# SARIKA v. ADMINISTRATOR, MAHAKALESHWAR MANDIR COMMITTEE, UJJAIN (M.P.) & ORS

- **Citation:** [2020] 9 S.C.R. 303
- **Court:** Supreme Court of India
- **Decided:** 2020-09-01
- **Case number:** Civil Appeal No.4676 of 2018
- **Bench:** Arun Mishra, B. R. Gavai, Krishna Murari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sarika-v-administrator-mahakaleshwar-mandir-committee-ujjain-m-p-ors-34867
- **Pages:** 22

## Headnote

Religious heritage/monuments - Erosion of Shivalinga in Shri
Mahakaleshwar Temple, Ujjain - Prevention of - Expert Committee
consisting of experts of ASI and GSI appointed by Supreme Court
vide order dated 02.05.2018 in Sarika v. Administrator, Shri
Mahakaleshwar Mandir Committee, Ujjain (M.P.) & Ors. reported
as [2018] 4 SCR 634 - Monitoring compliance of - Held:
Considering the facts and circumstances of the Report submitted by
the Expert Committee, Report of Temple Committee and the project
report prepared by Ujjain Smart City Ltd., directions issued.
Issuing directions, the Court
HELD: Considering the facts and circumstances of the
Report submitted by the Experts Committee dated 19.01.2019
and the Report of the Temple Committee as well as the project
report prepared by the Ujjain Smart City Ltd., the following
directions are issued:- (i) The Expert Committee shall visit the
temple and submit a report by 15th December 2020, as to the
steps to be taken to prevent deterioration of Shivlinga and the
steps to be taken to preserve the temple structure, including
Chandranageshwar Temple. (ii) The Committee to do a yearly
survey and submit a report to this Court. (iii) Directions to
preserve the Shivalingam. (iv) The Temple Committee shall
provide water from Koti Thirth Kund filtered and purified and
further maintain the required pH value. (v) Let the CBRI,
Roorkee visit the temple, if necessary, and submit a project report
as per its proposal dated 17.09.2019. CBRI, Roorkee, is directed
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[2020] 9 S.C.R.
to submit a project report regarding structural stability within
six months. A sum of Rs. 41.30 Lakhs, as required by it, shall be
paid by the Central Government as early as possible. (vi) Ujjain
Smart City Ltd., as per its letter dated 27.08.2020, to undertake
Mahakaal Rudrasagar Integrated Development Approach (Phase
I and Phase II) forthwith and submit to this Court detailed project
report and the time frame within six weeks. (vii) Let the details
of necessary repairs, maintenance, and improvement be worked
out and carried out forthwith. Let the Collector prepare a
comprehensive plan for this purpose with the help of the
Superintendent Engineer and available Architect. The State
Government shall sanction fund immediately. Let a suitable plan
and estimate be prepared within four weeks, and necessary repair
and maintenance work be carried out urgently. (viii) The Expert
Committee ordered the removal of modern additions, as noted
at Item No. 20. They shall be removed, and the Temple
Committee shall file a compliance report to this Court by 15th
December, 2020. (ix) The original work in the temple is required
to be restored. As assured by the Committee, let restoration
work be done concerning eyesore painting by 15th December,
2020. The Temple Committee to ensure in future not to permit
or resort to such painting and covering of the original work,
objected by the Expert Committee. Let a report be submitted to
this Court in this regard by 15th December, 2020. (x) The Collector
and Superintendent of Police of Ujjain to ensure that encroachment
within 500 mtrs. of the area of the temple premises are removed,
as suggested by the Experts Committee. Let needful be done by
15th December, 2020, and a report be submitted to this Court.
(xi) Concerning the preservation and maintenance of
Chandranageshwar Temple, a comprehensive plan be prepared
and implemented, and be submitted to this Court for information.
(xii) If any area is slippery in Garbh Griha, the Temple Committee
to ensure that the needful is done. (xiii) Let the necessary
religious rituals be performed regularly along with other aspects
as discussed in Para 5 of the order. [Para 9][308-D-H; 309-A-H;
310-A-G]
Sarika v. Administrator, Shri Mahakaleshwar Mandir
Committee, Ujjain (M.P.) & Ors. [2018] 4 SCR 634 -
referred to.
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Case Law Reference
[2018] 4 SCR 634
referred to
Para 1

## Text

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[2020] 9 S.C.R. 303
303
SARIKA
v.
ADMINISTRATOR, MAHAKALESHWAR MANDIR
COMMITTEE, UJJAIN (M.P.) & ORS.
(M.A. No. 1235 of 2019)
In
(Civil Appeal No.4676 of 2018)
SEPTEMBER 01, 2020
[ARUN MISHRA, B. R. GAVAI AND
KRISHNA MURARI, JJ.]
