be expedient or necessary, confer the powers of

a Judicial Magistrate of the first class or of the

second class on any member of the Judicial

Service of the State, functioning as a Judge in a

Civil Court.

14.Local jurisdiction of Judicial Magistrates.-

(1) Subject to the control of the High Court, the

Chief Judicial Magistrate may, from time to time,

define the local limits of the areas within which the

Magistrates appointed under section 11 or under

section 13 may exercise all or any of the powers

with which they may respectively be invested

under this Code.

(2) Except as otherwise provided by such

definition, the jurisdiction and powers of every such

Magistrate shall extend throughout the district.

[(3) Where the local jurisdiction of a magistrate,

appointed under Section 11 or Section 13 or

Section 18, extends to an area beyond the district,

or the metropolitan area, as the case may be, in

which he ordinarily holds Court, any reference in

this Code to the Court of Sessions, Chief Judicial

Magistrate or the Chief Metropolitan Magistrate

shall, in relation to such Magistrate, throughout the

area within his local jurisdiction, be construed,

36

unless the context otherwise requires, as a

reference to the Court of Sessions, Chief Judicial

Magistrate, or Chief Metropolitan Magistrate, as

the case may be, exercising jurisdiction in relation

to the said district or metropolitan area.]

177.Ordinary place of inquiry and trial.-

Every offence shall ordinarily be inquired into and

tried by a Court within whose local jurisdiction it

was committed.

178. Place of inquiry or trial.-

(a) When it is uncertain in which of several local

areas an offence was committed, or

(b) where an offence is committed partly in one local

area and partly in another, or

(c) where an offence is a continuing one, and

continues to be committed in more local areas than

one, or

(d) where it consists of several acts done in different

local areas.

it may be inquired into or tried by a Court having

jurisdiction over any of such local areas.

179.Offence triable where act is done or

consequence ensues.-

When an act is an offence by reason of anything

which has been done and of a consequence which

has ensued, the offence may be inquired into or tried

by a Court within whose local jurisdiction such thing

has been done or such consequence has ensued.

180. Place of trial where act is an offence by reason

of relation to other offence.-

When an act is an offence by reason of its relation to

37

any other act which is also an offence or which

would be an offence if the doer were capable of

committing an offence, the first-mentioned offence

may be inquired into or tried by a Court within whose

local jurisdiction either act was done.

181. Place of trial in case of certain offences.-

(1) Any offence of being a thug, or murder committed

by a thug , of dacoity, of dacoity with murder, of

belonging to a gang of dacoits, or of escaping from

custody, may be inquired into or tried by a Court

within whose local jurisdiction the offence was

committed or the accused person is found.

(2) Any offence of kidnapping or abduction of a

person may be inquired into or tried by a Court within

whose local jurisdiction the person was kidnapped or

abducted or was conveyed or concealed or detained.

(3) Any offence of theft, extortion or robbery may be

inquired into or tried by a Court within whose local

jurisdiction the offence was committed or the stolen

property which is the subject of the offence was

possessed by any person committing it or by any

person who received or retained such property

knowing or having reason to believe it to be stolen

property.

(4) Any offence of criminal misappropriation or of

criminal breach of trust may be inquired into or tried

by a Court within whose local jurisdiction the offence

was committed or any part of the property which is

the subject of the offence was received or retained,

or was required to be returned or accounted for, by

the accused person.

(5) Any offence which includes the possession of

stolen property may be inquired into or tried by a

Court within whose local jurisdiction the offence was

committed or the stolen property was possessed by

any person who received or retained it knowing or

having reason to believe it to be stolen property.

38

182. Offences committed by letters, etc.-

(1) Any offence which includes cheating may, if the

deception is practiced by means of letters or

telecommunication messages, be inquired into or

tried by any Court within whose local jurisdiction

such letters or messages were sent or were

received; and any offence of cheating and

dishonestly inducing delivery of property may be

inquired into or tried by a Court within whose local

jurisdiction the property was delivered by the person

deceived or was received by the accused person.

