MANU/MH/1438/2010

Equivalent Citation: 2011(3)MhLj407

IN THE HIGH COURT OF BOMBAY
Criminal Writ Petition No. 2456 of 2008
Decided On: 20.09.2010
Appellants: Trade-Wings Limited, a public limited company incorporated under the
Companies Act, 1956 and Ors.
Vs.
Respondent: State of Maharashtra, through the office of the Government Pleader, The
Ld. Addl. Chief Metropolitan Magistrate and Dwarkanath Boppanna, Director of Tulip
Star Leisure and Health Resorts, a Company incorporated Under the Companies Act,
1956
[Alongwith Criminal Writ Petition No. 2146 of 2009]
Hon'ble Judges/Coram:
A.M. Khanwilkar and U.D. Salvi, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Haresh Jagtiani, Sr. Counsel, Tejas H. Bhatt, Siddhesh S.
Bhole, Natasha Buhariwala and Nisha Srinivasan, Advs., i/b., Haresh Jagtiani and Associates
For Respondents/Defendant: S.V. Gajare, A.P.P., Peter Lobo and Rajesh Mirchandani, Advs. for
Respondent No. 3
Subject: Criminal
Acts/Rules/Orders:
Indian Penal Code (IPC) - Section 34, Indian Penal Code (IPC) - Section 110, Indian Penal Code
(IPC) - Section 120B, Indian Penal Code (IPC) - Section 409, Indian Penal Code (IPC) - Section
468, Indian Penal Code (IPC) - Section 471, Indian Penal Code (IPC) - Section 499, Indian
Penal Code (IPC) - Section 500; Code of Criminal Procedure, 1973 (CrPC) - Section 177, Code
of Criminal Procedure, 1973 (CrPC) - Section 178, Code of Criminal Procedure, 1973 (CrPC) -
Section 179, Code of Criminal Procedure, 1973 (CrPC) - Section 182(1), Code of Criminal
Procedure, 1973 (CrPC) - Section 190, Code of Criminal Procedure, 1973 (CrPC) - Section 202,
Code of Criminal Procedure, 1973 (CrPC) - Section 482; Information Technology Act, 2000 -
Section 66, Information Technology Act, 2000 - Section 85; Negotiable Instruments Act, 1881 -
Section 138; Constitution of India - Article 21, Constitution of India - Article 226, Constitution of
India - Article 226(2), Constitution of India - Article 227
Cases Referred:
Navinchandra N. Majithia v. State of Maharashtra and Ors. MANU/SC/0549/2000 : (2000) 7
SCC 640; Om Prakash Srivastava v. Union of India (UOI) and Anr. 2006 (2) UJ (SC) 953; The
First Custodian Fund (India) Ltd. v. The Nedungadi Bank Ltd. MANU/MH/0379/2007 : 2007 (6)
Mh.L.J. 295; Motilal v. State through Smt. Sagarwati MANU/UP/0381/1952 : AIR 1952 All.963;
Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd. and Ors. MANU/SC/8067/2006 : (2006) 3
SCC 658; Surya Dev Rai v. Ram Chander Rai and Ors. MANU/SC/0559/2003 : (2003) 6 SCC
675; Augustine v. Omprakash Nanakram MANU/KE/0217/2001 : (2001) 2 KLT 638
Citing Reference:



2
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5

Case Note:
Criminal - Territorial Jurisdiction Maintainability - Additional Chief Metropolitan
Magistrates issued process against Petitioner for offences under Sections 409, 468,
471, 120B and 34 of the Indian Penal Code - Hence, this Petition - Whether, cause of
action for which complaint had been filed was within territorial jurisdiction of Court -
Held, case of respective complainants was that alleged publication was done at
Hyderabad and was brought to their notice at Hyderabad, within jurisdiction of
concerned Metropolitan Magistrate at Hyderabad - Further, offence was committed at
Hyderabad with publication of offending article as a result of which, Criminal Court at
Hyderabad alone would have jurisdiction to try alleged offence committed within its
jurisdiction and that Court having taken cognizance of offence of defamation by
issuing process in said complaint - Publication was made at other places would not
militate against cause of action for instituting complaint at that place and more so,
when complaint and notice made at such place - Offence could be inquired tried by
Court within whose local jurisdiction incidence aroused - Facts and events could not
be integral part of cause of action for which complaint had been filed by private
Respondents - Thus, offence was with publication of offending article as result of
which Criminal Court had jurisdiction to try alleged offence and taken cognizance by
issuing process in complaint within its jurisdiction - Petitions disposed of

Ratio Decidendi

"Court shall not entertain matter beyond its jurisdiction prescribed in statute."
