Respondent Compendium Part 2

SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.
Page 1 Friday, October 20, 2023

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TruePrint™ source: Supreme Court Cases, © 2023 Eastern Book Company. The text of this version of
this judgment is protected by the law declared by the Supreme Court in Eastern Book Company v. D.B.
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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© 2023 EBC Publishing Pvt. Ltd.
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1991 SCC OnLine Ori 420 : 1992 Cri LJ 2231 : (1992) 73 CLT (SN 3) 2
Orissa High Court

(BEFORE A. PASAYAT, J.)
Duryodhan Mahanta … Petitioner;

Versus
Saraswati Mahanta … Opposite Party.
Crl. Revn. No. 591 of 1990
Decided on August 20, 1991
ORDER
1. Propriety of order passed under S. 97 of the Criminal Procedure Code, 1973 (in
short the ‘Code’), is the subject-matter of adjudication in this revision application.
2. Opposite party filed a petition styled one u/S. 97 of the Code praying learned
Judicial Magistrate, First Class, Jajpur Road (in short the ‘JMFC’) to issue a search
warrant to the Officer-in-Charge, Sukinda Police Station to search the house of present
petitioner, release from his custody a child confined by petitioner and produce him and
to give custody to the mother, the present opposite party as she is the best custodian
of the child. According to present opposite party, petitioner was her husband and a
son
Page: 2232
named Laxman was born on 28-12-1987; on 7-7-1990 she was driven out of the
house of petitioner who had married for second time; a case for grant of maintenance
was filed, as well as a complaint case u/S. 494 of the Penal Code, 1860 (in short the
‘IPC’); on 1-9-1990 the present petitioner forcibly took away the child to his house,
and there was apprehension of danger to life of the child and the mother is the best
custodian of the child. It was alleged that child was wrongfully confined and there was
necessity for issue of a search warrant in terms of S. 97 of the Code. The prayer was
accepted by learned JMFC, who directed the Officer-in-Charge, Sukinda P.S. to recover
the child and produce him before court soon after execution of search warrant. This
order was passed on 3-9-1990. The matter was directed to be placed on 4-9-1990.
3. Since order dated 3-9-1990 was not complied, it was adjourned to 7-9-1990.
Matter was again adjourned to 21-9-1990, awaiting execution of warrant. On 17-9-
1990, search warrant issued was returned after execution. Petitioner entered
appearance on that date. Since opposite party was not present in court, her Advocate
filed a petition to keep the child in the custody of head of the institution of Gobarghati
Ashram School. The head of the said institution expressed his inability to take custody
of child, on the ground that there was no scope for keeping such a small child. It is
asserted by learned counsel for petitioner that in view of refusal by Ashram authority,
the child was left uncared for in the Police Station and petitioner was called to look
after him. On 19-9-1990 matter was taken up by learned JMFC, who passed an order
delivering custody of the child to the mother (opposite party), with further direction
that she was to have custody till the child attains majority. He also further directed
that after the child attains majority, he is at liberty to go to his father (petitioner). It
was also directed that if father wanted in between to see the child, he was permitted
to do so.
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4. According to learned counsel for petitioner, exercise of jurisdiction u/S. 97 of the

