# Neeraj Goswami and others v. The State of U.P. and another

- **Citation:** (2011) 2 ILRA 830
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-07-25
- **Case number:** Criminal Misc. Application No. 3812 of 2010
- **Bench:** Shri Narayan Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/neeraj-goswami-and-others-v-the-state-of-u-p-and-another-41969
- **Pages:** 6

## Text

830 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.07.2011

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.

Criminal Misc. Application No. 3812 of
2010

Neeraj Goswami and others

 ...Petitioners
Versus
The State of U.P. and another

 ...Opposite Parties

Criminal Procedure Code-Section 482Criminal
Proceeding
pending
before
C.J.M. Lucknow-challenged on ground of
territorial jurisdiction-all the allegations
of F.I.R. disclosed the happenings at
Gurgaon (Haryana)-hence any exercise
by C.J.M. Lucknow without jurisdictionheld-misconceived-question
of
jurisdiction can be raised only after Postcognizance and not prior to cognizance

Held: Para 14

With the aforesaid observations the
Hon'ble Supreme court ultimately held
that the jurisdictional aspect becomes
relevant only when the question of
enquiry or trial arises. It is therefore,
fallacious thinking that only a Magistrate
having jurisdiction to try the case has
the power to take cognizance of the
offence. If he is a Magistrate of the First
Class his power to take cognizance of the
offence is not impaired by territorial
restrictions. After taking cognizance he
may have to decide as to the court which
has jurisdiction to enquire into or try the
offence and that situation would reach
only during the post-cognizance stage
and not earlier.
Case law discussed:
2004 (II) UP Cr.R Page 315; 2007 (1) UPCr. R
Page 282; 2008 (61) ACC 668; 1998 (37) ACC
page 860; 2009 (1) JIC 600 (All); 2000 JIC 1
(SC); 2007 (3) JIC 258 (SC); 1999 (8) SCC 686

(Delivered by Hon'ble S.N.Shukla,J.)

1. Heard Mr.Vijay Prakash, learned
Advocate alongwith Mr.Girish Chandra,
learned counsel for the petitioners and
Mr.Suresh
Chandra
Shukla,
learned
counsel for the respondent No.2 as well as
Mr.Rajendra Kumar Dwivedi, learned
Additional Government Advocate for the
State.

2. The petitioners have challenged
the proceedings of Case No.11032 of
2010, pending before the court of Chief
Judicial Magistrate, Lucknow, arising out
of case Crime No.72 of 2010, under
Sections 498-A, 313, 323,406 and 506
IPC and 3⁄4 Dowry Prohibition Act, Police
Station Mahila Thana, Lucknow, inter alia
on the ground of jurisdiction of the trial
court.

3. The learned counsel for the
petitioners drew the attention of this court
towards
the
contents
of
the
First
Information Report and submitted that all
the incidents, which have been alleged to
have taken place at Gurgaon, State of
Haryana, therefore, the learned Chief
Judicial Magistrate sitting at Lucknow has
no jurisdiction to take cognizance and
proceed with the case.

4. In support of his submission he
cited several decisions, which are being
discussed here-in-below:-

5. Y. Abraham Ajith and others
versus Inspector of Police, Chennai and
another, reported in 2004(II), UPCr.R,
page 315. In the aforesaid case the
Hon'ble Supreme Court discussed the
scope of Section 178 of the Code of
Criminal Procedure and held that there is
not even a whisper of allegations about
2 All] Neeraj Goswami and others V. The State of U.P. and another
831
any demand of dowry or commission of
any act constituting an offence much less
at Chennai. That being so, the logic of
Section 178(c) of the Code relating to
continuance of the offences cannot
applied. In a sense it is a cause of action
for initiation of proceeding against the
accused, which consists of bundle of
facts, which give cause to enforce the
legal inquiry for redress in a court of law.