Industry: Transport and Logistics
JUDGMENT
A.M. Khanwilkar, J.
1. In both these Petitions, preliminary objection regarding maintainability of Writ Petitions has
been raised on behalf of the private Respondents. According to the private Respondents, Writ
Petition under Article 226 of the Constitution of India to question the validity of order issuing
process, passed by the Criminal Court of some other State which is not subordinate to this
Court, cannot be entertained by this Court. Besides, even though the Petitions instituted by the
Petitioners are under Article 226 of the Constitution of India, the grounds agitated therein are in
the nature of invoking supervisory jurisdiction of this Court and since the trial Court which has
issued process is outside the territorial jurisdiction of this Court, this Court should be loath in
exercising writ jurisdiction.
2. The background in which both these Petitions have been instituted in this Court, in brief, are
as follows:
The renumbered Respondent No. 2 in the respective Petitions have filed complaints
before the Court of the II Ird Additional Chief Metropolitan Magistrate at Hyderabad
and XVI Ith Additional Chief Metropolitan Magistrate being CC No. 1178/2008 and
CC No. 1577/2008 respectively. The first complaint is filed by one Dwarkanath
Boppanna s/o Late Shri Dr. B.V. Ranga Rao Garu Respondent No. 2 in W.P. No.
2456 of 2008). Whereas, the latter complaint has been filed by Mrs. Usha
Boppanna-wife of above named Dwarkanath-(Respondent No. 2 in W.P. No. 2146 of
2008). According to the Petitioners, both these complaints have been filed on the
same day as a counter blast to the original complaint filed by Petitioner No. 2 in the
Court at Mumbai against the above named Boppanna Dwarkanath and five others
for offence under Section 409, 468, 471 r/w 34 and 120B of I.P.C. Be that as it
may, in the former complaint filed by said Dwarkanath, it is alleged that the
Petitioners herein have committed offence of defamation by publication of malicious
Discussed

Mentioned

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imputation of print by electronic message/mail dated 5th June 2007. The contents
of the said mail read thus:
The Bogmallo Beach Resort Goa (Bogmallo) owned by Trade Wings
Hotels Ltd. (TWHL) was under the management of Mr. Ajit Kerkar,
Chairman/Director of Tulip Hotel Pvt. Ltd. during the period 2000-2006.
During his tenure as Director, Mr. Kerkar through his group company
M/s. Tulip Star Leisure & Health Resorts has unauthorizedly sold Time
Shares of Bogmollo, without knowledge of TWHL. Mr. Kerkar has also
siphoned off the revenue generated from the said sale of Time Shares.
Consequently, after having discovered the illegal acts of Mr. Kerkar,
TWHL vide their Advocate's letter dated 27th January 2007 have
terminated, effective 1st November 2006, all the understandings and
arrangements with Mr. Kerkar and have also initiated criminal
proceedings in the Additional Chief Metropolitan Magistrates Esplanade
Court, Mumbai being 14/M of 2007 where process has been issued
against Mr. Kerkar and his co-conspirators under Sections 409, 468,
471, 120B and 34 of the Indian Penal Code for Trade Wings Hotels Ltd.
In the said complaint, it is prayed that cognizance of the case be taken against the Petitioners
herein under Section 500 r/w Sections 499, 110, 34, 120B of the Indian Penal Code (hereinafter
referred to as 'the I.P.C.') and to try the Petitioners in accordance with law. The said complaint
has been filed on the assertion that the private Respondent (renumbered Respondent No. 2) is
one of the Directors of M/s. Tulip Stars Hotels Ltd., a public Limited Company. In that capacity,
he was aggrieved by the malicious publication by the Petitioners referred to earlier. It is his
case that on account of the alleged publication, the business prospects of the Company of which
he is the Director was likely to be affected and it would lower the prestige and reputation of the
said Company in the eyes of public. In the complaint, it is asserted that the alleged malicious
publication was brought to his notice by one Mr. Arup Sen in Hyderabad and after due
verification, when it was revealed that such publication was in fact issued by the Petitioners, the
present complaint has been filed.