Code was illegal and uncalled for. Learned counsel for opposite party, however,
submits that there is nothing illicit in the order passed by learned JMFC to warrant any
interference.
5. Provisions contained in S. 97 of the Code are emergent in nature. A Magistrate is
authorised to issue a search warrant if he has reason to believe or on the truth of the
allegation about the wrongful confinement of a person. The Magistrate cannot issue
search warrant unless confinement amounts to offence. S. 97 of the Code corresponds
to S. 100 of the old Code of 1898. This section contemplates only wrongful
confinement. Wrongful confinement is defined in Ss. 339 and 340, IPC. Use of the
expression “reason to believe” makes the legislative intent very clear that unless
Magistrate has reason to believe that a person is confined in such circumstances that
confinement itself amounts to an offence, issue of a search warrant under this section
is without jurisdiction. Expression “reason to believe” implies belief arrived at judicially
after application of judicial mind on consideration of available materials with sense of
responsibility and effort of mind without ignoring as far as possible other side of
controversy. When the child is in the custody of either father or mother, it becomes
rather difficult to immediately come to a conclusion that confinement is illegal. A
Magistrate taking action has to satisfy himself that there exist materials to induce his
belief that the person is confined in such circumstances as to make the confinement
amount to an offence. This is the requisite pre-condition before action can be taken.
The allegations need not be absolute in precision. In the absence of material which
prima facie shows that confinement amounts to an offence, action u/S. 97 would be
improper. This Court in (1989) 2 OCR 565 : (1990 Cri LJ 1085) Yudhistir Mohanand v.
Dalimbe Mohanand, held that when a father takes his own child from the keeping of
the mother, he does not thereby commit an offence, because he is the natural
guardian of the minor, and the mother cannot have a permanent right of guardianship
in preference to that of a father. A similar view was expressed by Madras High Court in
1981 Cri. LJ (NOC) 113, K. Sarasu v. Sengodan, to
Page: 2233
which reference was made in Yudhistir's case (supra). However, Kerala High Court held
that when a Muslim father took away a child aged about 4 years from the custody of
his wife by use of physical force, Magistrate had reason to believe that confinement
amounted to a wrongful confinement. (See 1978 Kerala Law Times 33, corresponding
to 1978 Cri. LJ (NOC) 98, K. Pareekutty v. Ayyikkal Ayissakutty. Where a mother took
the custody of a child under 5 years, it was held that no offence was prima facie
committed, See Banarsi Lal v. Smt. Neelam, AIR 1969 Delhi 304 : (1969 Cri LJ 1370).
When a natural father took away the child from the adoptive father, it was held that S.
100 of the Old Code was inapplicable, as it was doubtful whether any offence had been
committed. (See Chagan Raj v. Hera Lal Doosai, AIR 1920 Cal 562 : (20 Cri LJ 729).
After the search is over and the person is found, then the concerned person is to be
immediately brought to the Magistrate who has to make such order as circumstances
warrant. The Magistrate before whom a person is produced by the Executing Officer, is
to make such order as in the circumstances appears proper. Impugned order passed
by learned JMFC, is in excess of his jurisdiction, because he did not consider the fact
that the child was in custody of the father. Under S. 6 of the Hindu Minority and
Guardianship Act (in short the ‘Guardianship Act’), the mother is the guardian of a
minor child who has not completed age of 5 years, and may have custody of minor.
According to S. 6, preferential guardian is natural father, except when minor has not
completed age of 5 years, in which circumstances custody shall be that of mother. The
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use of the word ‘ordinarily’ used in S. 6 reflects legislative intent to be that welfare of
a child is to be kept in view and thereafter custody decided. Such question of welfare
of child is to be decided by Civil Court in an appropriate proceeding as observed by
Supreme Court in (1987) 1 SCC 42 : AIR 1987 SC 3, Mrs. Elizabeth v. Arvand.
Paramount consideration is the welfare of the child. Therefore, learned JMFC was not
justified to direct that child shall be in custody of mother, till he attains majority. Such
a direction is not contemplated in terms of S. 97 of the Code.
6. Though order is not tenable in view of the fact that the child has already been
handed over to the mother, opposite party herein, it would be inequitable to interfere
with the orders. However, it is open to petitioner to make an appropriate motion in a
court of competent jurisdiction, if so advised, to decide the question of custody of the
child.
7. The Criminal Revision is disposed of accordingly.
8. Orderred accordingly.
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2006 SCC OnLine Del 1401 : (2006) 135 DLT 414 (DB)
In the High Court of Delhi

(BEFORE SWATANTER KUMAR AND G.S. SISTANI, JJ.)
EX. RECT./GD Vinod Kumar … Petitioner;

versus
Union of India and Ors. … Respondents.
W.P. (C) No. 13560 of 2006, W.P. (C) No. 16083/2006, W.P. (C)
No. 12404/2005, W.P. (C) No. 11040/2004, W.P. (C) No. 12018 of
2006
Decided on November 16, 2006
Page: 416
The Judgment of the Court was delivered by
SWATANTER KUMAR, J.— Cause of action determines the Court of

competent jurisdiction when a party invokes extraordinary jurisdiction
of the Court under Article 226 of the Constitution of India. In discern
contradistinction to the
Page: 417
provisions of Sections 16 to 20 of the Code of Civil Procedure, Article