Religious heritage/monuments - Erosion of Shivalinga in Shri
Mahakaleshwar Temple, Ujjain - Prevention of - Expert Committee
consisting of experts of ASI and GSI appointed by Supreme Court
vide order dated 02.05.2018 in Sarika v. Administrator, Shri
Mahakaleshwar Mandir Committee, Ujjain (M.P.) & Ors. reported
as [2018] 4 SCR 634 - Monitoring compliance of - Held:
Considering the facts and circumstances of the Report submitted by
the Expert Committee, Report of Temple Committee and the project
report prepared by Ujjain Smart City Ltd., directions issued.
Issuing directions, the Court
HELD: Considering the facts and circumstances of the
Report submitted by the Experts Committee dated 19.01.2019
and the Report of the Temple Committee as well as the project
report prepared by the Ujjain Smart City Ltd., the following
directions are issued:- (i) The Expert Committee shall visit the
temple and submit a report by 15th December 2020, as to the
steps to be taken to prevent deterioration of Shivlinga and the
steps to be taken to preserve the temple structure, including
Chandranageshwar Temple. (ii) The Committee to do a yearly
survey and submit a report to this Court. (iii) Directions to
preserve the Shivalingam. (iv) The Temple Committee shall
provide water from Koti Thirth Kund filtered and purified and
further maintain the required pH value. (v) Let the CBRI,
Roorkee visit the temple, if necessary, and submit a project report
as per its proposal dated 17.09.2019. CBRI, Roorkee, is directed
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to submit a project report regarding structural stability within
six months. A sum of Rs. 41.30 Lakhs, as required by it, shall be
paid by the Central Government as early as possible. (vi) Ujjain
Smart City Ltd., as per its letter dated 27.08.2020, to undertake
Mahakaal Rudrasagar Integrated Development Approach (Phase
I and Phase II) forthwith and submit to this Court detailed project
report and the time frame within six weeks. (vii) Let the details
of necessary repairs, maintenance, and improvement be worked
out and carried out forthwith. Let the Collector prepare a
comprehensive plan for this purpose with the help of the
Superintendent Engineer and available Architect. The State
Government shall sanction fund immediately. Let a suitable plan
and estimate be prepared within four weeks, and necessary repair
and maintenance work be carried out urgently. (viii) The Expert
Committee ordered the removal of modern additions, as noted
at Item No. 20. They shall be removed, and the Temple
Committee shall file a compliance report to this Court by 15th
December, 2020. (ix) The original work in the temple is required
to be restored. As assured by the Committee, let restoration
work be done concerning eyesore painting by 15th December,
2020. The Temple Committee to ensure in future not to permit
or resort to such painting and covering of the original work,
objected by the Expert Committee. Let a report be submitted to
this Court in this regard by 15th December, 2020. (x) The Collector
and Superintendent of Police of Ujjain to ensure that encroachment
within 500 mtrs. of the area of the temple premises are removed,
as suggested by the Experts Committee. Let needful be done by
15th December, 2020, and a report be submitted to this Court.
(xi) Concerning the preservation and maintenance of
Chandranageshwar Temple, a comprehensive plan be prepared
and implemented, and be submitted to this Court for information.
(xii) If any area is slippery in Garbh Griha, the Temple Committee
to ensure that the needful is done. (xiii) Let the necessary
religious rituals be performed regularly along with other aspects
as discussed in Para 5 of the order. [Para 9][308-D-H; 309-A-H;
310-A-G]
Sarika v. Administrator, Shri Mahakaleshwar Mandir
Committee, Ujjain (M.P.) & Ors. [2018] 4 SCR 634 -
referred to.
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[2018] 4 SCR 634
referred to
Para 1
CIVIL APPELLATE JURISDICTION: M.A. No. 1235 of 2019
in Civil Appeal No. 4676 of 2018.
From the Judgment dated 27.10.2016 of the High Court of Madhya
Pradesh, Bench at Indore in Writ Appeal No. 37 of 2014.
By Courts motion.
Tushar Mehta, SG, Saurabh Mishra, AAG, S.B. Upadhyaya, Sr.
Adv., Divyakant Lahoti, Niraj Sharma, Rohit K. Singh, Nishant Kumar,
Ms. Anshruta Maheshwari, Arjun Garg, Ms. Shrutika Garg, Rahul
Kaushik, Gurmeet Singh Makker, Rajat Nair, Raj Bahadur Yadav,
Mrs. Anil Katiyar, Atishi Dipankar, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ARUN MISHRA, J.
1. This Court is monitoring the compliance of the judgment and
order passed by this Court in Civil Appeal No. 4676/2018 on 02.05.2018.
We have appointed an Expert Committee consisting of experts of
Archaeological Survey of India and Geological Survey of India concerning
the prevention of erosion of Shivalinga in Shri Mahakaleshwar Temple
at Ujjain. The Expert Team visited Ujjain on 19.01.2019. Its Report
indicates that there was erosion of Shivalinga after the last inspection,
and it is a continuing process. The last inspection was made earlier in
2018. The time gap was short when the inspection was made. As such,
the extent of further erosion was not measured. However, the facts
remain that there was some erosion of the Shivalingam. We have vide
order dated 19.08.2020 called for the Action Taken Report from the
Temple Committee. The Temple Committee has submitted the response
to the various measures pointed out by the Committee of the Experts in
the inspection report dated 19.01.2020. Since it has been noted that the
deterioration and erosion of Lingam is a continuing process, the
photographs of July 2020 indicate that there was further erosion of the
Lingam. A patch of Shivlinga towards the side of the deity of Shri
Kartikeyan is quite visible. The matter is of grave concern as due to
reckless offerings, the Lingam of Omkareshwar Temple was destroyed.
