ORDER
S.P. Talukdar, J.
1. Four applications under Sections 401 and 482 of the Code of Criminal Procedure, 1973 have been filed being numbered as CRR 1110 of 2002, CRR 1111 of 2002, CRR 1112 of 2002 and CRR 1114 of 2002.
2. In all the said applications prayer has been made on behalf of the respective petitioners for quashing of proceeding in case No. 63 of 2000 (T.R. No. 33 of 2002) pending before the learned Metropolitan Magistrate, 14th Court, at Calcutta and all orders passed therein including the order dated 19th April, 2002 whereby the petitioner’s application for dismissal of the complaint for lack of Territorial jurisdiction was dismissed.
3. Similar points of facts and laws being involved and as all the said applications are directed against the same impugned order of the learned Metropolitan Magistrate, 14th Court, Calcutta, the said applications have been heard at a time.
4. Grievances of the petitioners may briefly be stated as follows :–
5. In or about the year 1941, Mr. Ganga Bishan alias Haldiram started the firm known as Chand Mal Ganga Bishan also trading as Haldiram Bhujiawala at Bikaner. The constitution of the firm was changed from that of proprietorship to partnership from time to time. On 31st October, 1969, the partners of the firm were Mr. Ganga Bishan, Mr. Mool Chand, Mr. Shiv Kishan and Smt. Kamla Devi trading as M/s. Chand Mal Ganga Bishan. Mr. Mool Chand is the son of Mr. Ganga Bishan and Mr. Shiv Kishan is the grandson of Mr. Ganga Bishan. Smt. Kamla Devi (wife of Rameshwar Lal) is the daughter-in-law of Mr. Ganga Bishan. On 16th November, 1974, the said partnership firm was dissolved by a deed of dissolution. The terms of deed of dissolution dated 16th November, 1974 were acted upon by the parties till the year 1991. The factum of dissolution of the firm, M/s. Chand Mal Ganga Bishan was admitted and established in Sales Tax Case bearing Writ Petition No. 2411/86 decided by the High Court at Rajasthan. In the year 1985, the Registrar of Trade Marks, New Delhi made changes in the Register of Trade Marks on the basis of deed of dissolution dated 16th November, 1974. In the year 1991, an attempt was made by the legal heirs of Mr. Rameshwar Lal to expand the use of the Trade Mark “Haldiram” by opening a showroom at Delhi in breach of the terms of deed of dissolution dated 16-11-1974. Consequently, a suit for permanent injunction was filed by and on behalf of the petitioners before the District Judge, Delhi. An Ex. Parte order of interim injunction was passed in the said suit. It was subsequently transferred to the High Court of Delhi. The factum of execution of the deed of dissolution dated 16-11-1974 was admitted. The High Court of Delhi passed an order on 12th May, 1999 granting an order of interim injunction in favour of the petitioners and the defendants therein were restrained from using the impugned mark during the pendency of the suit. An appeal had been preferred against the said order dated 12-5-1999 and it had been admitted by the Division Bench of High Court but there had been no order for staying of operation of the order dated 12-5-1999. On the other hand the legal heirs of Mr. Rameshwar Lal filed two suits in Calcutta, one before the High Court and the other before the City Civil Court. In the said proceeding execution of deed of dissolution dated 16-11-1974 was admitted. In the year 1991, a Rectification Petition was filed before the Registrar of Trade Marks seeking cancellation of registered Trade Mark No. 330375 which was alleged to have been registered in the names of Mr. Rameshwar Lal and Mr. Prabhu Shankar Agarwal. The said Rectification Petition was, however, dismissed by an order dated 23rd April, 1992 on the ground of lack of jurisdiction. An appeal against the said order is pending before the High Court, Calcutta.