226(2) restricts the principle of territorial jurisdiction only to ‘cause of
action’. The expression would take in its ambit partial or entire cause of
action. Part of cause of action is again a term of wide magnitude and
thus, has to be construed liberally. However, once the element of cause
of action or any part thereof in its minutest form is absent, the Court
may not have territorial jurisdiction, only on the basis of the
residence/location of the party. The provisions of Section 20 of the Code
states that subject to the limitation contained in the preceding
sections, a suit could be instituted in a Court within the local limits of
whose jurisdiction, the defendant or each of the defendants voluntarily
resides or where the cause of action wholly or in part arises. Thus, there
are two factors which independent of each other, can grant jurisdiction
for a party to institute a suit in the Court of competent jurisdiction.
However, these provisions would not be applicable to writ jurisdiction
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stricto senso. It is a settled principle of law that provisions of the Civil

Procedure Code would not apply in full vigour or strictly to the writ
proceedings. They are not applicable of their own force to such
proceedings but nonetheless the writ proceedings could be governed by
principles analogous to those contained in the Code particularly when
they are not inconsistent with the writ rules of this Court or the
constitutional mandate contained in Article 226. Unlike the provisions of
Section 20 of the Code which specifies different grounds for vesting
jurisdiction in the Court, Article 226 contemplates location of the
authorities and arising of cause of action partly or wholly within the
territorial jurisdiction of that Court. By introduction of Article 226(2),
great emphasis has been laid on the concept of cause of action. Even
this statement is further clarified by use of non obstante clause that it
would be so notwithstanding the fact that seat of such Government or
authority or residence of such person is not within those territories. This
manifestly shows that residence of the party is not really a relevant
consideration for determining jurisdiction of a Court under these
provisions. In view of this constitutional mandate, the provisions of the
High Court Rules and Orders relating to exercise of writ jurisdiction
have to be read ejusdem generis to the constitutional provisions.
2. To appropriately discuss the rationale between the principle of

cause of action giving jurisdiction to a Court, it will be useful to refer to
the provisions of Article 226 of the Constitution, which reads as under:
“226. Power of High Courts to issue certain writs.—(1)
Notwithstanding anything in Article 32(2)[***], every High Court
shall have powers, throughout the territories in relation to which it
exercises jurisdiction, to issue to any person or authority, including
in appropriate cases, any Government, within those territories
directions, orders or writs, including 3 [writs in the nature of habeus
corpus, mandamus, prohibition, quo warranto and certiorari, or any
of them, for the enforcement of any of the rights conferred by Part
III and for any other purpose].
(2) The power conferred by Clause (1) to issue directions, orders or
writs to any Government, authority or person may also be
exercised by any
Page: 418
High Court exercising jurisdiction 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 those territories.
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had set aside the order of dismissal and ordered to conduct a de novo
departmental inquiry against the petitioner. On 5th June, 1997, the
petitioner was reinstated in service with all consequential benefits. On
26th November, 1997, the Inquiry Officer had submitted his report at
the place of posting of the petitioner. In furtherance to the said report,
the petitioner was dismissed from service in March, 1998. The
petitioner filed an appeal against the said order of dismissal on 25th
January, 1999, which was also dismissed. The revision petition filed by
the petitioner was also rejected vide order dated 14th December, 1999.
All these orders have been questioned by the petitioner in the present
writ petition primarily on the ground of illegality, arbitrariness and that
the order of dismissal was passed without holding any inquiry much
less de novo inquiry.
40. We may notice that impugned order was passed by the Deputy
Director General of Police, CRPF Gauhati-23 on 29th April, 1999 and by
the Commandant 6th Battalion CRPF Chimukedima Dimapur
(Nagaland) in March, 1998. Revisional order dated 14th December,
1999 dismissing the revision petition filed by the petitioner was passed
by Director General, North-Eastern Sector, CRPF Guwahati. The
petitioner had filed appeal/revision against the order of dismissal before
the authorities at Guwahati. Even the second appeal/representation
filed by the petitioner in July, 1999 was addressed to the Inspector
General of Police at Shillong, who was the competent authority to take
decision upon the representation. The disciplinary proceedings and all
other proceedings against the petitioner
Page: 436
were taken place at Gauwahati or Shillong i.e. beyond the territorial

