SREETHARA KAMATH Vs. JAWALA PRASAD GUPTA

JUDGEMENT

(1.) The petitioner, a resident of Alleppey, is the accused in a criminal case pending the court of the Additional Munsiff Magistrate (I Class) Aligarh, Uttar Pradesh. The complaint against him was filed by the managing partner of the firm, Prakash Metal Industries. The learned magistrate presumably took cognizance of the complaint under S.420 IPC. and issued process for his appearance. A bailable warrant was issued and, on furnishing a bail bond, the accused was enlarged on condition that he would be present in court on 3-12-1968. However, instead of appearing in compliance with the bond the accused merely applied for an adjournment by forwarding an application setting out that he was ill with rheumatism and could not appear unless he was given 45 days time. Whereupon the magistrate issued a non bailable warrant for the arrest of the accused and getting to know that such a warrant had been issued to the District Superintendent of Police, Alleppey, the accused filed the present petition under S.561A. Crl. P. C., impleading as counter petitioners the complainant in the Aligarh Court, the District Superintendent of Police, Alleppey and the Inspector of Police, South Station, Alleppey. The prayer in the criminal M. P. is to quash the warrant issued by the magistrate's court on the ground that no offence has been made out in the complaint, that the munsiff magistrate at Aligarh has no territorial jurisdiction to try the petitioner for the offence alleged and that there would be irreparable injury and miscarriage of justice to the petitioner if he were arrested and taken to the far of U. P. Court where the court language is Hindi of which the petitioner is innocent.

(2.) The arguments by both sides will become clearer if considered after formulating the points raised. The petitioner's counsel argued that under S.561A Crl. P. C. the High Court's jurisdiction extends to prohibiting the execution of a warrant within the territorial jurisdiction of the High Court even though the process itself was issued by a court outside it. Unlike certain other provisions. S.561A Crl. P. C. does not restrict the power to orders of courts subordinate to the High Court concerned. He further argued that no offence had been made out even on the complaint as it is and it would be an abuse of the process of the court if on the strength of such a complaint the accused in Kerala is to be compelled to stand a trial at the other end of the country in a court in Uttar Pradesh, difficulties of distance, heightened by the barrier of language, making it impossible for the accused to get a fair trial. Even assuming that an offence had been made out, it did not arise within the limits of the Aligarh court but only in Alleppey; in that view the court which issued the warrant had no jurisdiction to take cognizance of the case and the High Court of Kerala was within its powers in quashing such a proceeding.

(3.) Counsel for the counter petitioners contended that whether an offence had been made out and whether it arose within the jurisdiction of the Aligarh court were both matters to be considered by that court and if for want of jurisdiction or for the reason that no offence had been made out the criminal proceeding was liable to be quashed, the appropriate court which had jurisdiction in that behalf was the High Court at Allahabad, the Kerala High Court having no power to set aside an order of a court outside its territorial limits. Of course, it was also contended that an offence had actually been made out and the munsiff - magistrate, (First Class) Aligarh had not acted improperly in issuing a bailable warrant and, when the bond executed pursuant thereto was broken, in issuing a non bailable warrant. There was a contention by the counter petitioners that the petitioner having submitted to the jurisdiction of the U. P. Magistrate's court could not now turn round and say that that court has no jurisdiction.