6. After passing of the Order dated 12th May, 1999 and a confirmation thereof by the Division Bench by Order dated 25th May, 1999, Smt. Kamla Devi filed a Civil Suit No. 386 of 1999 before the High Court of Calcutta seeking dissolution of the firm and praying for other reliefs as well. There, for the first time it was alleged that the deed of dissolution dated 16-11-1974 was forged and fabricated. In the said suit, the High Court of Calcutta vide Orders dated 8-7-1999, 16-7-1999, 23-7-1999 and 30-7-1999 directed the petitioner to produce the deed of dissolution. In pursuance of the said order passed by the Hon’ble Court and in compliance thereof, the deed of dissolution was produced. The Hon’ble High Court returned the document to the petitioner after allowing Smt. Kamla Devi to have the same photocopied. Smt. Kamla Devi then moved an application under Section 340 of Criminal Procedure Code before the High Court of Calcutta for initiating action against the petitioner being G.A. No. 3398/1999. During pendency of the application under Section 340 of Cr. P.C. Smt. Kamla Devi filed a complaint before the learned Court of Metropolitan Magistrate at Calcutta alleging commission of offences punishable under Sections 465, 467, 468 and 471 read with Section 120-B of the Indian Penal Code. Learned Court of Magistrate took cognizance and issued the process against the petitioner. Aggrieved by the order passed by the learned Magistrate, the petitioner filed an application under Section 482 of the Cr. P.C. being C.R.R. No. 1421 of 2000 for quashing the proceeding inter alia on the ground that initiating of the criminal proceeding was an abuse of the process of law. The Hon’ble High Court of Calcutta vide Order dated 5th February, 2001 quashed the criminal proceeding on the ground that continuation of criminal proceeding when the validity of the document was being tested in a civil proceeding was not proper in view of the law laid down by the Hon’ble Supreme Court. A special leave petition was preferred before the Supreme Court of India being S.L.P. No. 1547 of 2001. The Hon’ble Supreme Court by its order dated 17th October, 2001 set aside the order passed by the High Court holding that pendency of a civil suit was not a bar for the continuation of criminal proceeding. The Hon’ble Supreme Court restored the order of the learned Magistrate with a direction to proceed with the trial of the case in accordance with the provisions of law and decide the same on merits. The petitioner, thereafter, appeared before the Court of learned Magistrate, Calcutta and at the first instance moved an application challenging the territorial jurisdiction of the learned Magistrate to try the case. Petitioner further submitted in the said application that the allegations made in the complaint, even if taken on the face value, do not confer the jurisdiction upon the Court of Metropolitan Magistrate. Calcutta as none of the offences complained of were wholly or partly committed within its jurisdiction.
7. Learned Magistrate without taking into consideration the grounds taken by the petitioner in the application and the judgments relied upon at the time of hearing, passed an order dated 19th April, 2002 dismissing petitioner’s application challenging maintainability on the ground of lack of territorial jurisdiction to try the case.
8. Being aggrieved by and dissatisfied with the continuation of the impugned proceedings being Case No. 63 of 2000 (T.R. No. 33 of 2002) pending before the learned Metropolitan Magistrate, Calcutta and orders passed therein including the order dated 19th April, 2002, the petitioner filed the instant application praying for quashing of the Criminal Proceeding. Thus, to sum up, Smt. Kamla Devi Agarwal, as complainant, filed a complaint before the learned Court of Additional Chief Metropolitan Magistrate, Calcutta against four accused persons under Section 465/467/468/471/120-B of the Indian Penal Code. The Learned Court of Magistrate after taking cognizance examined Smt. Kamla Devi Agarwal and three other witnesses under Section 200 of the Criminal Procedure Code and was satisfied that a prima facie case under Section 465/ 467/471/120-B of Indian Penal Code had been made out and thereafter, issued summons upon all the four accused persons. The accused persons preferred an application under Section 482 of the Cr. P.C. being numbered as C.R.R. No. 1421 of 2000 before the Hon’ble High Court at Calcutta. The Hon’ble High Court, Calcutta by order dated 5-2-2001 quashed the criminal proceeding. Aggrieved by the said order, a special writ petition was filed being S.L.P. (Cri. ) 1547 of 2001 before the Hon’ble Supreme Court of India and by order dated 17-10-2001, the Hon’ble Supreme Court set aside the order of quashing of the proceedings as made by the High Court, Calcutta and directed the Court of Metropolitan Magistrate to proceed with the trial of the case in accordance with the provisions of law and decide the same on merits.
9. The accused persons, as petitioners, thereafter filed a further application before the learned Trial Court praying for revoking of the order of taking cognizance and dismissal of the complaint. Learned Magistrate by order dated 19th April, 2002 rejected the said application with the observation that the Court of Metropolitan Magistrate has the territorial jurisdiction to try the case and, as such, the petition that the case is not maintainable for lack of territorial jurisdiction was rejected.
10. The Supreme Court directed proceeding in accordance with laws and to decide the case on merits. Mr. Sekhar Basu contended that such direction did not prevent the learned Court of Metropolitan Magistrate to appreciate that the Court concerned did not have territorial jurisdiction to proceed with the case as the offences allegedly committed, assuming the same to be true, did not take place within the State of West Bengal. In this context reference was made to the decision in the case of Satya Prakash v. State of U.P., reported in 2000 Cri LJ 4599 : (2000 AIR SCW 3633). Learned Counsel submitted that, the jurisdiction of every Criminal Court to try a particular offence is derived from the statute, either from the statute which creates the Court or from the statute which defines the offence (ref. : Jhakar Abir v. Province of Bihar, reported in AIR 1945 Patna 98 : (1945 (46) Cri LJ 399) (FB).