(2) Any offence punishable under section 494 or

section 495 of the Indian Penal Code(45 of 1860)

may be inquired into or tried by a Court within whose

local jurisdiction the offence was committed or the

offender last resided with his or her spouse by the

first marriage.

183. Offence committed on journey or voyage.-

When an offence is committed whilst the person by

or against whom, or the thing in respect of which, the

offence is committed is in the course of performing a

journey or voyage, the offence may be inquired into

or tried by a Court through or into whose local

jurisdiction that person or thing passed in the course

of that journey or voyage.

184. Place of trial for offences triable together.-

Where-

(a) the offences committed by any person are such

that he may be charged with, and tried at one trial

for, each such offence by virtue of the provisions of

section 219, section 220 or section 221, or

(b) the offence or offences committed by several

persons are such that they may be charged with and

tried together by virtue of the provisions of section

39

223, the offences may be inquired into or tried by

any Court competent to inquire into or try any of the

offences.

185. Power to order cases to be tried in different

sessions divisions.-

Notwithstanding anything contained in the

preceding provisions of this Chapter, the State

Government may direct that any cases or class of

cases committed for trial in any district may be

tried in any sessions division:

Provided that such direction is not repugnant to

any direction previously issued by the High Court

or the Supreme Court under the Constitution, or

under this Code or any other law for the time being

in force.

377. Appeal by the State Government against

sentence.-

(1) Save as otherwise provided in sub-section (2),

the State Government may, in any case of

conviction on a trial held by any Court other than a

High Court, direct the Public Prosecutor to present

an appeal to the High Court against the sentence

on the ground of its inadequacy.

(2) If such conviction is in a case in which the

offence has been investigated by the Delhi Special

Police Establishment, constituted under the Delhi

Special Police Establishment Act, 1946, (25 of

1946) or by any other agency empowered to make

investigation into an offence under any Central Act

other than this Code, the Central Government may

direct the Public Prosecutor to present an appeal

to the High Court against the sentence on the

ground of its inadequacy.

(3) When an appeal has been filed against the

40

sentence on the ground of its inadequacy, the High

Court shall not enhance the sentence except after

giving to the accused a reasonable opportunity of

showing cause against such enhancement and

while showing cause, the accused may plead for

his acquittal or for the reduction of the sentence.

397.Calling for records to exercise powers of

revision.-

(1) The High Court or any Sessions Judge may call

for and examine the record of any proceeding

before any inferior Criminal Court situate within its

or his local jurisdiction for the purpose of satisfying

itself or himself as to the correctness, legality or

propriety of any finding, sentence or order,

recorded or passed, and as to the regularity of any

proceedings of such inferior Court, and may, when

calling for such record, direct that the execution of

any sentence or order be suspended, and if the

accused is in confinement, that he be released on

bail or on his own bond pending the examination of

the record.

Explanation.- All Magistrates, whether Executive or

Judicial, and whether exercising original or

appellate jurisdiction, shall be deemed to be

inferior to the Sessions Judge for the purposes of

this sub-section and of section 398.

(2) The powers of revision conferred by sub-

section (1) shall not be exercised in relation to any

interlocutory order passed in any appeal, inquiry,

trial or other proceeding.

(3) If an application under this section has been

made by any person either to the High Court or to

the Sessions Judge, no further application by the

same person shall be entertained by the other of

them.

Sections 3, 4 and 27 of the Prevention of

Corruption Act are reproduced below:

41

3. Power to appoint special Judges: (1) The

Central Government or the State Government may,

by notification in the Official Gazette, appoint as

may special Judges as may be necessary for such

area or areas or for such case or group of cases as

may be specified in the notification to try the

following offences, namely:--

(a) any offence punishable under this Act; and

(b) any conspiracy to commit or any attempt to

commit or any abetment of any of the offences

specified in clause (a)

(2) A person shall not qualifed for appointment as a

special Judge under this Act unless he is or has

been a Sessions Judge or an Additioinal Sessions

Judge or an Assistant Sessions Judge under the

Code of Criminal Procedure, 1972 (2 of 1974).