3. For considering the controversy on hand, it may be useful to refer to Paragraphs 22, 23 and
VIII of the complaint which gives justification for invoking criminal action before the Court at
Hyderabad, although the alleged malicious material was allegedly sent from Mumbai by the
Petitioners. The said Paragraphs read thus:
22. Mr. Arup Sen residing at Mumbai and a Travel Agent has offices at Mumbai and
Hyderabad enquired from the Complainant about the truthfulness of the electronic
sms/e-mail dated 5th June 2006 issued by accused No. 1 and its officers and they
also questioned the truth and integrity of the complainant's company in view of this
email.
23. The Complainant is having his Office-Cum-Residence at Plot No. 524, Road No.
27, Jubilee Hills, Hyderabad-500 033 and was asked about the said defamed note
dated 05-06-2007 at Hyderabad and hence the enquiry regarding the defamatory
note dated 05-06-2007, the complainant's Company and its Director were defamed
by the accused residing at Mumbai and travel agent having a business at Hyderabad
as well. Hence this Hon'ble Court has jurisdiction to try and entertain the present
complaint. The complaint has been filed within a period of limitation.
VIII. JURISDICTION: The complainant happened to be the resident of H. No. 524,
Road No. 27, Jubilee Hills, Hyderabad-33 and got access to the internet in which the
defamatory material was circulated through electronic message / mail dated 5th
June 2007 was noticed. The said address of the complainant falls very much well
within the territorial limits of Police Station, Jubilee Hills, which happens to fall
within the jurisdictional limits of this Hon'ble Court; hence the said complaint can be
tried by this Hon'ble Court.
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4. In the latter complaint which is filed by the wife of Dwarkanath Boppanna, the basis for the
complaint is the same alleged publication sent by e-mail. Even in this complaint, the private
Respondent (renumbered Respondent No. 2) asserts that she is a share holder of Tulip Star
Hotel Ltd., a Public Limited Company holding a substantially large number of equity share
capital. She asserts that she is aggrieved with the defamatory statements made against the
Head of an otherwise stable Corporate Body of the listed group of companies, which would
culminate in having adverse impact on the shares of her Company in the share market. This
complainant claims that the alleged malicious e-mail dated 5th June 2007 was published and
circulated within the jurisdiction of the Court at Hyderabad and the same was brought to her
notice by innumerable persons who made inquiry with the complainant about the truthfulness of
the said electronic e-mail dated 5th June 2007 issued by accused No. 1 and its Officers. For
justifying the initiation of complaint before the Court at Hyderabad, the complainant has
asserted in Paragraph 21 and VIII of the complaint as follows:
21. The complainant is residing at Plot No. 524, Road No. 27, Jubilee Hills,
Hyderabad - 500 033 and was asked about the said defamed note dated
05/06/2007 at Hyderabad and hence the enquiry regarding the defamatory note
dated 05/06/2007 was made with the company and its Director(s) were defamed by
the accused residing at Mumbai and travel agent having a business at Hyderabad as
well. Hence this Hon'ble Court has jurisdiction to try and entertain the present
complaint. The complaint has been filed within a period of limitation.
VIII . JURISDICTION: The complainant happened to be the resident of H. No. 524,
Road No. 27, Jubilee Hills, Hyderabad-33 and got access to the internet in which the
defamatory material was circulated through electronic message / mail dated 5th
June 2007 was noticed. The said address of the complainant falls very much well
within the territorial limits of Police Station, Jubilee Hills, which happens to fall
within the jurisdiction limits of this Hon'ble Court hence the said complaint can be
tried by this Hon'ble Court.
5. After the above said complaints were filed, the complainants in respective complaints
submitted their sworn statement before the Magistrate. The Magistrate after considering the
said sworn statement of the complainants and recording the same, issued process in the
respective complaints. In the former complaint process was issued on 19th June 2008. The said
order reads thus:
Sworn Statement of Complainant is recorded. Taken on file Under Section 500, 499,
110, 120B & 34 IPC against A1 to A6. Issue SS to A1 to A6 through Court & RP. Call
on 27/8/08.
Sd/-19/6.
6. In the second complaint, the Magistrate issued process vide order dated 14th August 2008
after considering the sworn statement. The order issuing process reads thus:
Complainant present. Sworn Statement recorded. Taken cognizance against A1 to
A6 under Sections 500, 499, 110, 120B and 34 of the Indian Penal Code and
Section 85 r/w Section 66 of Information Technology Act.
Issue summons to A1 to A6 through Court and by R.P. Call on 27-8-2008.
