While setting the record straight on a very significant issue, the Kerala High Court has as recently as on September 29, 2022 in an extremely laudable, landmark, learned and latest judgment titled Nishad Mathew v. State of Kerala & Anr. in Crl. Rev. Pet. No. 719 of 2021 against the order dated 08.11.2021 in Crl.R.P. No. 16/2020 of Additional District and Sessions Court-VI, Ernakulam and cited in 2022 LiveLaw (Ker) 511 minced absolutely no words to hold concisely that where the accused has himself conceded the jurisdiction, and the trial has been completed, the question of territorial jurisdiction cannot be raised at the fag end of the trial and transfer of the case on this ground cannot be sought for. The Court in this light, rightly taking note of the precedents observed that as per Section 462 of the Code of Criminal Procedure (Cr.P.C.), it would be clear that when there is no inherent lack of jurisdiction, lack of territorial jurisdiction or ground of irregularity of procedure an order or a sentence awarded by a competent court could not be set aside unless a prejudice is pleaded and proved, which would mean failure of justice. The Single Judge Bench of Hon’ble Mr Justice A Badharudeen further opined that, “As per the settled position of law, the objection regarding question of territorial jurisdiction ought to be raised at the earliest and at any rate, before adducing evidence or examination of witnesses in the Court.” Very rightly so!
At the very outset, this brief, brilliant and balanced judgment authored by the Single Judge Bench of Hon’ble Mr Justice A Badharudeen of Kerala High Court at Ernakulam sets the ball rolling by first and foremost putting forth briefly in para 1 that, “In this revision petition filed under Sections 397 and 401 of Cr.P.C., the revision petitioner, who is the accused in C.C.No.154 of 2016 on the file of the Judicial First Class Magistrate Court (N.I.Act cases), Ernakulam dated 03.12.2019 is put under challenge. The respondents herein are the State of Kerala as well as the original complainant.”
Needless to say, the Bench then states in para 2 of this concise judgment that, “Heard the learned counsel for the revision petitioner as well as the respondents.”
Simply put, the Bench then specifies in para 3 of this progressive judgment that, “I would like to refer the parties in this case as complainant and accused for easy reference.”
On the one hand, the Bench points out in para 4 of this rational judgment that, “It is argued by the learned counsel for the accused/revision petitioner that the Judicial First Class Magistrate Court (N.I. Act cases), Ernakulam (hereinafter will be referred as N.I. Court, Ernakulam for convenience) has no territorial jurisdiction to try the case and when the said contention was raised before the N.I. Court, Ernakulam, the learned Magistrate transferred the case to the Judicial First Class Magistrate Court, Kalamassery (hereinafter will be referred as JFMC, Kalamassery for convenience) on the finding that N.I. Court, Ernakulam had no jurisdiction to entertain the complaint. The said finding is perfectly in order and the Additional Sessions Judge, as per order in Crl.R.P.No.16 of 2020 dated 08.11.2021 interfered in the transfer and thereby, directed the N.I. Court, Ernakulam itself to hear and decide the above case. The said order is illegal, is the submission of the learned counsel for the accused/revision petitioner.”
On the other hand, the Bench then aptly mentions in para 5 of this pragmatic judgment that, “The learned counsel for the complainant would submit that the accused is attempting to trial the proceedings with a view to delay in pronouncement of judgment in this matter.”
To put things in perspective, the Bench then very rightly envisages in para 6 of this refreshing judgment most precisely that, “While considering the rival submissions, it is relevant to refer the history of the case. The complainant is a lady, who lodged prosecution under Section 142 of the Negotiable Instruments Act, on the allegation that the accused herein committed offence under Section 138 of the N.I. Act before the Judicial First Class Magistrate Court-II, Aluva in the year 2015. Thereafter, the case was transferred to N.I. Court, Ernakulam and re-numbered as C.C.No.154 of 2015.”
As it turned out, the Bench then discloses in para 7 of this commendable judgment that, “The accused appeared before the N.I. Court, Ernakulam and conceded the jurisdiction and accordingly, N.I. Court, Ernakulam completed trial.”