4. Cases triable by special Judges----- (1)

Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974), or in any

other law for the time being in force, the offences

specified in sub-section (1) of Section 3 shall be

tried by special Judges only.

(2) Every offence specified in sub-section (1) of

Section 3 shall be tried by the special Judge for the

area within which it was committed, or, as the case

may be, by the special Judge apponted for the

case, or where there re more special Judges than

one for such area, by such one of them as may be

specified in this behalf by the Central Government.

(3) When trying any case, a special Judge may

also try any offence, other than an offence

specified in Section 3, with which the accused may,

under the Code of Criminal Procedure, 1973 (2 of

1974), be charged at the same trial.

(4) Notwithstanding anything contained in the Code

of Criminal Procedure, 1973 (2 of 1974), a special

Judge shall, as far as practicable, hold the trial of

an offence on day-to-day basis.”

27. Appeal and revision

Subject to the provisions of this Act, the High Court

may exercise, so far as they may be applicable, all

42

the powers of appeal and revision conferred by the

Code of Criminal Procedure, 1973 on a High Court

as if the court of special Judge were a court of

Session trying cases within the local limits of the

High Court.”

39.The Division Bench of this Court in the case of Dr. Balram Dutt

Sharma was dealing with the question whether the bail application on

behalf of a accused against whom chargesheet was submitted before

the Special Court, C. B. I. at Lucknow was maintainable before the

Principal Bench or Lucknow Bench in view of the fact that the alleged

offence of misappropriation, forgery and cheating was committed by

him in the district of Meerut. The Division Bench after referring to the

judgement of Nasiruddin (supra) and the First proviso to Clause 14 of

the Amalgamation Order, 1948 and the provisions of Sections-437 and

438 Cr. P. C. held that the cause of action for bail might be

differentiated from as cause of action for writ petition and cause of

action for bail may only arise after the accused is detained and

arrested in connection with the F. I. R. and chargesheet and since in

the case of Dr. Balram Dutt Sharma, the parent F. I. R. was lodged at

Lucknow, although the F. I. R. against Dr. Balram Dutt Sharma was

registered at Meerut but he was arrested pursuant to the basic / parent

F. I. R. filed at Lucknow and chargesheet was also laid before the

Special Court, C. B. I. at Lucknow, the Division Bench was of the view

that the cause of action for filing the bail application arose within the

jurisdiction of Lucknow Bench of Allahabad High Court alone and the

Judges at the Principal seat had no jurisdiction to entertain the bail

application.

40.The question which now arises is whether the fifth conclusion of

Nasiruddin (supra) which lays down the principles for determining the

jurisdiction of criminal cases has been correctly interpreted in Dr.

Balram Dutt Sharma. The Apex Court has categorically held in

43

Nasiruddin's case that a criminal case arises where the offence has

been committed or as otherwise provided in Cr. P. C. The Division

Bench in Dr. Balram Dutt Sharma (supra) erred in observing that the

cause of action for moving the bail application arose at the place where

the basic F. I. R. was lodged in connection with which the accused was

arrested and detained and the place where the Special Court before

which chargesheet was filed, is situate. In the case of Dr. Balram Dutt

Sharma (supra) there was no ambiguity with regard to the place where

offence was committed and thus not only the district Meerut was the

place of the origin of the case but also part of the cause of action had

arisen within the district Meerut, which is subject to territorial

jurisdiction of Principal Bench and hence it was incorrectly concluded

in Dr. Balram Dutt Sharma's case that the Lucknow Bench alone had

jurisdiction to entertain the bail application on a wholly erroneous

premise.