7. As soon as the order of process was issued on 19th June 2008 in CC No. 1178/2008 by the
concerned Magistrate, the Petitioners rushed to this Court by way of Writ Petition under Article
226 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure, 1973
(hereinafter referred to as 'the Cr.P.C.'), on 14th November 2008 being Criminal Writ Petition
No. 2456 of 2008, challenging the order of the Magistrate at Hyderabad issuing process dated
19th June 2008. Initially, the Petitioners had impleaded the Additional Chief Metropolitan
Magistrate, II Ird Court at Hyderabad, Andhra Pradesh as Respondent No. 2 but later on deleted
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the said Respondent from the array of parties on the basis of order dated 29th June 2010.
However, during the course of hearing before us, the Counsel appearing for the Petitioners, in
all fairness, accepted that in absence of the said Respondent, it may be doubtful as to whether
the relief as claimed in the nature of Writ of Certiorari can be taken to its logical end. Therefore,
the learned Counsel appearing for the Petitioners asked for leave to amend the Petition so as to
once again implead the Additional Chief Metropolitan Magistrate as party Respondent to the
Writ Petition for full, complete and effectual adjudication of the present proceedings. That oral
request was accepted and we proceeded with the hearing of the matter on the assumption that
the concerned Metropolitan Magistrate is impleaded as Respondent No. 3 in the present Writ
Petition.
8. Similar situation obtains insofar as the latter complaint filed by the Respondent (renumbered
Respondent No. 2 in the companion Writ Petition). As soon as the process was issued in the
said complaint No. CC/1577/2008, the Petitioners rushed to this Court by way of Writ Petition
No. 2146/2009 which was filed on 7th August 2009. Even in this Writ Petition, initially, the
Petitioners had impleaded the concerned Metropolitan Magistrate as party Respondent but was
deleted in terms of the order of the Court. As per oral request, we proceeded with the hearing
on assumption that the concerned Magistrate has once again been impleaded as Respondent
No. 3 even in this Petition. Counsel for the Petitioners assured to carry out necessary
amendment in both these Petitions in this behalf.
9. Insofar as the former Writ Petition is concerned, the same was taken up for hearing on 8th
December 2008 when after hearing the parties, the Court passed the following order:
1. Heard.
2. The main point involved so far as this petition is concerned is whether the
respondent-complainant is aggrieved person and since the facts are disputed the
respondent-complainant is hereby directed to file short affidavit limited to the point
as to whether he is a person aggrieved by the particular publication. Complainant-
respondent is further called upon to state on oath and/or by documentary evidence
to establish that he is the Director of M/s. Tulip Star Leisure & Health Resorts Ltd.
on the date when he filed the complaint before the Chief Metropolitan Magistrate,
Hyderabad. S.O. to 10-12-2008.
10. That Writ Petition was once again listed on 15th December 2008 when the same was
eventually admitted, in the circumstances mentioned in the said order. The order dated 15th
December 2008 reads thus:
1. In this matter we have recorded the main controversy which we have to
adjudicate by order dated 8th December, 2008. Thereafter we have noticed that the
affidavit which was filed by the respondent was not satisfactory and it was vague.
Therefore, today the matter was fixed for the respondent to produce evidence on
record showing that he is the Director of a particular Company on the date of filing
of the complaint. Today the learned Counsel who is conducting the matter is absent.
The adjournment is being sought on the ground that he is not available as he has
left for USA. When the matter is fixed on board and if the respondent's Counsel is
not available for whatever reasons, the respondent could have made alternate
arrangement and at least have produced the necessary documents which the
respondent relies in support of the complaint and that he is aggrieved person.
These documents should have come before this Court. Therefore, from the conduct
of the respondent we are satisfied that the respondent is interested in protraction
the matter instead of getting if adjudicated.
2. Therefore, Rule.
3. Interim relief in terms of prayer Clause (b).
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11. Insofar as the latter Writ Petition is concerned, even though it was intended to be heard
along with former Writ Petition, for some reason, formal order of admitting the said Writ
Petition was not recorded. Accordingly, the said Writ Petition came up for admission before us.
By consent, we ordered both the Writ Petitions to be placed for hearing to consider the
preliminary objection raised on behalf of the private Respondents. Accordingly, in the present
order, we propose to deal essentially with the preliminary objection raised on behalf of the
private Respondents.