11. Relying upon the observations made by the single Bench of this Court in the case of Bijoyanand Patnaik v. Mrs. K.A.A. Brinnand, it was submitted that Section 177 of Cr. P.C. apparently adopts the Common Law of England that all crimes are local and justiciable only by the local Courts within whose jurisdiction they are committed. The venue of inquiry or trial of a case is primarily to be determined by the averments made in the complaint.
12. Attention was drawn to the decision in the case of Abhay Lalan v. Yogendra Madhavlal, reported in 1981 Cri LJ 1667 (Kerala) in support of the contention that nothing in the Code shall be determined to limit or affect the inherent powers of the High Court under Section 482 of Cr. P.C. There can be no dispute as to the fact that it will be an abuse of the process of the Court if question of jurisdiction is not settled in spite of being raised and if the learned Court of Magistrate is allowed to proceed with the case without having territorial jurisdiction.
13. Learned Counsel, Mr. Basu, has referred to the decision in the case of Ramnath Sardar v. Rekharani Sardar, reported in 1975 Cri LJ 1139 (Cal) but it does not apply to the facts and circumstances of the present case.
14. On the other hand Mr. D. Basu Mallick, learned counsel for the Opposite Party submitted that the application challenging maintainability of the case had no merit worth consideration. According to Mr. Basu Mallick, it is admitted position from the petition of complaint and the order passed by the learned Magistrate that the proceeding was initiated under Section 465/ 467/468/471/120-B of the IPC for producing a forged document in the Hon’ble Court at Calcutta. He further submitted that a Court has jurisdiction if a person manufactures a document committing forgery in any place and uses the same in other State or places.
15. Section 177 of the Cr. P.C. reads as follows :–
“177. Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.”
The word “ordinarily” means “except in the cases provided hereinafter to the contrary.”
16. Referring to the decision in the case of Mahipal v. The State of Haryana, reported in 1997 Cri LJ 43, it was submitted by learned Counsel for the petitioners that Section 177 refers to the place of trial as the area within which offence is committed.
17. Section 178 of Criminal Procedure Code reads as follows :–
“178. (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 a continuing one, and continues to be committed in more local area 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.”
18. According to learned Counsel for the Opposite Party Section 178 of the Criminal Procedure Code empowers the Court of Metropolitan Magistrate to exercise jurisdiction in connection with a proceeding where a forged document is used.
19. It was submitted on behalf of the petitioners that Section 465 and Section 467 were purported (sic) to have been committed outside the jurisdiction of the Metropolitan Magistrate Court, Calcutta. Referring to Section 471 of Indian Penal Code it was submitted that allegedly forged document was produced in Court in response to a direction and such production was not voluntary and as such, would not come within the mischief of Section 471 of Indian Penal Code.
20. In this context I would like to hold that the O.P. being not a signatory to the document allegedly forged, she could not have any direct knowledge as to where it was executed. But the O.P. has initiated the case on the ground that such forged document had been used in the High Court, Calcutta as well as other Forums. It also cannot be denied at this stage that how far use of the document was voluntary cannot be decided while testing territorial jurisdiction.
21. It appears that a Civil case was filed by the present O.P. in the High Court, Calcutta being C.S./Suit No. 386 of 1999 and in the said case the leave under Clause 12 as granted by the Court as on 8-7-1999 or on any other date earlier or subsequent thereto was revoked.
22. Attention of this Court has been drawn to certain observations made by the Hon’ble single Judge, Amitava Lala, J. in the said judgment. It was observed that in the said case admittedly the particulars of fraud as given in paragraph 23 describing that such part arose outside the jurisdiction of this Court under paragraph 34 of the plaint itself. The submission of learned Counsel for the O.P. that for the purpose of jurisdiction, the observations of the Civil Court do not necessarily override Section 178 of Cr. P.C. Learned Counsel for the petitioners, however, strongly argued that judicial discipline required that such observations of the High Court should have been taken into consideration by the learned Metropolitan Magistrate. A close scrutiny of the impugned order, however, reveals that learned Metropolitan Magistrate took that aspect into consideration but was guided more by the direction of the Supreme Court in connection with the Criminal Appeal being No. 1059 of 2001. Learned Metropolitan Magistrate further observed that at page 54 of the affidavit-in-reply filed by the present petitioners before the Hon’ble Supreme Court, point of jurisdiction was agitated. Learned Magistrate further observed as follows :–
“It appears from para 29 of the complaint that accds. filed petition before the Trade Mark Authorities at Calcutta praying for declaration of the jurisdiction for doing business to all over India barring West Bengal on strength of dissolution deed.
So para 113 of affidavit of (before) the Hon’ble Supreme Court and para 29 at page 19 of the complaint comes under the purview of administrative proceedings on the basis of the deed of dissolution dt. 16-11-74. If this document is used to get some benefit (out of this deed), the territorial jurisdiction of this Court comes into play.”