6. In the case of Manish Ratan and
others versus Sate of M.P.and another,
reported in 2007 (1) UP Cr.R page 282,
the Hon'ble Supreme Court has again
discussed the scope of Section 178 of the
Criminal Procedure Code. The core
question was whether the allegations
made in the petition would constitute a
continuing offence. In this case the fatherin-law lodged the complaint with the
Police Station Jabalpur alleging that the
appellants have been ill treating his
daughter and demanded dowry. The wife
allegedly lodged another first information
report against the appellants at the Police
Station Datia. In the said complaint the
place of incident was said to have taken
place at Jabalpur. Subsequently, she was
ill treated by her husband, father-in-law
and mother-in-law and sister-in-law. So
much that she left her house and saved her
life by some means and reached in her
Mama's house at Bhopal and from there
she reached her house and since then she
has been staying with her father. In the
complaint there was nothing to show that
any ill treatment was given to the
complainant at Datia. Therefore, the
Hon'ble Supreme court held that in case
of this nature an offence cannot be held to
be a continuing one, only because the
complainant is forced to leave her
matrimonial home.

7. In the case of Bhura Ram and
others versus State of Rajasthan and
another, reported in 2008 (61) ACC
page 668, the Hon'ble Supreme Court
held that the facts stated in the complaint
discloses that the complainant left the
place where she was residing with her
husband and in-laws and came to the city
of Sri Ganganagar, State of Rajasthan,
and that all the alleged acts as per the
complaint had taken place in the State of
Punjab. Therefore, the court at Rajasthan
does not have the jurisdiction to deal with
the matter as no part of cause of action
arose in Rajasthan.

8. In defence the learned counsel for
the complainant (respondent No.2) also
cited some decisions, which are referred
here-in-below:-

9. In the case of Prabhat Ranjan
Pandey and others versus State of U.P.
And others, reported in 1998 (37) ACC
page 860, the Division Bench of this
court held that in a case for an offence
under Section 498-A IPC and 3⁄4 Dowry
Prohibition Act complaint can be filed at
any place where the cause of action arose
or continued, where the consequences
ensued and if harassment and cruelty was
continued from the house of her in-laws
to the house of her parents, then the
complaint can be filed at any of the two
places
at
the
sweet-will
of
the
complainant.

10. In the case of Deepak Joshi and
others versus State of U.P. And
another, reported in 2009 (1) JIC 600
(All), this court has held that the offence
under Section 498-A IPC is a continuing
offence. Wife can file complaint either at
the place where dowry was demanded or
where cruelty was committed and also at
832 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
place where aggrieved wife was forced to
live.

11. In the case of Satvinder Kaur
versus State (Govt. of NCT of Delhi)
and another, reported in 2000 (1) JIC 1
(SC),
the
Hon'ble
Supreme
Court
discussed the scope of Section 177 and
178 of the Code of Criminal Procedure.
The relevant paragraphs 11 and 12 are
reproduced hereunder:-

"11.Chapter
XIII
of
the
Code
provides for "jurisdiction of the Criminal
Courts in inquiries and trial." It is to be
stated that under the said Chapter there
are various provisions which empowers
the Court for inquiry or trial of a criminal
case and that there is no absolute
prohibition that the offence committed
beyond the local territorial jurisdiction
cannot be investigated, inquired or tried.
This would be clear by referring to
Sections 177 and 188. For our purpose, it
would be suffice to refer only to Sections
177 to 178 which are as under:

"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 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."

12. A reading of the aforesaid
sections would make it clear that Section
177 provides for "ordinary" place of
inquiry in trial. Section 178 inter alia
provides for place of inquiry or trial when
it is uncertain in which of several local
areas an offence was committed or where
the offence was committed partly in one
local area and partly in other and where it
consisted of several acts done in different
local areas, it could be inquired into or
tried by a Court having jurisdiction over
any of such local areas. Hence, at the
stage of investigation, it cannot be held
that SHO does not have territorial
jurisdiction to investigate the crime.

The Hon'ble Supreme Court also
held in paragraph 14 that "the legal
position is well settled that if an offence is
disclosed the Court will not normally
interfere with an investigation into the
case and will permit investigation into the
offence alleged to be completed."

12.