12. In both these Writ Petitions, the principal grievance is that the concerned Magistrate issued
process in the respective complaints without application of mind. According to the Petitioners,
the order issuing process has been issued mechanically. The concerned Magistrate did not make
any inquiry as was warranted in terms of Section 202 of the Cr.P.C., before issuing process. It
is next contended that the private Respondent (renumbered Respondent No. 2) by no stretch of
imagination, can be said to be aggrieved party in the context of so called imputations contained
in the publication in question. It is next contended that insofar as the second complaint is
concerned, the Magistrate has completely glossed over the fact that neither in the complaint
nor in the Sworn Statement filed by the Respondent, any justification is forthcoming to
constitute offence under Information Technology Act, 2000. Besides, both the complaints filed
by the respective private Respondents (renumbered Respondent No. 2) are founded on frivolous
and baseless pleas. As a matter of fact, the same have been filed to stall the complaint filed by
the Petitioners in the Court at Mumbai, in which process was issued against the named accused.
Further, the communication merely restates the position arising out of the said complaint filed
by the Petitioners in earlier point of time and at any rate, such publication, by no standard, can
be considered as defamatory or resulting in defamation. In any case, the complaints have been
filed after lapse of more than one year from the date of alleged publication. Considering all
these aspects, it is obvious that the two complaints have been filed against the Petitioners in
the Court at Hyderabad only out of vengeance against the Petitioners and were not bonafide
ones. These are the broad contentions raised in the two Writ Petitions filed before us.
13. In the first Writ Petition, for justifying the maintainability of the Writ Petition before this
Court, to assail the order issuing process of the Magistrate at Hyderabad, the Petitioners have
asserted as follows:
14. The Petitioners submit there is no alternative efficacious remedy available to
them. There is no provision for discharge in a summons triable case, and the
remedy of recalling of process is not available. The remedy of filing a Criminal
Revision Application is also not an alternative, efficacious remedy and is fraught
with hardship, inconvenience and prejudice to the Petitioners. The fundamental
rights of the Petitioners under Article 21 of the Constitution of India have been
infringed upon. A prosecution of this nature entails hardship and travel to another
State to face a criminal trial, which on the face of it, does not deserve to be tried. In
these circumstances, the Petitioners have no other avenue except to file the present
Writ Petition.
15. Respondent No. 3 is amenable to the jurisdiction of this Hon'ble Court since he
claims to be a Director of a company whose registered office is within the
jurisdiction of this Hon'ble Court. The allegedly defamatory email originated from
the Mumbai office of the Petitioner. It contained an account of the proceedings filed
by the Petitioners in the Ld. Addl. Chief Metropolitan Magistrate's Court at
Esplanade, Mumbai. The revenue generated from the illegal sale of timeshares was
to be accounted for by Respondent No. 3 and his co-Accused in Mumbai.
Respondent No. 3's witness, Mr. Arup Sen is also a resident of Mumbai. A
substantial part of the cause of action has arisen within the jurisdiction of this
Hon'ble Court, and therefore Respondent No. 2 is subject to the jurisdiction of this
Hon'ble Court too. The Petitioners' life and liberty as guaranteed under Article 21 of
the Constitution of India is under threat and jeopardy where they ordinarily reside
or carry on business, which area is within the territorial jurisdiction of this Hon'ble
Court.
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14. On similar lines, even in the latter Writ Petition, the justification for invoking the jurisdiction
of this Court is stated in Paragraphs 14 and 15 in the following words:
14. The Petitioners submit there is no alternative efficacious remedy available to
them. There is no provision for discharge in a summons triable case, and the
remedy of recalling of process is not available. The remedy of filing a Criminal
Revision Application is also not an alternative, efficacious remedy and is fraught
with hardship, inconvenience and prejudice to the Petitioners. The fundamental
rights of the Petitioners under Article 21 of the Constitution of India have been
infringed upon. A prosecution of this nature entails hardship and travel to another
State to face a criminal trial, which on the face of it, does not deserve to be tried. In
these circumstances, the Petitioners have no other avenue except to file the present
Writ Petition.
15. Respondent No. 3 is amenable to the jurisdiction of this Hon'ble Court since she
claims to be a shareholder of a company whose registered office is within the
jurisdiction of this Hon'ble Court. The allegedly defamatory email originated from
the Mumbai office of the Petitioner. It contained an account of the proceedings filed
by the Petitioners in the Ld. Addl. Chief Metropolitan Magistrate's Court at
Esplanade, Mumbai. The revenue generated from the illegal sale of timeshares was
to be accounted for by the husband of Respondent No. 3 and his co-Accused in
Mumbai. Respondent No. 3's witness, Mr. Arup Sen is also a resident of Mumbai. A
substantial part of the cause of action has arisen within the jurisdiction of this
Hon'ble Court, and therefore Respondent No. 2 is subject to the jurisdiction of this
Hon'ble Court too. The Petitioners' life and liberty as guaranteed under Article 21 of
the Constitution of India is under threat and jeopardy where they ordinarily reside
or carry on business, which area is within the territorial jurisdiction of this Hon'ble
Court.