41.Thus, in the light of the aforesaid observations, we have no

hesitation in holding that the issue regarding the jurisdiction of the

Principal Bench at Allahabad and the Lucknow Bench of Allahabad

High Court to entertain a bail application in a case where the offence

was committed at Meerut which was within the territorial jurisdiction of

Principal Bench at Allahabad and the F. I. R. was also filed at Meerut

but parent F. I. R. was lodged at Lucknow and charge-sheet was also

submitted at Lucknow, was incorrectly decided by the Division Bench

without applying the principles enunciated by the Apex Court in the

case of Nasiruddin (supra) correctly.

42.The grounds noted by the Division Bench of this Court in Sanjay

Somani (supra) for its conclusions interalia are that the view taken by

this Court in Nirmal Dass Khaturia (supra) that with regard to the

petitioners under Article 226 of the Constitution of India, that a case

can be said to arise within the areas in Oudh only if the right of the

44

petitioner in such an application arose first at a place within the area in

Oudh, was specifically overruled in Nasiruddin's case; and that the fifth

conclusion drawn in Nasiruddin's case in para 37 of the reports was

made in a general manner with regard to normal situation and the

Supreme Court was not contemplating a situation where the Special

Court had been created to try a particular class of offences which had

been investigated by the C. B. I and that single court had been

conferred jurisdiction to try such cases of several districts and that the

observation “a criminal case arises where the offence has been

committed” does not mean that a criminal case may necessarily be

arising in the local area where the offence has been committed. The

Division Bench in Sanjay Somani (supra) further justified its conclusion

by explaining that the words “case arising” in Clause 14 of the

Amalgamation Order, 1948 means a subject on which the judicial

power is capable of acting and which has been submitted to it by a

party in the forms required bylaw and therefore, if any order is passed

in any case by a criminal Court situate within the area of Oudh, the

same can be challenged only before Lucknow Bench of the High Court

which will alone have jurisdiction in the matter and not the Principal

Seat of the High Court at Allahabad.

43.In our opinion, the reasons given by the Division Bench in Sanjay

Somani in support of its conclusion and for distinguishing the law laid

down by the Apex Court in Nasiruddin's case do not appear to be

sound.

44.The Division Bench of this Court in Sanjay Somani has not

correctly construed the principles laid down by the Apex Court in

Nasiruddin's case and more particularly its fifth conclusion by referring

to the same as one made “in a general manner”. In the light of the facts

noticed hereinabove, it cannot be said that the fifth conclusion was

either a stray observation or one made in a cursory manner by the

45

Four Judge Bench. The Division Bench failed to notice that the Apex

Court in Nasiruddin's case apart from hearing the two civil appeals

arising out of the orders passed in writ petitions was also hearing a

criminal appeal which arose out of a judgement passed by the

revisional court and it was not a case where the Apex Court was not

conscious of a case where the trial was held at Raebareli within the

jurisdiction of the Lucknow Bench and the subsequent proceedings.

The fifth conclusion was recorded by the Apex Court fully conscious of

the legal position and the same was binding and conclusive.

45.The Division Bench has further totally mis-constructed the fourth

conclusion of the Apex Court in Nasiruddin's case in holding that the

interpretation of the expression “cases arising in such areas in Oudh”

as propounded by the Full Bench of this Court in Nirmal Dass Khathura

(supra) that a case would be said to be first arising within the areas of

Oudh, with regard to the writ petitions, only if the right of the petitioner

in such an application arose first in a place within the areas in Oudh,

was overruled in Nasiruddin's case and further in observing that when

the Court used the words “or otherwise as provided in the Criminal

Procedure Code” in Nasiruddin's case, it obviously meant the place,

where the Criminal Court will have jurisdiction to hold enquiry or trial

having regard to Chapter XIII of the Code of Criminal Procedure.

