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.

9. Thus, in effect, transfer is sought primarily on 2 grounds namely (i) lack of territorial jurisdiction and (ii) apprehension of bias.

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 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. 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.

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   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 two­fold. 

(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 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.

(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 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:­
(l) tries an offender his proceedings shall be void”

­­­­­­­­­­

24. Then comes Section 462, which saves the proceedings that had taken place in a wrong sessions division or district or local area. But this is subject to the condition that no failure of justice has occasioned on account of the mistake. Section 462 reads as follows:

“462. Proceedings in wrong place.  – 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, sub­   division   or   other   local   area,   unless   it appears that such error has in fact occasioned a failure of justice.”

25. A cursory reading of Section 461(l) and Section 462 gives an impression that there is some incongruity. Under Clause (l) of Section 461 if a Magistrate not being empowered by law to try an offender, wrongly tries him, his proceedings shall be void. A proceeding which is void under Section 461 cannot be saved by Section 462. The focus of clause (l) of Section 461 is on the “offender” and not on the “offence”. If clause (l) had used the words “tries an offence” rather than the words “tries an offender”, the consequence might have been different.

26. It is significant to note that Section 460, which lists out nine irregularities that would not vitiate the proceedings, uses the word “offence” in three places  namely  clauses (b), (d) and (e). Section 460 does not use the word “offender” even once.

27. On the contrary Section 461 uses the word ‘offence’ only once, namely in clause (a), but uses the word “offender” twice namely in clauses (l) and (m). Therefore, it is clear that if an offender is tried by a Magistrate not empowered by law in that behalf, his proceedings shall be void under Section 461. Section 462 does not make the principle contained therein to have force notwithstanding anything contained in Section 461.

28. Section   26   of   the   Code   divides   offences   into   two categories namely (i) offences under IPC and (ii) offences under any other special law. Insofar as offences under the IPC are concerned, Clause (a) of Section 26 states that they may be tried by (i) the High Court or (ii) the Court of Session or (iii) any other   Court,   by   which   such   offence   is   shown   in   the   first Schedule to be triable.  In respect of offences under any other law, clause (b) of Section 26 states that they shall be tried by the Court specifically mentioned in such special law. In case the special law is silent about the Court by which it can be tried, then such an offence may be tried either by the High Court or by any other Court by which such offence is shown in the first schedule to be triable.

29. But   Clause   (a)   of   Section   26   makes   the   provisions contained therein, subject to the other provisions of the Code. Therefore, a question arose before this Court in the  State  of Uttar Pradesh  Vs.  Sabir Ali [AIR 1964 SC 1673] as to whether a conviction and punishment handed over by a Magistrate of first class for an offence under the Uttar Pradesh Private Forest Act, 1948 were void, in the light of Section 15(2) of the Special Act. Section 15(2) of Uttar Pradesh Private Forest Act made the offences under the Act triable only by a Magistrate of second or third class. Though the entire trial in that case took place before a Magistrate of second class, he was conferred with the powers of a Magistrate of first class, before he pronounced the Judgment. This Court held that the proceedings were void under Section 530(p) of the Code of Criminal Procedure, 1898 (as it stood at that time).  It is relevant to note that Section 461(l) of the Code of 1973 is in  pari materia  with Section 530(p) of the Code of 1898.

30. What is now clause (a) of Section 26 of the Code of 1973, is what was Section 28 of the Code of 1898. The only difference between the two is that section 28 of the Code of 1898 referred to the eighth column of the second schedule, but section 26(a) of the Code of 1973 refers to the first schedule.

31. Similarly, clause (b) of Section 26 of the Code of 1973 is nothing but what was Section 29 of the Code of 1898.

32. What is significant to note from the Code of 1898 and the Code of 1973 is that the question of jurisdiction dealt with by Sections 28 and 29 of the Code of 1898 and Section 26 of the Code of 1973, is relatable only to the offence and not to the offender. The power of a Court to try an offence is directly governed by Clauses (a) and (b) of Section 26 of the Code of 1973, as it was governed by Sections 28 and 29 of the Code of 1898.