In
the
case
of
Asit
Bhattacharjee versus M/s.Hanuman
Prasad Ojha and others, reported in
2007 (3) JIC 258 (SC), the Hon'ble
Supreme court in paragraph 22 of the
judgment has discussed the necessary
ingredients for proving a criminal offence.
Relevant part of paragraph 22 is quoted
here-in-below:-

"22. The necessary ingredients for
proving a criminal offence must exist in a
complaint petition. Such ingredients of
2 All] Neeraj Goswami and others V. The State of U.P. and another
833
offence must be referable to the places
where the cause of action in regard to
commission of offence has arisen. A
cause of action as understood in its
ordinary parlance may be relevant for
exercise of jurisdiction under clause (2) of
Article 226 of the Constitution of India
but its definition stricto sensu may not be
applicable for the purpose of bringing
home a charge of criminal offence. The
application filed by the appellant under
Section 156(3) of the Code of Criminal
Procedure disclosed commission of a
large number of offences. The fact that
major part of the offences took place
outside the jurisdiction of the Chief
Metropolitan Magistrate, Calcutta is not
in dispute. But, even if a part of the
offence committed by the respondents
related to the appellant-Company was
committed within the jurisdiction of the
said Court, the High Court of Allahabad
should
not
have
interfered
in the
matter........"

13. In addition to the aforesaid plea
of the respondents the learned Additional
Government
Advocate
Mr.Rajendra
Kumar Dwivedi, cited a case decided by
the Hon'ble Supreme Court i.e. Trisuns
Chemical
Industry
versus
Rajesh
Agarwal and others reported in 1999
(8) SCC 686. In this case the Hon'ble
Supreme Court held that it is an erroneous
view
that
the
Magistrate
taking
cognizance of an offence must necessarily
have territorial jurisdiction to try the case
as well. The relevant paragraphs 11, 12
and 13 are reproduced hereunder:-

"11.It is an erroneous view that the
Magistrate taking cognizance of an
offence must necessarily have territorial
jurisdiction to try the case as well.
Chapter XIII of the code relates to
jurisdiction of the criminal courts "in
enquiries
and
trials".
That
chapter
contains provisions regarding the place
where the enquiry and trial are to take
place. Section 177 says that:

"177.Every offence shall ordinarily
be enquired into and tried by a court
within whose local jurisdiction it was
committed." But Section 179 says that
when an act is an offence by reason of
anything which has been done and of a
consequence which has ensued, the place
of enquiry and trial can as well be in a
court "within whose local jurisdiction
such thing has been done or such
consequence has ensued". It cannot be
overlooked that the said provisions do not
trammel the powers of any court to take
cognizance of the offence. The power of
the court to take cognizance of the
offence is laid in Section 190 of the Code.
Sub-sections (1) and (2) read thus:

"190.(1) Subject to the provisions of
this chapter, any Magistrate of the First
Class, and any Magistrate of the Second
Class specially empowered in this behalf
under
sub-section
(2),
may
take
cognizance of any offence-

(a) upon receiving a complaint of
facts which constitute such offence;

(b) upon a police report of such facts;

(c ) upon information received from
any person other than a police officer, or
upon his own knowledge, that such
offence has been committed.

(2) The Chief Judicial Magistrate
may empower any Magistrate of the
Second Class to take cognizance under
sub-section (1) of such offences as are
834 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
within his competence to enquire into or
try."

12. Section 193 imposes a restriction
on the Court of Session to take
cognizance of any offence as a court of
original jurisdiction. But "any" Magistrate
of the First Class has the power to take
cognizance of any offence, no matter that
the offence was committed within his
jurisdiction or not.

13. The only restriction contained in
Section 190 is that the power to take
cognizance is "subject to the provisions of
this chapter". There are 9 sections in
Chapter XIV most of which contain one
or other restriction imposed on the power
of a First Class Magistrate in taking
cognizance of an offence. But none of
them incorporates any curtailment on
such powers in relation to territorial
barrier. In the corresponding provision in
the old Code of Criminal Procedure
(1898) the commencing words were like
these: "Except as hereinafter provided....."
Those words are now replaced by
"Subject to the provisions of this
chapter...." Therefore, when there is
nothing in Chapter XIV of the Code to
impair the power of a Judicial Magistrate
of the First Class taking cognizance of the
offence on the strength of any territorial
reason it is impermissible to deprive such
a Magistrate of the power to take
cognizance of an offence- of course, in
certain
special
enactments
special
provisions are incorporated for restricting
the power of taking cognizance of
offences falling under such acts. But such
provisions are protected by non obstante
clauses. Anyway that is a different
matter."