46.The Apex Court had in fact while setting aside the fourth

conclusion of Nirmal Dass Khathuria (supra) had not held that where

the case originates in a place outside the territorial jurisdiction of Oudh

but appeal or revisional order is passed by the authority at Lucknow,

the Lucknow Bench alone will have jurisdiction to entertain a petition

challenging such an order. It merely decided that in such a

contingency, Lucknow Bench will have jurisdiction though the original

order was passed in a place outside the areas of Oudh meaning

thereby that in such circumstances where the cause of action arises

46

partly in the specified areas of Oudh or part of the cause of action

arises outside the specified areas, it will be open to the litigant who is

dominus litis to frame the case appropriately to attract the jurisdiction

either at Lucknow Bench or principal seat at Allahabad..

47.In our view, there is nothing in Chapter XIII of the Criminal

Procedure Code, which may lend support to the theory advanced by

the Division Bench that it is the location of the Court which is

determinative of the fact whether challenge to the orders passed by it

can be entertained by the principal seat at Allahabad or Lucknow

Bench of the Allahabad High Court. The inherent fallacy in the

reasoning of the Division Bench is apparent from the following:

48.A careful reading of Clause 2 of the Amalgamation order, 1948

along with its proviso unequivocally indicates that the extent of the

jurisdiction of Lucknow Bench and the Principal seat at Allahabad can

be governed and decided only on the strength of the provisions

contained in the Constitution of India and the Amalgamation Order,

1948 which stands saved by virtue of Article 225 of the Constitution of

India and no notification or order made under the P. C. Act or the Cr. P.

C. can eclipse, abridge or modify the distribution of the territories of the

two seats of the High Court.In the present case there is no dispute that

the offence was committed outside the Oudh area in Allahabad. There

is also no dispute about the fact that a writ petition challenging the first

information report registered against the applicant was maintainable at

Allahabad and merely because the offence complained happens to be

one under the Prevention of Corruption Act which was investigated by

the C. B. I. and chargesheet was submitted before the Special Judge,

C. B. I., Lucknow which has been conferred the jurisdiction to try the

offences under the Prevention of Corruption Act committed in certain

districts of U. P. mentioned in the relevant notification including

Allahabad, it cannot be said that either no part of cause of action arose

47

within Allahabad or Allahabad ceased to be the place from where the

case arose and the Principal Bench at Allahabad had no jurisdiction to

entertain an application under Section 482 Cr. P. C. challenging the

order passed by the C. B. I. Court at Lucknow.

49.Regard may further be had to the fact that when the Code of

Criminal Procedure refers to the local jurisdiction, it sets out the

territories over which the Court of Sessions and Magistrate would

exercise jurisdiction. In so far as the High Court is concerned, it defines

to mean the High Court of the State. Neither the Cr. P. C. nor the

Prevention of Corruption Act touch or modify the territorial jurisdiction

of the High Court. No notification issued by the State Government

directing that any case or class of cases committed for trial in any

district be tried in any Sessions Division by a Special Court, can have

the effect of increasing or decreasing the territorial jurisdiction of the

Lucknow Bench which stands finally determined under Clause 14 of

the Amalgamation Order, 1948. This embargo on the power of the

State Government in this regard is also borne out from the proviso to

Section 185 Cr. P. C. which clearly provides that the power under

Section 185 Cr. P. C. can be exercised by the State Government

subject to the condition that any notification or direction issued under

the aforesaid section is not repugnant to any direction previously

issued by the High Court either under the Constitution or the Code of

Criminal Procedure or any other law for the time being in force.

50.From the above, it is apparent that although the State

Government may for certain reasons direct that a class of cases

otherwise triable in a particular Sessions division, may be transferred to

any other Sessions Division such exercise of power would not be liable

to be read in any manner contrary to any direction of the High Court or

any other law for the time being in force. There is no dispute that the

Amalgamation Order, 1948 was a law for the time being in force at the

48

time of the commencement of the Constitution. The Division Bench in

Sanjay Somani holding that the context in which the words “case

arising” has been used in Clause 14 of the Amalgamation Order, would

mean a subject on which the judicial power is capable of acting and

which has been submitted to it by a party in the forums required by law

and that “definition of 'case' is wider than that of a 'suit' or 'criminal

prosecution' or a 'proceedings in rem,' although in law it usually applies

to one of them.” and therefore, if any order is passed in any

proceedings by a criminal court situate within the area of Oudh and the

same is challenged before the High Court, it is the Lucknow Bench of

High Court alone, which will have jurisdiction in the matter and not the

Principal Seat of High Court at Allahabad, has totally misread the fourth

conclusion of Nasiruddin's case which clearly states that the place of

origin of a criminal case, will be the place where the offence has been

committed and if the interpretation of the expression “case arising”