33. In other words, the jurisdiction of a criminal Court is normally relatable to the offence and in some cases, to the offender, such as cases where the offender is a juvenile (section 27) or where the victim is a women [the proviso to clause (a) of section 26]. But Section 461(l) focuses on the offender and not on the offence.

34. The saving clause contained in Section 462 of the Code of 1973 is in pari materia with Section 531 of the Code of 1898. In the light of Section 531 of the Code of 1898, a question arose before   the   Calcutta   High   Court   in  Ramnath   Sardar  Vs. Rekharani Sardar [(1975) Criminal Law Journal 1139] , as to the stage at which an objection to the   territorial   jurisdiction   of   the   court   could   be   raised   and considered.   In   that   case,   the   objection   to   the   territorial jurisdiction   raised   before   a   Magistrate   in   a   petition   for maintenance filed by the wife against the husband, was rejected by the Magistrate both on merits and on the basis of the saving clause in Section 531. But the High Court held that Section 531 would apply only after the decision or finding or order is arrived at by any Magistrate or Court in a wrong jurisdiction and that if any objection to the territorial jurisdiction is taken in any proceeding, it would be the duty of the Magistrate to deal with the same.

35. In Raj Kumari Vijh Vs. Dev Raj Vijh [AIR 1977 SC 1101] , which also arose out of a case filed by the wife for maintenance against the husband,   the   Magistrate   rejected   a   prayer   for   deciding   the question of jurisdiction before recording the evidence. Actually the Magistrate passed an order holding that the question of jurisdiction must await the recording of the evidence on the whole   case.   Ultimately   the   Magistrate   held   that   he   had jurisdiction to entertain the application. One of the reasons why he came to the said conclusion was that in the reply filed by the husband there was no specific denial of the wife’s allegation that the parties last resided together within his jurisdiction. When   the   matter   eventually   reached   this   Court,   this   Court relied   upon   the   decision   in  Purushottam   Das   Dalmia  Vs. State of West Bengal [AIR 1961 SC 1589] to point out that there are two types of jurisdictional   issues   for   a   criminal   Court   namely  (i)  the jurisdiction   with   respect   of   the   power   of   the   Court   to   try particular kinds of offences and (ii) its territorial jurisdiction.

36. It was specifically held by this Court in Raj Kumari Vijh (supra) that the question of jurisdiction with respect to the power of the Court to try particular kinds of offences goes to the root of the matter and that any transgression of the same would make   the   entire   trial   void.   However,   territorial   jurisdiction, according to this Court “is a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular court, the convenience of the accused and the convenience of the witnesses who have to appear before the Court.”

37. After making such a distinction between two different types of jurisdictional issues, this Court concluded in that case, that   where   a   Magistrate   has   the   power   to   try   a   particular offence,   but   the   controversy   relates   solely   to   his   territorial jurisdiction, the case would normally be covered by the saving clause under Section 531 of the Code of 1898 (present Section 462 of the Code of 1973).

38. From the above discussion, it is possible to take a view that the words “tries an offence” are more appropriate than the words “tries an offender” in section 461 (l). This is because, lack of jurisdiction to try an offence cannot be cured by section 462 and hence section 461, logically, could have included the trial of an offence by a Magistrate, not empowered by law to do so, as one of the several items which make the proceedings void. In contrast, the trial of an offender by a court which does not have territorial jurisdiction, can be saved because of section 462, provided there is no other bar for the court to try the said offender (such as in section 27). But Section 461 (l) makes the proceedings of a Magistrate void, if he tried an offender, when not empowered by law to do.

39. But be that as it may, the upshot of the above 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   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.

40. Having taken note of the legal position, let me now come back to the cases on hand.

41. As  seen  from  the pleadings, the  type  of jurisdictional issue,   raised   in   the   cases   on   hand,   is   one   of   territorial jurisdiction, atleast as of now. 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 26 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. Hence the transfer petitions are liable to be dismissed. Accordingly, they are dismissed.

42. However, it is open to both parties to raise the issue of territorial jurisdiction, lead evidence on questions of fact that may fall within the purview of Sections 177 to 184 read with Section 26 of the Code and invite a finding. With the above observations the transfer petitions are dismissed. There will be no order as to costs.