The Report indicates that the pH value of Bhasma Aarti stands at 10.51,
which is required to be improved and is reactive to Cryptocrystalline
SARIKA v. ADMINISTRATOR, MAHAKALESHWAR MANDIR
COMMITTEE, UJJAIN (M.P.) & ORS.
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siliceous cementing material of orthoquartzite at room temperature and
causing deterioration in Jyotirlingam. Sanitation and drainage were
required to be improved. There was a mechanical erosion also of the
Lingam due to the weight of Mund Mala and Serpakarnahas. Though
their weight has been reduced to half, mechanical abrasion takes place
due to their existing weight. It was also suggested that the rubbing of the
Lingam by the devotees be strictly banned. It was also reported that
there was modern style construction made in the temple premises, which
needs to be removed. It was also pointed out that the modern construction
within the temple premises was in progress, which was required to be
stopped and removed. The necessity was also felt to restore the original
work. The walls were painted with colours, which was giving a bad look
to the ancient heritage place. There were additions in the form of eyesore
painting inside the temple, which were yet to be removed. It was reported
that ghee, milk, curd, and honey are regular in the offering. The Temple
Management Committee has decided to provide pure and natural offering
material to pilgrims. There was a necessity for a periodical review of
the remedial measures.
2. The stand of the Temple Committee is that during Bhasma
Aarti, the cloth is covered on Shivalinga and is cleaned with RO water
after that. They are regulating the entry into the Garbh Griha, and during
the COVID pandemic, no access is permitted. They have been restoring
the original work, which is in progress and will be completed within
three months. Concerning eyesore paintings, their removal is in the
process and would be completed within three months. The Temple
Committee has decided to meet monthly to do a review.
3. A Report dated 28.07.2019 indicated that Chandranageshwar
Temple in the premises was also not in good shape, and repair work was
required. Its roof has become weak.
4. The Temple Committee pointed out that there is a necessity of
further inspection by the experts' team, as the last inspection was made
11⁄2 years ago. The team of experts is located at Bhopal. They can visit
the temple at any time. Periodic inspection by the Expert Committee is
necessary for the remedial measures and to prevent erosion and to
preserve the temple structure. To ensure that there was no rubbing of
Shivalinga, the Poojaries (Janeupati, Khutpati), Purohits, and their
authorized representatives be directed to ensure that no visitors or devotees
rub the Shivalinga. There should be a video recording of the entire process,
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and it should be preserved at least for six months. The Temple Committee
shall provide water from Koti Thirth Kund filtered and purified to maintain
the required pH value and shall also provide milk from its resources so
that pure milk is offered to the deity. No visitor shall be allowed to offer
Panchamrita to Shivalinga.
5. It was pointed out that during COVID-19, visitors and devotees
are not permitted to enter the sanctum sanctorum. But in our opinion, at
the same time, customary Poojaries and Purohits must perform rituals
as they know the rituals and are expert in pooja and archana. When
the Temple Committee prepares the details of rituals, customary Poojaries
and Purohits must be associated with the Committee to render proper
help and guidance in the various matters relating to the temple. Of late,
it is seen that unfortunately the performance of necessary rituals is the
most neglected aspect in the temples, and new Poojaries do not understand
them; the same should not be the state of affairs. There is no scope for
commercialization. The myriad religious rituals and ceremonies are to
be performed regularly. We cannot direct what kind of pooja-archana
rituals should be performed, but no doubt, they should be done regularly
by the experts in the field. Accordingly, we direct that the Temple
Committee acts in the manner described above.
6. Concerning the temple structure's stability, the Temple
Committee has pointed out that on 31.07.2019, this Court directed the
Central Government to get the temple and various structures inspected
by CBRI, Roorkee. The CBRI visited the temple in September 2019
and submitted a structural assessment proposal and wanted 12 months
to submit the project report. It has claimed a sum of Rs. 41.30 Lakhs as
project charges, to be paid in advance. Prayer has been made that this
Court may direct the Central Government to bear the expenses of
Rs.41.30 Lakhs, to be paid to CBRI. The CBRI may be required to
submit its project report within a reasonable time. Shri Tushar Mehta,
learned Solicitor General appearing on behalf of the Union of India, has
agreed that the Central Government would be bearing the expenses of
Rs.41.30 Lakhs to be paid to CBRI, Roorkee.
7. It is also submitted on behalf of the Temple Committee that it is
necessary to undertake repairs and maintenance and other construction
activities within the temple premises and further, as suggested by CBRI.