15. As aforesaid, both the Writ Petitions have been filed to invoke jurisdiction of this Court
under Article 226 of the Constitution of India r/w Section 482 of the Cr.P.C. However, during
the course of arguments, Counsel appearing for the Petitioners has, in all fairness, stated that
the Petitioners would pursue their remedy before this Court only under Article 226 of the
Constitution of India. The Petitioners have sought leave to amend the Petitions so as to restrict
their Petitions only under Article 226 of the Constitution of India. We have no difficulty in
acceding to this request. We hope that necessary amendment will be carried out by the
Petitioners in this behalf.
16. With reference to the preliminary objection taken by the private Respondents about the
maintainability of the two Writ Petitions, the Counsel appearing for the respective parties have
invited our attention to some of the decided cases on the point. Much emphasis was placed on
the decision of the Apex Court in the case of Navinchandra N. Majithia v. State of Maharashtra
and Ors. reported in MANU/SC/0549/2000 : (2000) 7 SCC 640. Reliance was also placed on the
decision in the case of Om Prakash Srivastava v. Union of India (UOI) and Anr. reported in
2006 (2) UJ (SC) 953. The Petitioners placed emphasis on the decision of another Division
Bench of our High Court in the case of The First Custodian Fund (India) Ltd. v. The Nedungadi
Bank Ltd. reported in MANU/MH/0379/2007 : 2007 (6) Mh.L.J. 295. Besides, reliance was
placed on the decision of Allahabad High Court in the case of Motilal v. State through Smt.
Sagarwati reported in MANU/UP/0381/1952 : AIR 1952 All.963 to contend that the expression
"authority" appearing in Article 226 would take within its sweep even the Court and the order
passed by the Court.
17. After the arguments were virtually concluded on the preliminary objection raised before us,
when the matter was listed for pronouncement of order, attention of the Counsel was invited to
the decision of the Apex Court in the case of Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd.
and Ors. reported in MANU/SC/8067/2006 : (2006) 3 SCC 658. The Counsel appearing for the
parties have analysed the said decision. The Petitioners, in addition, relied on the decision of
the Apex Court in the case of Surya Dev Rai v. Ram Chander Rai and Ors. reported in
MANU/SC/0559/2003 : (2003) 6 SCC 675.
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18. The answer to the preliminary objection can be given on the basis of the decided cases on
which reliance has been placed before us. In the case of Mosaraf Hossain Khan (supra),
complaint was filed in the Court of Chief Judicial Magistrate, Birbhum at Suri alleging that
several cheques of diverse sums issued by the Respondent had been dishonoured which
amounted to offence under Section 138 of the Negotiable Instruments Act, 1881. The
Respondents filed Writ Petition in the High Court of Kerala at Ernakulam challenging the order
of issuance of process by the Chief Judicial Magistrate, Birbhum at Suri on the argument that no
part of cause of action had arisen at Birbhum at Suri. The preliminary objection regarding
maintainability of the Petition was taken before the Kerala High Court. Almost parallel situation
arises in the present case. The dictum of the Apex Court in this Judgment, therefore, is of some
significance. In Para 18 of this decision, the Apex Court has adverted to the decision of the
Single Judge of the Kerala High Court in the case of Augustine v. Omprakash Nanakram
reported in MANU/KE/0217/2001 : (2001) 2 KLT 638. In that case, the Kerala High Court, on
arriving at a finding of fact obtaining therein, was of the opinion that the cause of action arose
within the jurisdiction of the Kerala High Court. The Kerala High Court restated the legal
position that so far as the question of territorial jurisdiction with reference to a criminal offence
is concerned, the main factor to be considered is the place where the offence has been
committed. This exposition of the Kerala High Court has been quoted with approval by the Apex
Court. In Paragraph 25 of the reported Judgment, the Apex Court then went on to observe as
follows:
25. It is no doubt true that in a criminal matter also the High court may exercise its
extraordinary writ jurisdiction but interference with an order of the Magistrate
taking cognizance under Section 190 of the Code of Criminal Procedure will stand
somewhat on a different footing as an order taking cognizance can be the subject-
matter of a revisional jurisdiction as well as of an application invoking the inherent
jurisdiction of the High Court.