23. After giving due regard to all these aspects I find it different to agree with the views of the learned Counsel for the petitioners that the Court of Metropolitan Magistrate cannot have any territorial Jurisdiction in respect of the instant case.
24. Mr. Basu Mallick, appearing for the Opposite Party argued that identical prayer was made earlier and single Bench of this High Court, Calcutta allowed the same but the said order was set aside by the Supreme Court with a direction to decide in accordance with law. He further added that an issue, already settled, cannot be allowed to be reopened. It was further stated that a review application as against the said order of Supreme Court was filed and the same was rejected as well. In the backdrop of such developments and in the facts and circumstances as stated above, the grievance relating to lack of territorial jurisdiction does not seem to have any legs to stand upon.
25. Next, it was argued the decision of the Civil Court is binding on Criminal Court. (Ref. Mr. Basu further contended that when the question validity of a document is subjudice, Criminal Prosecution on the allegation of the document being a forged one cannot be instituted. In this context he referred to the decision in the case of Sardool Singh v. Smt. Nasib Kaur, reported in 1987 SCC (Cri) 672. Referring to the decision in the case of T. Chavan v. M.Y. Patil, reported in 2001 SCC (Cri) 430 : (2001 Cri LJ 1164) it was submitted by Mr. Basu that in the interest of justice and for a fair trial the proceeding in the Criminal case should remain suspended till the proceeding pending before any Civil Court is disposed. Reference was also made to the decision in the case of Commr. of Income-tax, Mumbai v. Bhupen Champak Lal Dalai, in support of the contention that the instant criminal case should not be allowed to proceed in view of pendency of a Civil Suit over the same matter.
26. Significantly enough, learned Counsel, Mr. Basu also placed an order of the Supreme Court in the case of Man Mohan Lal and others in connection with the Special Leave to Appeal (Cri.) No. 2654 of 2001 wherein the Hon’ble Supreme Court ordered stay of further proceedings of the criminal case till disposal of the Civil Suit. Learned Counsel, Mr. Basu, further pointed out that petitioners have equal right to get justice as the petitioners in the case just mentioned above. He submitted that any unequal treatment would be in violation of Article 14 of the Constitution. There may be force in such contention but the fact remains that the Supreme Court has given specific direction to the learned Court of Metropolitan Magistrate to decide the case and a review petition against the said order had also been dismissed.
27. In such circumstances, there was little further scope for the learned Metropolitan Magistrate and he was perfectly justified in deciding to proceed with the case. Referring to the decision in the Case of Dr. S. Dutt v. State of U.P., it was submitted that in absence of voluntary use of a forged document, Section 471 of Indian Penal Code could not be attracted. It has already been discussed that this issue can very well be kept open for the learned trial Court to decide at the appropriate stage.
28. It was further submitted that a decision is no authority “for a proposition that may seem to follow logically from it.” (Ref. 1990 Cal Cr LR 56 : (1991 Cri LJ 828) Mr. Basu submitted that a decision is only an authority for what it actually decides. It was observed in the decision in the case of State of Orissa v. Sudhanshu Sekhar Misra, “what is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it.” No doubt, learned Counsel, Mr. Basu wonderfully analysed the various intricate issues involved in the present controversy. But the first point i.e. whether a criminal case can proceed during pendency of a civil suit involving the same issue cannot unfortunately be re-opened by the learned Metropolitan Magistrate in view of clear direction of the Supreme Court in connection with the specific case pending before the learned Trial Court. Applicability of Section 471 of IPC where the production of an allegedly forged document was not voluntary can only be decided by the learned trial Court at the appropriate stage. Grievance ventilated in this regard is premature. The territorial jurisdiction is to. be decided on examination of the averments made in the petition of the complaint filed before the learned Court and the statements made by the complainant and her witnesses on solemn affirmation as well as the documents produced before the Court, if any at all.
29. Considering this aspect of the matter and in view of the order of the Hon’ble Supreme Court in connection with the specific case, I am of the view that learned Metropolitan Magistrate was perfectly justified in dismissing the applications filed before it. Moreover, there does not appear to be any impropriety or illegality in the impugned order which justifies interference by this Court.
30. All the four applications as referred to earlier, thus, stand dismissed on contest and the impugned order dated 19-4-2002 passed by the learned 14th Court of Metropolitan Magistrate, Calcutta, stands affirmed.
31. Send a copy of this judgment along with the L.C.R. if any, to the Learned Trial Court for information and necessary action.
Urgent xerox certified copy, if applied for, be given to the parties.
32. Later : Prayer is made for staying of operation of the judgment passed this day i.e. on 10-10-2002. After hearing the learned Counsel for both the parties, I find no rational justification for allowing such prayer and the prayer stands rejected.