The State or Central Government may be directed to contribute adequate
funds for that purpose, including for the preservation of
SARIKA v. ADMINISTRATOR, MAHAKALESHWAR MANDIR
COMMITTEE, UJJAIN (M.P.) & ORS. [ARUN MISHRA, J.]
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Chandranageshwar Temple. The Temple Committee has also prayed
that encroachment within the area of 500 mtrs. from the temple are
required to be removed, as recommended by the Expert Committee.
The concerned authorities should remove the encroachments and prohibit
the construction, otherwise than essential facilities for the public and
pilgrims.
8. The learned counsel appearing on behalf of the State of Madhya
Pradesh has placed on record a detailed plan prepared by the Ujjain
Smart City Limited (USCL) for the comprehensive development of Shri
Mahakaleshwar Temple and surrounding areas. The project is named
as "Mahakaal Rudrasagar Integrated Development Approach"
(MRIDA). Letter dated 27.08.2020 issued by CEO, Ujjain Smart City
Ltd. to the Collector is placed on record, pointing out various developments
proposed for the development in Phase I and Phase II of the
abovementioned project.
9. Considering the facts and circumstances of the Report submitted
by the Experts Committee dated 19.01.2019 and the Report of the Temple
Committee as well as the project report prepared by the Ujjain Smart
City Ltd., we issue the following directions:-
(i) That the Expert Committee shall visit the temple and submit a
report by 15th December 2020, as to the steps to be taken to prevent
deterioration of Shivlinga and the steps to be taken to preserve the temple
structure, including Chandranageshwar Temple.
(ii) We also direct the Committee to do a yearly survey and submit
a report to this Court.
(iii) To preserve the Shivalingam, we direct that :
(a) any devotee should do no rubbing of the Shivalingam.
(b) The Temple Committee to ensure that the pH value of
Bhasma during the Bhasma Aarti is improved and Shivalingam
is preserved from further deterioration and to implement the
best methodology to prevent further damage to the Lingam.
(c) The Temple Committee ensures that weight of Mund Mala
and Serpakarnahas is further reduced to preserve the
Shivalingam from mechanical abrasion. The Temple Committee
to find out a way and consider whether it is necessary to use
the Metal Mund Mala on the Shivalingam, or there can be a
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way out to use Mund Mala and Serpakarnahas without touching
the Shivalingam. Possibility of further reducing weight may
also be found out to prevent mechanical abrasion.
(d) The rubbing of curd, ghee, honey on the Shivalingam by
the devotees is also a cause of erosion. It would be appropriate
that only pouring of a limited quantity of pure milk is allowed
by the Committee. Whereas in the traditional puja to be done
on behalf of the temple, all pure materials can be used.
(e) Poojaries, Janeupati, Khutpati, Purohits, and their authorized
representatives to strictly ensure that no visitor or devotee rub
the Shivalingam at any cost. If it is done by any devotee,
accompanying Poojari or Purohit shall be responsible for not
stopping the rubbing. No rubbing of Shivalingam to be done by
anyone except during traditional Puja and Archana performed
on behalf of the temple.
(f) The entire proceedings of Puja and Archana in Garbh Griha
to be video recorded 24 hours and be preserved at least for six
months. If any violation is found by any Poojari, Purohit, let the
Temple Committee take suitable action against that Poojari or
Purohit, as considered appropriate.
(g) As agreed to on behalf of the Temple Committee, no
Panchamrita to be poured on Shivalingam by any devotee. It
may be used only during traditional Puja and Archana of the
Shivlingam.
(h) The Temple Committee shall provide pure milk from its
resources to the visitors and devotees for offering and make
arrangements for that. The Committee should ensure that no
impure or adulterated milk is offered to Shivalingam and
concerned Poojari/ Purohit to ensure compliance.
(iv) The Temple Committee shall provide water from Koti Thirth
Kund filtered and purified and further maintain the required pH value.
(v) Let the CBRI, Roorkee visit the temple, if necessary, and
submit a project report as per its proposal dated 17.09.2019. CBRI,
Roorkee, is directed to submit a project report regarding structural stability
within six months. A sum of Rs. 41.30 Lakhs, as required by it, shall be
paid by the Central Government as early as possible.
SARIKA v. ADMINISTRATOR, MAHAKALESHWAR MANDIR
COMMITTEE, UJJAIN (M.P.) & ORS. [ARUN MISHRA, J.]
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(vi) Ujjain Smart City Ltd., as per its letter dated 27.08.2020, is
directed to undertake Mahakaal Rudrasagar Integrated Development
Approach (Phase I and Phase II) forthwith and submit to this Court
detailed project report and the time frame within six weeks.
(vii) Let the details of necessary repairs, maintenance, and
improvement be worked out and carried out forthwith. Let the Collector
prepare a comprehensive plan for this purpose with the help of the
Superintendent Engineer and available Architect. The State Government
shall sanction fund immediately. Let a suitable plan and estimate be
prepared within four weeks, and necessary repair and maintenance work
be carried out urgently.