...In Surya Dev Rai we may however, notice that this Court categorically stated that
the High Court in issuing a writ of certiorari exercises a very limited jurisdiction. It
also made a distinction between exercise of jurisdiction by the High Court for
issuance of a writ of certiorari under Articles 226 and 227 of the Constitution. It
categorically laid down that while exercising its jurisdiction under Article 226, the
High Court can issue a writ of certiorari only when an error apparent on the face of
the record appears as such; the error should be self-evident. Thus, an error
according to this Court needs to be established.
In Paragraph 28 of the same decision, the Apex Court has observed thus:
28. We have referred to the scope of jurisdiction under Articles 226 and 227 of the
Constitution only to highlight that the High Courts should not ordinarily interfere
with an order taking cognizance passed by a competent court of law except in a
proper case. Furthermore only such High Court within whose jurisdiction the order
of the subordinate court has been passed would have the jurisdiction to entertain an
application under Article 227 of the Constitution unless it is established that the
earlier cause of action arose within the jurisdiction thereof.
While examining the facts of the case on hand, the Apex Court proceeded to answer the issue
as can be discerned from observations in Paragraphs 31 and 32 of the same decision which
read thus:
31. A bare perusal of the complaint petition would clearly go to show that according
to the complainant the entire cause of action arose within the jurisdiction of the
District Court of Birbhum and in that view of the matter it is that court which will
have jurisdiction to take cognizance of the offence. In fact the jurisdiction of the
Court of CJM, Birbhum, Suri, is not in question. It is not contended that the
complainant had suppressed material fact and which if not disclosed would have
demonstrated that the offence was committed outside the jurisdiction of the said
court. Even if Section 178 of the Code of Criminal Procedure is attracted, the Court
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of the Chief Judicial Magistrate, Birbhum will alone have jurisdiction in the matter.
32. Sending of cheques from Ernakulam or the respondents having an office at that
place did not form an integral part of "cause of action" for which the complaint
petition was filed by the appellant and cognizance of the offence under Section 138
of the Negotiable Instruments Act, 1881 was taken by the Chief Judicial Magistrate,
Suri....
19. Even in the case of Navinchandra N. Majithia (supra), in Paragraph 22, the Apex Court has
restated the settled legal position that the question of territorial jurisdiction with reference to a
criminal offence is concerned, the main factor to be considered is the place where the alleged
"offence has been committed". In the facts of that case, the Petitioner had approached the High
Court on the assertion that the entire transaction upon which the complaint was purportedly
based had taken place at Mumbai. On facts, the Apex Court found that a large number of
events have taken place at Mumbai in respect of the allegations contained in FIR registered at
Shillong. On the basis of the said finding, the Court eventually proceeded to issue directions to
transfer the FIR to be investigated by the Mumbai Police. It is not necessary to multiply the
authorities which have been pressed into service. By now, it is well established position that the
sweep of Article 226(2) of the Constitution of India invests authority in the High Court to issue
directions, orders or writs to any Government, authority or person in relation to the territories
within which the cause of action, wholly or in part, arises for the exercise of such power,
notwithstanding that the seat of such Government or authority or the residence of such person
is not within its territories. It is also well established position that the expression "authority"
occurring in Article 226(2) would take within its sweep orders passed by the Judicial Authority
or Court. At the same time, we cannot be oblivious to the exposition of the Apex Court in the
case of Mosaraf Hossain Khan (supra), in Paragraph 25, that the interference by the High Court
with an order of the Magistrate taking cognizance under Section 190 of the Cr.P.C. ought to
stand somewhat on a different footing-as an order taking cognizance can be subject-matter of
the revisional jurisdiction as well as of an application invoking the inherent jurisdiction of the
Court. No doubt, this Court has power to issue Writ of Certiorari, however, to borrow the words
of the Apex Court, exercise of that jurisdiction is very limited. The Writ of Certiorari is issued
only when an error apparent on the face of the record appears as such. In that, the error should
be self-evident.
20. The moot question that needs to be answered by us is: whether any part of cause of action
for which the complaint has been filed, has arisen within the territorial jurisdiction of this Court.