jurisdiction of this Court. No cause of action or part thereof has arisen
within the territorial jurisdiction of this Court. Merely because the Office
of the Director General, CRPF is located at Delhi would not by itself vest
this Court with territorial jurisdiction. In fact it would be putting the
parties to great inconvenience as all the records would have to be
summoned before this Court, which are available at different places in
those areas.
41. Resultantly and in view of the above ennunciated principles of

law, we are of the view that this Court has no territorial jurisdiction to
entertain and decide the present writ petition. The same is accordingly
dismissed with liberty to the petitioner to approach the Court of
competent jurisdiction. However, in the facts and circumstances of the
case, the parties are left to bear their own costs.
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W.Ps. dismissed, W.P. (C) No. 16083/2006 disposed of.

———
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/
regulation/ circular/ notification is being circulated on the condition and understanding that the publisher would not be
liable in any manner by reason of any mistake or omission or for any action taken or omitted to be taken or advice
rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification. All
disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The authenticity of
this text must be verified from the original source.
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2022 SCC OnLine Del 2803
In the High Court of Delhi at New Delhi

(BEFORE CHANDRA DHARI SINGH, J.)
H.S. Rai … Petitioner;

Versus
Union of India and Others … Respondent.
W.P.(C) 700/2005
Decided on August 30, 2022
Advocates who appeared in this case :
Mr. Gajendra Giri and Mr. Aditya Giri, Advocates
Mr. Raj Birbal, Sr. Advocate with Mr. Raavi Birbal and Mr. Rishabh Nigam,
Advocates for R-2
The Order of the Court was delivered by
CHANDRA DHARI SINGH, J. (Oral):— The instant civil writ petition under Article 226
of the Constitution of India on behalf of the petitioner seeking the writ of certiorari
thereby quashing the order dated 16th January 2003 and a writ in the nature of
mandamus directing the respondents to reimburse the petitioner to the extent of his
entitlement.
2. The petitioner was an employee with Projects and Development India Ltd.
(hereinafter “PDIL”), which is a government undertaking and controlled by the Ministry
of Chemical and Fertilizer, Government of India. The petitioner joined the PDIL in 1974
in the pay scale of Rs. 400-900/- and thereafter, was given regular pay scale of Rs.
5400-9425/- since 1980 working as Deputy Project Manager.
3. The petitioner was served with a suspension order on 24th June 2002 issued by
General Manager, PDIL, informing him about serious allegations against him for
misappropriation of the company's money through reimbursement of medical
expenses for abnormally large amount by submitting false, fictitious medical claim for
self and family members. The petitioner was informed that during the period of
suspension he would not be allowed to enter into the PDIL premises without a written
permission of the competent authority, his ID card was surrendered and he was
advised to sign the attendance sheet daily. He was made aware that he would be
entitled to subsistence allowance during the period of suspension.
4. Thereafter, a Chargesheet Memo was issued against the petitioner on 22nd July
2002, whereby the following Article of Charges were framed against him:—
“ARTICLE I:
Dr. H.S. Rai has been misappropriating Company's money by getting
reimbursement of medical expenses for himself and for his wife Mrs. Lalita Rai by
adopting malpractices and by submitting false and fictitious
claims/declaration/statement regularly.
ARTICLE II:
Dr. H.S. Rai has claimed reimbursement of medical expenses for treatment for
self and his wife by submitting false and fictitious medical claims and
reimbursement of the same has been received by him regularly.
ARTICLE III:
The prescription indicate that on one specific date the repeat of medicine of
previous two different dated is being done by two doctors on various occasions is
with the sole moto to get the bill only and not the medicine.
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8. In the light of above decisions if the claim of petitioners is examined, the