(viii) The Expert Committee ordered the removal of modern
additions, as noted at Item No. 20. They shall be removed, and the Temple
Committee shall file a compliance report to this Court by 15th December,
2020.
(ix) The original work in the temple is required to be restored. As
assured by the Committee, let restoration work be done concerning
eyesore painting by 15th December, 2020. The Temple Committee is
directed to ensure in future not to permit or resort to such painting and
covering of the original work, objected by the Expert Committee. Let a
report be submitted to this Court in this regard by 15th December, 2020.
(x) We direct the Collector and Superintendent of Police of Ujjain
to ensure that encroachment within 500 mtrs. of the area of the temple
premises are removed, as suggested by the Experts Committee. Let
needful be done by 15th December, 2020, and a report be submitted to
this Court.
(xi) Concerning the preservation and maintenance of
Chandranageshwar Temple, a comprehensive plan be prepared and
implemented, and be submitted to this Court for information.
(xii) If any area is slippery in Garbh Griha, the Temple Committee
to ensure that the needful is done.
(xiii) Let the necessary religious rituals be performed regularly
along with other aspects as discussed in Para 5 of the order.
Let the case be listed for further monitoring and consideration of
the Compliance Report in the second week of January 2021.
Divya Pandey
Directions issued.
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KAUSHIK CHATTERJEE
v.
STATE OF HARYANA & ORS.
(Transfer Petition (Crl.) No.456 of 2019)
SEPTEMBER 30, 2020
[V. RAMASUBRAMANIAN, J.]
Transfer Petition - The petitioner herein was appointed by
the second respondent, which is a non-banking finance company
and the de facto complainant in the criminal cases filed - Three
loans sanctioned by the second respondent-company, during the
period when the petitioner was in service, became the subject-matter
of the three different complaints lodged by the second respondentcompany - All three complaints were filed in Gurugram - After
completion of investigation police filed charge-sheet in 3 FIRs for
alleged offences of criminal breach of trust, cheating, forgery along
with various other offences - The petitioner sought transfer of all
three criminal cases pending in the Court of Additional Judicial
Magistrate, Gurugram to any competent Court in New Delhi - It
was contended that the entire cause of action in respect of one case
arose in Delhi and the other two cases in Indore and Surat
respectively - Held: In the instant case, the type of jurisdictional
issue raised is one of territorial jurisdiction - The answer to this
depends upon facts to be established by evidence - The facts to be
established by evidence, may relate either to the place of commission
of the offence or to other things dealt with by ss. 177 to 184 of the
Code - In such circumstances, this Court cannot order transfer, on
the ground of lack of territorial jurisdiction, even before evidence
is marshaled - These questions may have to be raised before the
court trying the offence and such Court is bound to consider the
same - Code of Criminal Procedure, 1973 - ss.461, 462 and 177 to
184.
Dismissing the transfer petitions, the Court
HELD: 1. The upshot of the discussion is (i) that the issue
of jurisdiction of a court to try an "offence" or "offender" as well
as the issue of territorial jurisdiction, depend upon facts
established through evidence (ii) that if the issue is one of
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territorial jurisdiction, the same has to be decided with respect
to the various rules enunciated in Sections 177 to 184 of the
Code and (iii) that these questions may have to be raised before
the court trying the offence and such court is bound to consider
the same. [Para 39][324-C-D]
2. As seen from the pleadings, the type of jurisdictional
issue, raised in the cases on hand, is one of territorial jurisdiction.
The answer to this depends upon facts to be established by
evidence. The facts to be established by evidence, may relate
either to the place of commission of the offence or to other things
dealt with by Sections 177 to 184 of the Code. In such
circumstances, this Court cannot order transfer, on the ground
of lack of territorial jurisdiction, even before evidence is
marshaled. [Para 41][324-E-F]
Abhiram Veer v. North Eastern Regional Agricultural
Marketing Corporation Ltd. (2000) 10 SCC 433; Asit
Bhattacharjee v. Hanuman Prasad Ojha & Ors. (2007)
5 SCC 786 : [2007] 6 SCR 939; State of Uttar Pradesh
v. Sabir Ali AIR 1964 SC 1673 : [1964] 7 SCR 435;
Ramnath Sardar v. Rekharani Sardar (1975) Criminal
Law Journal 1139; Raj Kumari Vijh v. Dev Raj Vijh
AIR 1977 SC 1101 : [1977] 2 SCR 997; Purushottam
Das Dalmia v. State of West Bengal AIR 1961 SC 1589:
[1962] 2 SCR 101 - referred to.
Case Law Reference
(2000) 10 SCC 433
referred to
Para 15
[2007] 6 SCR 939
referred to
Para 16
[1964] 7 SCR 435
referred to
Para 29
[1977] 2 SCR 997
referred to
Para 35
[1962] 2 SCR 101
referred to
Para 35
CRIMINAL ORIGINAL JURISDICTION: Transfer Petition
(Criminal) No.456 of 2019.