As is noticed earlier, it is well established position that so far as the question of territorial
jurisdiction with reference to a criminal offence is concerned, the main factor to be considered is
the place where the "offence has been committed". Going by the complaint, it is noticed that
the case of the respective complainant is that the alleged publication was done through
electronic message/mail at Hyderabad. The offence of defamation is completed with its
publication. The three essential requirements to constitute an offence under Section 500 of the
Penal Code are: (i) making or publishing any imputation concerning any person, (ii) such
imputation must have been made by words spoken or intended to be read, or by signs or by
visible representation and (iii) such imputation must have been made with the intention of
having or with knowledge or having reasons to believe that it will harm the reputation of the
person concerning whom it is made.
21. Going by the complaints, it is amply clear that the case of the respective complainants is
that the alleged publication was done at Hyderabad and was brought to their notice at
Hyderabad, within the jurisdiction of the concerned Metropolitan Magistrate at Hyderabad. The
fact that the alleged e-mail was sent from Mumbai, is of no avail. That act is not an integral
part of "cause of action" for which the complaint has been filed by the private Respondents and
in respect of which cognizance has been taken by the concerned Magistrate at Hyderabad. In
other words, the offence is "complete and committed" at Hyderabad with the publication at
Hyderabad and even the process issued by the Court is at Hyderabad. These material events
have taken place outside the jurisdiction of this Court. The emphasis placed on the averments
made in respective Writ Petitions which have been alluded to, does not take the matter any
further. None of the facts stated by the Petitioners therein will be of any avail for examining the
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question of cause of action for which complaint has been filed. That is the core issue to be
answered by us. Similarly, the fact that the same e-mails have been circulated throughout the
Country is of no avail because the cause of action for instituting the complaints in question is
limited to publication made at Hyderabad and brought to the notice of the private Respondent
at Hyderabad. The publication also made at other places, would not militate against the cause
of action for instituting complaint at Hyderabad and more so, when the complaint at Hyderabad
is limited to the defamation caused at Hyderabad and brought to the notice of private
Respondents at Hyderabad. For invoking the jurisdiction of the Criminal Court, the provisions of
Chapter XIII of the Cr.P.C. would be of some significance. Section 177 of the Cr.P.C. clearly
provides that every offence shall ordinarily be inquired into and tried by a Court within whose
local jurisdiction it was committed. Section 178 of the Cr.P.C. provides for place of inquiry or
trial. Section 179 of the Cr.P.C. postulates that when an act is an offence by reason of anything
which has been done and of a consequence which has ensued, the offence may be inquired into
or tried by a Court within whose local jurisdiction such thing has been done or such
consequence has ensued. Section 182(1) of the Cr.P.C. deals with offence committed by letters.
It provides that any offence which includes cheating may, if the deception is practiced by means
of letters or telecommunication messages, be inquired into or tried by any Court within whose
local jurisdiction such letters or messages were sent or were received; and any offence of
cheating and dishonestly inducing delivery of 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.
22. Considering the provisions in the Cr.P.C. and because the facts and events referred to in the
Writ Petitions cannot be said to be integral part of the cause of action for which the complaint
has been filed by the private Respondents; coupled with the fact that the alleged offence is
committed at Hyderabad with the publication of the offending article as a result of which, the
Criminal Court at Hyderabad alone would have jurisdiction to try the alleged offence committed
within its jurisdiction and that Court having taken cognizance of offence of defamation by
issuing process in the said complaint, we have no hesitation in upholding the preliminary
objection regarding the maintainability of these Petitions.
23. That takes us to the contention as to the issuance of process in the second complaint also
for offence punishable under Section 85 read with 66 of the Information Technology Act, 2000.
Since the Petitioners may have to take recourse to remedy before the appropriate High Court
which will have supervisory jurisdiction over the Magistrate at Hyderabad, which has issued the
impugned process, the grievance of the Petitioners in relation to unjust issuance of process with
regard to the offence pertaining to the provisions of Information Technology Act can also be
conveniently dealt with in the said proceedings. We, therefore, express no opinion on the said
matter.
24. In view of the above, we decline to exercise our writ jurisdiction. We, therefore, dispose of
both these Petitions with liberty to the Petitioners to pursue appropriate remedy as may be
advised. Ordered accordingly.
25. We make it clear that this Judgment is not an expression of opinion either way on the
merits of the controversy and more so, the grounds urged in the respective Petitions regarding
the validity of the order of issuance of process. We leave all those questions open.
26. At this stage, Counsel for the Petitioners pray that the interim protection which is enuring in
favour of the Petitioners be continued for some time to enable the Petitioners to take recourse
to appropriate remedy. Although this request is opposed by the Counsel for the private
Respondents, in the interest of justice, we order that the interim arrangement be continued for
a period of six weeks from today.

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