ABHAY LALAN Vs. YOGENDRA MADHAVLAL

JUDGEMENT

(1.) THE short point that arises for consideration is whether a question of jurisdiction raised by the accused before the commencement of the trial can be postponed for decision after the examination of the complain: ant and witnesses. The accused in C. C. No. 74 of 1980 on the file of the Addl Judicial Magistrate of the 1st Class (II), Ernakulam is the petitioner. The respondent appointed the petitioner as their agent at Cochin to attend to their ships which called at the Port of Cochin. On the allegations that the petitioner misappropriated collections made on behalf of the resondent the above complaint was filed. The offices air leged against the petitioner are those under Sections 403,, 409, 420 and 477-A I. P. C. When the case came up for trial, the petitioner contended that the court has no territorial jurisdiction to try the case. As directed by the court the petitioner filed M. P. No. 456 of 1981 raising the, question of jurisdiction and requesting the court to decide the question of jurisdiction before the commencement of the trial. The learned Magistrate disposed of that petition by the following order: To be considered after the examination of the complainant and witnesses. The petitioner has challenged the above order in this Criminal Miscellaneous Case.

(2.) SECTIONS 177 and 462 of the Criminal P. C. 1973 read : 177. Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdictiofi it was commited. 462. No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, subdivision or other local area, unless it appears that such error has in fact occasioned a failure of justice. The rule is that an offence is to be inquired into and tried by a court within whose territorial jurisdiction it was committed. There are of course exceptions to this rule. Simply because Section 462 of the Code is there to save decisions of courts which had no territorial jurisdiction to try the case, it cannot be said that a Magistrate can be indifferent on the question of jurisdiction. 'the lex fori or law of jurisdiction in which relief is sought controls as to all matters pertaining to remedial (i. e. procedural) as distingushed from substantive rights. If the question of jurisdiction is raised, the trial can be commenced only after deciding that question. Otherwise, Section 177 of the Code will become otiose Not only that, the application of Section 462 arises only after the decision is rendered by a court which has no territorial jurisdiction. The decision regarding jurisdiction is to be given on the basis of the allegations made and the averments contained in the complaint of the charge as the case may be. It is not the evidence that is yet to be ad- duced in the case that is going to confer jurisdiction on the court. So. the learned Magistrate, was clearly in the wrong in postponing the decision en the question of jurisdiction by the order impugned,

(3.) IN coming to the above conclusion I find support in the. following decisions. In State v. Tavara Naika AIR 1959 Mys 193 : 1959 Cri LJ 1004 it is held: (at pp. 1004, 1005 of Cri LJ):