Petition filed under S.406 of the code of Criminal Procedure, 1973
r/w of Supreme Court Rules 2013 For Transfer of case being F.I.R. No.
452 Dated 14.09.2018.
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With
Transfer Petition (CRL.) Nos. 666 and 681 of 2019
Deepak Thukral, AAG, Vikas Singh, Neeraj Kishan Kaul, Sr. Advs,
Ms. Nandadevi Deka, Vikas Sharma, Bharat Bhushan, Ms. Divya Sharma,
Mritunjay Singh, Ms. Aakanksha Kaul, Ms. Garima Bajaj, Varun Mathur,
Akash Lamba, Sansakar Aggarwal, Manek Singh, Dr. Monika Gusain,
Rajat Bhardwaj, Advs. for the appearing parties.
The following Judgment of the Court was delivered:
JUDGMENT
1. Seeking transfer of three criminal cases, all pending on the file
of the Court of the Additional Judicial Magistrate, Gurugram, Haryana,
to any competent Court in New Delhi, a person who is implicated as one
of the accused in those three cases has come up with the above transfer
petitions.
2. I have heard Mr. Vikas Singh, learned Senior Counsel appearing
for the petitioner, Mr. Deepak Thukral, learned counsel appearing for
the State of Haryana and Mr. Neeraj Kishan Kaul, learned Senior Counsel
appearing for the de facto complainant, who is the second respondent
herein.
3. The petitioner herein was appointed on 04.08.2016 as the Group
Chief Risk Officer-Executive Director of the second respondent, which
is a non-banking finance company and which happens to be the de facto
complainant in the criminal cases whose transfer is what is sought in
these petitions. It is relevant to note that the petitioner, upon his
appointment, joined the Delhi Office of the second respondent-Company
on 04.08.2016 and he was transferred to Mumbai on 10.04.2017. The
petitioner resigned in July-2018.
4. Three loans sanctioned by the second respondent-Company,
during the period when the petitioner was in service, became the subjectmatter of three different complaints lodged by the second respondentCompany. All the three complaints were lodged by the second respondent
with the Station House Officer, Civil Lines, Gurugram P.S. For the purpose
of easy appreciation, the particulars of the loan and the borrower, as
well as the particulars of the FIR are given in the tabular column as
follows:
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S.No.
FIR No. Offences
Complained
Borrow
er
Date of
Sanction
Amount of loan
1.
452/2018 Sections 406,
408, 420, 120B r/w Section
34 of the IPC.
Zillion
Infraproject
s Private
Ltd.
26.10.2016
Rs.4,30,00,000/-
2.
748/2017 114, 120-B,
406, 420, 467,
468, 471 and
216 of the
IPC.
Al-Fatah
Tours and
Travels
22.09.2019
Rs.71,50,000/-
3.
356/2019
Sections 120B, 406, 408,
420, 387 r/w
Section 34 of
the IPC
Hotel M.S.
30.12.2016
Rs.46,00,000/-
28.12.2017
Rs.5,13,594/-
5. After completion of investigation, the police filed a chargesheet on 14.12.2018 in FIR No.452/18, for alleged offences under Sections
406, 408, 420, 120-B read with Section 34 of the Indian Penal Code
(hereinafter referred to as the "IPC").
6. Similarly, a charge-sheet was filed on 18.07.2019 in FIR No.748
of 2017 for alleged offences under Sections 114, 120-B, 406, 420, 467,
468, 471 and 216 of the IPC. Likewise a charge-sheet was filed on
24.10.2019 in FIR No.356/2019 for offences under Sections 120-B, 406,
408, 420, 387 read with Section 34 of the IPC.
7. The police also filed supplementary charge-sheets, on 06.01.2020
in the first case and on 08.11.2019 in the third case.
8. Contending (i) that no part of the cause of action arose in
Gurugram to enable the de facto complainant to lodge a complaint in the
Gurugram Police Station; (ii) that while first loan was sanctioned at
Delhi, the second loan was sanctioned at Indore and third loan was
sanctioned at Surat, nothing happened in Gurugram, entitling the de facto
complainant to invoke the jurisdiction of the investigating agency and the
Court in Gurugram; (iii) that the second respondent-de facto complainant
has deliberately filed the complaint at Gurugram, as the promoter of the
de facto complainant wields lot of influence at Gurugram and (iv) that
the petitioner will not get a fair trial at Gurugram, the petitioner has
come up with the above transfer petitions.
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9. Thus, in effect, transfer is sought primarily on 2 grounds namely
(i) lack of territorial jurisdiction and (ii) apprehension of bias.
10. But Mr. Vikas Singh, learned Senior Counsel for the petitioner
did not press into service the second ground, revolving around the
allegation that the second respondent wields a lot of influence locally in
Gurugram and that the petitioner will not get a fair trial. This saves me
of the botheration to bring on record the transcript of certain whatsapp
messages filed before me as part of the paper book.