14. With the aforesaid observations
the Hon'ble Supreme court ultimately held
that the jurisdictional aspect becomes
relevant only when the question of
enquiry or trial arises. It is therefore,
fallacious thinking that only a Magistrate
having jurisdiction to try the case has the
power to take cognizance of the offence.
If he is a Magistrate of the First Class his
power to take cognizance of the offence is
not impaired by territorial restrictions.
After taking cognizance he may have to
decide as to the court which has
jurisdiction to enquire into or try the
offence and that situation would reach
only during the post-cognizance stage and
not earlier.

15. In light of the aforesaid dictum
of the Hon'ble Supreme Court I do not
need to discuss the factual aspect of the
matter for the reason that the case in hand
is at the stage of post cognizance. The
Investigating
Officer
has
already
submitted the police report and the
learned Chief Judicial Magistrate has
taken cognizance, therefore, at this stage
only on the factual aspect that the offence
did not take place within the territorial
jurisdiction
of
the
Chief
Judicial
Magistrate, Lucknow, I do not feel it
appropriate to interfere in the proceedings
of the court below. Therefore, the petition
is dismissed.
---------
2 All] Anand College of Education, Agra V. The State of U.P. and others
835
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.07.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.

Misc. Single no. - 4070 of 2011

Anand College of Edu., 19. K.M Mile
Stone Agra

 ...Petitioner
Versus
The State of U.P Thru Secy., Deptt., of
Higher Edu., and others ...Respondents

Counsel for the Petitioner:
Sri Amit Jaiswal

Counsel for the Respondents:
C.S.C
Sri Anurag Verma
Sri Kuldeep Pati Tripathi

Uttar Pradesh State Universities Act
1973-Section-37
(a)-De-affiliation
of
Degree
College-without
notice
opportunity-universities
send
for
approval-held-wholly misconceived and
illegal-surprised enough if de-affiliation
already approved without enquiry-after
that entire exercise remains wholly
worthless-order
impugned
can
not
sustain-consequential direction given.

Held: Para 10

In view of the above, keeping in view
the fact that before sending the matter
to
the
State
Government,
the
respondent University has not held any
inquiry after due compliance of principle
of
natural
justice
and
providing
opportunity to the petitioners to defend
their cause, the impugned order passed
by the State Government seems to be
not sustainable and is violative of
Article 14 of the Constitution of India.
The
writ
petitions
deserve
to
be
allowed.

(Delivered by Hon'ble D.P.Singh,J.)

1 .In these bunch of fresh writ
petitions under Article 226 of the
Constitution of India, common questions
of law are involved hence the writ
petitions are decided by the present
common judgment. Learned counsel for
the parties are agree that the petitions be
decided at the admission stage. Sri J.N.
Mathur, learned Senior Counsel and
Additional Advocate General, appeared
for respondent University and submits
that the petitions be decided on substantial
question of law involved in these writ
petitions and it is not necessary to file
response to the allegations on record,
which may be looked into by the
respondent University at the time of
holding inquiry.

2. While assailing the impugned
orders
dated
14.7.2011,
petitioners
counsel submit that the respondent
University has taken a decision to deaffiliate the petitioners for extraneous
reasons. It is also alleged that the Deputy
Registrar is holding the charge of the
Office and he is managing the affairs of
the respondent University for extraneous
consideration and reasons. However,
without entering into the mala fide and
other factual averments contained in the
writ petitions, I leave it open to the
petitioners to raise at appropriate forum in
future, as the writ petitions are decided on
the pure question of law.

3. While assailing the impugned
orders, it has been submitted by the
petitioners counsel that no opportunity of
hearing was provided to the petitioners.
No any material or document was
supplied giving opportunity to rebut those
evidence which are the foundation for