mentioned in Clause 14 of the Amalgamation Order, 1948 as

propounded in Sanjay Somani (supra) is accepted to be correct, the

same would amount to enlarging the territorial jurisdiction of the

Lucknow Bench. The Apex Court in Nasiruddin's case has recorded

that if the cause of action arises wholly or in part at a place within the

specified Oudh areas, the Lucknow Bench will have jurisdiction and if

the casue of action arises wholly within the specified Oudh areas, it is

indisputable that the Lucknow Bench will have exclusive jurisdiction in

such a matter and if the cause of action arises in part within the

specified areas in Oudh, it would be open to the litigant who is dominus

litis to have his forum conveniens.

51.Reference may also be made to Section 27 of the Prevention of

Corruption Act which provides that subject to the provisions of this Act,

the High Court may exercise, so far as they may be applicable, all

powers of appeal and revision conferred by the Code of Criminal

49

Procedure, 1973 on a High Court as if the Court of Special Judge was

a Court of Sessions trying cases within the local limits of the High

Court.

52.As envisaged under the Prevention of Corruption Act, a Special

Judge may be appointed for trial of offences and the said Judge may

exercise powers over such areas or group of cases as may be

specified by the State Government. Under Section 4 (2) of the

Prevention of Corruption Act, 1988, every offence punishable

thereunder is liable to be tried by a Special Judge appointed for the

area within which it was committed.

53.Thus, what follows from the above is that the Special Judge may

hold a trial in respect of an offence committed under the Prevention of

Corruption Act sitting at any place either within or outside the territorial

jurisdiction of a High Court or its Bench. If the intention of the

Legislature was that the Special Judge appointed under Section 4 (2)

of the Prevention of Corruption Act shall be treated subordinate only to

Principal Bench at Allahabad High Court or Lucknow Bench of

Allahabad High Court, as the case may be, depending upon the

location of such Special Court, such stipulation would have definitely

been found in Section 27 of the Prevention of Corruption Act which

provides that the High Court may exercise all powers of appeal and

revision conferred by the Code of Criminal Procedure on the High

Court. The absence of any such provision under Section 27 of the

Prevention of Corruption Act and the use of words “as if” and “were a”

in Section 27 of the Prevention of Corruption Act gives rise only to one

inference that the court of Special Judge constituted under the

Prevention of Corruption Act would be like a Court of Sessions situate

within the local limits of the High Court.

54.Thus, it would be a misnomer to hold that the Lucknow Bench of

this Court alone will have jurisdiction to entertain a petition under

50

Section 482 Cr. P. C. or Criminal Revision or appeal filed against the

judgement and order of conviction or acquittal passed by the Special

Court, C. B. I. constituted at Lucknow irrespective of the place of origin

of the case, i. e. where the offence was committed. Any such

interpretation of first proviso to Clause 14 of the Amalgamation Order,

1948 as well as the provisions of the Code of Criminal Procedure

would be contrary to the law laid down by the Apex court in the case of

Nasiruddin (supra).