11. Mr. Vikas Singh, learned Senior Counsel, took me through the
loan agreements under which the second respondent-Company
sanctioned the subject loans and argued that in all the three loan
agreements, the place of execution of the agreement, the Branch office
of the lender and the address of the borrower are indicated. For instance,
the loan agreement dated 26.10.2016 under which facilities were extended
to Zillion Infraprojects Private Limited (which forms the subject-matter
of FIR No.452/2018), the place of execution of agreement and the address
of the Branch Office of the lender are indicated to be at Delhi. The
address of the borrower as well as the Co-borrower are also stated to
be in Delhi. The branch of the bank on which the cheque for the loan
amount was drawn was also in Delhi.
12. Similarly the loan agreement under which facilities were
extended to Hotel M.S. (which forms the subject matter of the third
FIR) indicates the place of agreement and Branch Office of the lender
to be Indore. The address of the borrower is also stated therein to be in
Indore. The address of the lender is indicated to be in Bombay.
13. Insofar as the loan agreement under which facilities were
extended to Al Fatah Tours and Travels (forming the subject matter of
second FIR) is concerned, the place of the agreement and the Branch
Office of the lender are stated to be at Surat. The address of the borrower
is indicated to be in Surat and the address of the lender is stated to be in
Mumbai.
14. Therefore, it was contended by Mr. Vikas Singh, learned Senior
Counsel for the petitioner that the entire cause of action in respect of
one case arose in Delhi, the entire cause of action for the second case
arose in Indore and the entire cause of action for the third case arose in
Surat. It is also contended by him that the de facto complainant did not
even have an office at Gurugram and that the second respondent is
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guilty of perjury by claiming even before this Court, as though they have
an office in Gurugram. The petitioner has also taken out an application
under Section 340 of the Code of Criminal Procedure for prosecuting
the officials of the second respondent for committing perjury through
their claim that the second respondent has an office at Gurugram.
15. Mr. Neeraj Kishan Kaul, learned Senior Counsel appearing
for the second respondent contended that the question whether any part
of the cause of action arose within the local limits of jurisdiction of the
Courts in Gurugram, is a question of fact to be established by evidence
and that the same cannot be gone into in the transfer petitions. In support
of this proposition, he relied upon the decision of this Court in Abhiram
Veer Vs. North Eastern Regional Agricultural Marketing
Corporation Ltd.1 He also contended that insofar as the loan granted to
Zillion Infraprojects limited is concerned, the property offered as security
is located in Gurugram and that the second respondent was actually
sharing the office space of a company which is a 100% subsidiary of the
second respondent. Therefore, it is his contention that no wrong statement
was ever made. It is further contended that the borrowers who are also
the prime accused in these cases have not sought a transfer and that
therefore the petitioner is not entitled to seek transfer.
16. The learned Standing Counsel for the State of Haryana
supplemented the arguments of the learned Senior Counsel for the second
respondent and relied upon the decision of this Court in Asit
Bhattacharjee Vs. Hanuman Prasad Ojha &Ors.2
17. I have carefully considered the rival contentions.
18. As seen from the pleadings and the rival contentions, the
petitioner seeks transfer, primarily on the ground of lack of territorial
jurisdiction. While the question of territorial jurisdiction in civil cases,
revolves mainly around (i) cause of action; or (ii) location of the subject
matter of the suit or (iii) the residence of the defendant etc., according
as the case may be, the question of territorial jurisdiction in criminal
Cases revolves around (i) place of commission of the offence or (ii)
place where the consequence of an act, both of which constitute an
offence, ensues or (iii) place where the accused was found or (iv) place
where the victim was found or (v) place where the property in respect
of which the offence was committed, was found or (vi) place where the
1 2000 (10) SCC 433.
2 2007 (5) SCC 786
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property forming the subject matter of an offence was required to be
returned or accounted for, etc., according as the case may be.
19. While jurisdiction of a civil court is determined by(i) territorial
and (ii) pecuniary limits, the jurisdiction of a criminal court is determined
by (i) the offence and/or (ii) the offender. But the main difference between
the question of jurisdiction raised in civil cases and the question of
jurisdiction arising in criminal cases, is two-fold.
(i) The first is that the stage at which an objection as to
jurisdiction, territorial or pecuniary, can be raised, is regulated in
civil proceedings by Section 21 of the Code of Civil Procedure, 1908.
There is no provision in the Criminal Procedure Code akin to Section 21
of the Code of Civil Procedure.
(ii) The second is that in civil proceedings, a plaint can be returned,
under Order VII, Rule 10, CPC,to be presented to the proper court, at
any stage of the proceedings. But in criminal proceedings, a limited
power is available to a Magistrate under Section 201 of the Code, to
return a complaint. The power is limited in the sense (a) that it is
available before taking cognizance, as Section 201 uses the words
"Magistrate who is not competent to take cognizance"and (b) that
the power is limited only to complaints, as the word "complaint", as
defined by section 2(d), does not include a "police report".