As we see, the Bench then observed in para 8 of this robust judgment that, “It is at this juncture, the learned counsel for the accused raised contention before the NI Court, Ernakulam that the said Court has no territorial jurisdiction to entertain the complaint. The N.I. Court, Ernakulam accepted the contention raised by the accused on the finding that the cheque was presented for collection through the account maintained by the complainant at Union Bank of India, Kalamassery branch and therefore, under Section 142(2) of the Negotiable Instruments Act, the jurisdiction is with the Judicial First Class Magistrate Court, Kalamassery.”
As things stand, the Bench then reveals in para 9 of this laudable judgment that, “In this matter, the trial was completed on 25.06.2019 and thereafter, the learned Magistrate transferred the case on the ground of lack of jurisdiction on 03.12.2019.”
Be it noted, the Bench then points out in para 10 of this remarkable judgment that, “The complainant assailed the said transfer by filing revision before the Sessions Court, Ernakulam. The learned Sessions Judge, as per order in Crl.R.P.No.16 of 2020 dated 08.11.2021 appraised the contentions insofar as the transfer is concerned adverting to Section 462 of Cr.P.C. and also relying on three decisions viz., [2012(1) Crimes 443], Arun Ramachandran Nair v. State of Kerala and Another, [1987(2) SCC 74], State of Karnataka v.Kuppuswamy Gounder and [2017(3) SCC 528], Abhijit Pawar v. Hemant Madhukar Nimbalkar and another.”
It would be instructive to note that the Bench then hastens to add in para 11 of this brilliant judgment that, “In this context, it is apposite to refer Section 462 of Cr.P.C. dealing with proceedings in wrong place. The same provides as under:
“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.””
Most significantly, the Bench then encapsulates in para 12 what constitutes the real backbone of this notable judgment wherein it is postulated that, “Reading the decisions referred by the learned Additional Sessions Judge, it is crystal clear that, when there is no inherent lack of jurisdiction, lack of territorial jurisdiction or ground of irregularity of procedure an order or a sentence awarded by a competent court could not be set aside unless a prejudice is pleaded and proved, which would mean failure of justice. It is also the settled position that the objection regarding question of territorial jurisdiction must be raised, at the earliest at any rate, before adducing evidence/examination of witnesses in the Court. In the case on hand, the accused conceded the jurisdiction of the N.I.Court, Ernakulam and accordingly, trial was completed and the accused raised question of territorial jurisdiction at the fagant. Since the law is settled that, if the Court has otherwise jurisdiction or the Court does not lack inherent jurisdiction, the Court has the power to dispose of the matter wherein, the evidence already recorded, since the question of jurisdiction was not raised before start of trial.”
As a corollary, the Bench then directs in para 13 of this learned judgment that, “In this view of the matter, C.C.No.154 of 2016 of the N.I. Court, Ernakulam shall be disposed of by the said Court and the transfer ordered by the said court to JFCM, Kalamassery is not necessary.”
Finally, the Bench then concludes by holding in para 14 of this noteworthy judgment that, “In view of the matter, the learned Sessions Judge set aside the order of transfer, with direction to the of the N.I. Court, Ernakulam to hear and dispose of the matter within a period of three months. I find no illegality in the order and therefore, the order impugned herein is liable to be confirmed.
In view of the facts discussed, there is no merit in this petition. Accordingly, this revision petition is dismissed, directing the Judicial First Class Magistrate Court (NI Act), Ernakulam to deliver judgment, after hearing both sides, within a period of one month from the date of receipt or production of a copy of this order.”
All said and done, the inescapable conclusion that can be drawn from this most refreshing, robust, rational and remarkable judgment is that where the accused has himself conceded the jurisdiction and trial has been completed then in such cases the question of territorial jurisdiction cannot be raised at the fag end of the trial and transfer of the case on this ground cannot be sought for. It definitely goes without saying and merits no reiteration that all the Courts must pay heed to what the Kerala High Court has laid down so elegantly, eloquently and effectively in this leading case. No denying it!
Sanjeev Sirohi