55.Thus, what emerges from the foregoing discussion, is that the

conclusions drawn by the two Division Benches in Dr. Balram Dutt

Sharma and Sanjay Somani (supra) while interpreting the words “cases

arising in such areas in Oudh”, are against the judgement of the Apex

Court in Nasiruddin's case. It would be worthwhile to take note of the

fact that the Apex Court had clearly ruled that the question whether the

Lucknow Bench or the Principal seat at Allahabad would have

jurisdiction, would depend upon the “cause of action” of the matter

before the Court and in so far as the criminal matters are concerned,

the Bench specifically held that it would depend on the place where the

offence was committed or as otherwise provided in the Cr. P. C. In so

far as the Cr. P. C. is concerned, the territorial jurisdiction of the Courts

is provided for in Chapter XIII. Section 177 of the Cr. P. C. provides that

the offence is ordinarily to be tried within the local jurisdiction of the

Court where it is committed. Sections-179 to 185 provide for various

contingencies to decide where the trial of the offence may be held. The

aforesaid provisions far from extinguishing or restricting the basic

principle enshrined in Section 177 expand it to cover Courts where a

part of the offence may have been committed or where a part of cause

of action relating to the crime may accrue. From the above, it is clear

that the jurisdiction of two seats of the High Court would depend upon

the cause of action relating to the crime committed. If a part of the

51

cause of action of the crime namely its commission arises in a district

within one of the two seats, then the said seat would certainly retain

jurisdiction to consider an appeal or revision or a petition under Section

482 Cr. P. C. in respect of the same. In case the crime is triable before

a Special Judge, whose Court may be located within the jurisdiction of

one of the seats of the High Court, as is factual position in the present

case, that would not be sufficient ground to denude the other seat of its

jurisdiction. In a case such as the case in hand where admittedly the

offence was committed in Allahabad and the F. I. R. was also lodged at

Allahabad, which is within the territorial limits of the Principal Bench of

Allahabad High Court, it goes without saying that part of the cause of

action had accrued within the territorial limits of Allahabad district,

notwithstanding the fact that the impugned order was passed by the

Special C. B. I. Court located at Lucknow, which has been conferred

with the exclusive jurisdiction to try the offences under the Prevention

of Corruption Act, it would be incorrect to hold that the Principal Bench

has no jurisdiction to entertain a petition under Section 482 Cr. P. C., a

criminal appeal or a criminal revision against the order passed by such

Special Court at Lucknow and such an interpretation would be in direct

conflict with the judgement of the Apex Court in Nasiruddin's case. The

contrary view expressed by the Division Bench in para 12 of the

judgement of this Court in Sanjay Smonai (supra), is thus palpably

incorrect.

56.Our answers to the two questions referred to us are as follows:

(1)The territorial jurisdiction of the two Benches of the Allahabad

High Court has to be decided in view of the first proviso to Clause 14 of

the Amalgamation Order, 1948 as interpreted in the case of Nasiruddin

(supra) by the Apex Court and the notifications issued by the State

Government under the provisions of Code of Criminal Procedure and

the Prevention of Corruption Act, 1988 appointing Special Judges to

52

hold trial in respect of certain class of offences under the Prevention of

Corruption Act or any other Special Act while sitting at any place either

within or outside the territorial jurisdiction of High Court or its Bench,

such exercise of power by the State Government cannot in any manner

be read contrary to any direction of the High Court or any other law for

the time being in force including the Amalgamation Order, 1948 by

which the respective territorial jurisdiction of the Principal Bench and

the Lucknow Bench of this Court have been determined.

(2)The principle of law enunciated by the two Division Benches of

this Court in the case of Dr. Balram Dutt Sharma and Sanjay Somani

that for deciding the territorial jurisdiction, it is the location of the Court

which has passed the impugned order or where the proceedings are

pending, which shall be the determinative factor is totally against the

provisions and object of the Clause 14 of the Amalgamation Order,

1948 and the judgement of the Apex Court in Nasiruddin (supra) and

para 14 of U. P. Rashtriya Chini Mill Adhikari Parishad, Lucknow

(supra).

56.Thus, in view of the above, we have no hesitation in holding that

the Division Benches of this Court in the cases of Dr. Balram Dutt

Sharma and Sanjay Somani (supra) do not lay down the correct law on

the issue.

57.Reference is answered accordingly.

58.The matters are now remitted to the learned Single Judge for

decision on merits.

Dated: 10

th

October, 2013.

HR