20. Chapter XIII of the Code of Criminal Procedure, 1973 contains
provisions relating to jurisdiction of criminal Courts in inquiries and trials.
The Code maintains a distinction between (i) inquiry; (ii) investigation;
and (iii) trial. The words "inquiry" and "investigation" are defined
respectively in clauses (g) and (h) of Section 2 of the Code.
21. The principles laid down in Sections 177 to 184 of the Code
(contained in Chapter XIII) regarding the jurisdiction of criminal Courts
in inquiries and trials can be summarized in simple terms as follows:
(1) Every offence should ordinarily be inquired into and tried by a
Court within whose local jurisdiction it was committed. This rule is found
in Section 177. The expression "local jurisdiction" found in Section
177 is defined in Section 2(j) to mean "in relation to a Court or Magistrate,
the local area within which the Court or Magistrate may exercise all or
any of its or his powers under the Code"
(2) In case of uncertainty about the place in which, among the
several local areas, an offence was committed, the Court having
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jurisdiction over any of such local areas may inquire into or try such an
offence.
(3) Where an offence is committed partly in one area and partly
in another, it may be inquired into or tried by a Court having jurisdiction
over any of such local areas.
(4) In the case of a continuing offence which is committed in
more local areas than one, it may be inquired into or tried by a Court
having jurisdiction over any of such local areas.
(5) Where an offence 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. (Numbers 2 to 5 are traceable to Section
178)
(6) Where something is an offence by reason of the act done, as
well as the consequence that ensued, then the offence may be inquired
into or tried by a Court within whose local jurisdiction either the act was
done or the consequence ensued. (Section 179)
(7) In cases where an act is an offence, by reason of its relation
to any other act which is also an offence, then the first mentioned offence
may be inquired into or tried by a Court within whose local jurisdiction
either of the acts was done. (Section 180)
(8) In certain cases such as dacoity, dacoity with murder, escaping
from custody etc., the offence may be inquired into and tried by a Court
within whose local jurisdiction either the offence was committed or the
accused person was found.
(9) In the case of an offence of kidnapping or abduction, it may
be inquired into or tried by a Court within whose local jurisdiction the
person was kidnapped or conveyed or concealed or detained.
(10) The offences 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 was possessed, received or retained.
(11) An offence of criminal misappropriation or 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 was
received or retained or was required to be returned or accounted for by
the accused person.
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(12) An 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, having knowledge that it is stolen property. (Nos. 8 to 12 are
found in Section 181)
(13) An offence which includes cheating, if committed by means
of letters or telecommunication messages, may be inquired into or tried
by any Court within whose local jurisdiction such letters or messages
were sent or received.
(14) An offence of cheating and dishonestly inducing delivery of
the 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.
(15) Some offences relating to marriage such as Section 494,
IPC (marrying again during the life time of husband or wife) and Section
495, IPC (committing the offence under Section 494 with concealment
of former marriage) may be inquired into or tried by a Court within
whose local jurisdiction the offence was committed or the offender last
resided with the spouse by the first marriage. (Nos. 13 to 15 are found
in Section 182)
(16) An offence committed in the course of a journey or voyage
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. (Section 183).
(17) Cases falling under Section 219 (three offences of the same
kind committed within a space of twelve months whether in respect
of the same person or not), cases falling under Section 220 (commission
of more offences than one, in one series of acts committed together as
to form the same transaction) and cases falling under Section 221, (where
it is doubtful what offences have been committed), may be inquired into
or tried by any Court competent to inquire into or try any of the offences.
(Section 184).
21. Apart from Sections 177 to 184, which lay down in elaborate
detail, the rules relating to jurisdiction, Chapter XIII of the Code also
contains a few other sections. Section 185 empowers the State
Government to order any case or class of cases committed for trial in
any district, to be tried in any Sessions division. Section 186 empowers
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the High Court, in case where 2 or more courts have taken cognizance
of the same offence and a question as to which of them should inquire
into or try the offence has arisen, to decide the district where the inquiry
or trial shall take place. Section 187 speaks of the powers of the
Magistrate, in case where a person within his local jurisdiction, has
committed an offence outside his jurisdiction, but the same cannot be
inquired into or tried within such jurisdiction. Sections 188 and 189 deal
with offences committed outside India.
22. After laying down in such great detail, the rules relating to
territorial jurisdiction in Chapter XIII, the Code of Criminal Procedure
makes provisions in Chapter XXXV, as to the fate of irregular proceedings.
It is in that Chapter XXXV that one has to search for an answer to the
question as to what happens when a court which has no territorial
jurisdiction, inquires or tries an offence.
23. Section 460 lists out 9 irregularities, which, if done in good
faith by the Magistrate, may not vitiate his proceedings. Section 461 lists
out 17 irregularities, which if done by the Magistrate, will make the whole
proceedings void. Clause (l) of section 461 is of significance and it reads
as follows:-
"If any Magistrate, not being empowered by law in this behalf,
does any of the following things, namely:-
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(l) tries an offender:
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his proceedings shall be void"
24.