same reveals no part of cause of action accrued within the territorial jurisdiction of
this Court. Mere being residence of Jabalpur does not extend right to petitioner to
file this petition before this Court. The other judgments relied upon by the
petitioner are distinguishable having no applicability to the facts of the case in
hand.”
25. In the instant petition as well, the original authority as well as the appellate
authority both were constituted and made their respective reports and orders at
Jharkhand. The petitioner could not have approached this Court merely for the reason
of being a resident of Delhi and falling within the territorial jurisdiction of this Court.
26. The bare language of Article 226 of the Constitution of India is reproduced
hereunder to highlight the powers and extent of the powers that this Court has while
exercising writ jurisdiction:—
“226. Power of High Courts to issue certain writs.
(1) Notwithstanding anything in article 32, every High Court shall have power,
throughout the territories in relation to which it exercises jurisdiction, to issue
to any person or authority, including in appropriate cases, any Government,
within those territories directions, orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any
of them, for the enforcement of any of the rights conferred by Part III and for
any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court
exercising jurisdiction 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 those territories.
(3) Where any party against whom an interim order, whether by way of
injunction or stay or in any other manner, is made on, or in any proceedings
relating to, a petition under clause (1), without-
(a) furnishing to such party copies of such petition and all documents in
support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to
the High Court for the vacation of such order and furnishes a copy of such
application to the party in whose favour such order has been made or the
counsel of such party, the High Court shall dispose of the application within
a period of two weeks from the date on which it is received or from the date
on which the copy of such application is so furnished, whichever is later, or
where the High Court is closed on the last day of that period, before the
expiry of the next day afterwards on which the High Court is open; and if
the application is not so disposed of, the interim order shall, on the expiry
of that period, or, as the case may be, the expiry of the said next day,
stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation
of the power conferred on the Supreme Court by clause (2) of article 32.”
27. Under Article 226 of the Constitution of India, the power to issue writ is with
respect to any person, authority or any Government which falls within the territory of a
High Court. The jurisdiction of the High Court also extends to matters where the cause
of action arises, whether wholly or in part. Hence, it is clear that the power to exercise
writ jurisdiction has its own limitations. These limitations would also apply to the case
at hand as it would to any other matter before this Court under Article 226.
28. The first situation under which this Court can exercise its jurisdiction is when
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the person or authority to which the writ is to be issued, is falling within the territory
of this Court. The petitioner herein is seeking issuance of writ against an authority,
that is, the PDIL, which does not have any office, much less its registered office, in
Delhi. The order of penalty which has been assailed before this Court was passed in
Jharkhand after enquiry proceedings and the report thereto was made in Sindri,
Jharkhand. Hence, the respondent no. 2 and 3, as representatives of the PDIL, are not
amenable to the jurisdiction of this Court. Therefore, the instant matter does not
satisfy the condition under Article 226 (1) of the Constitution of India.
29. The second condition under Article 226 (2) of the Constitution extends the writ
jurisdiction of this Court to matters where cause of action has arisen within the
territory of this Court. The petitioner was posted at Sindri, Jharkhand at the relevant
time which the charges leveled against the petitioner pertain to. The enquiry
proceedings against the petitioner were initiated at Jharkhand, the entire enquiry was
conducted at Jharkhand and even the report made and the punishment imposed upon
the petitioner was also at Jharkhand. All of the necessary cause of action arose within
the territory of Jharkhand and not Delhi. The second alternative condition for exercise
of writ jurisdiction under Article 226 also does not arise in favour of the petitioner and
with this Court.
30. Therefore, the case of the petitioner does not lie in either requirement of writ
jurisdiction under Article 226 of the Constitution of India. The petitioner does not have
any locus to approach this Court invoking its writ jurisdiction when neither the
respondent is amenable to its jurisdiction nor has any cause of action arisen within its
territory.
31. It is found after referring to the combined reading of the judgments as
aforementioned, as well as the law pertaining to exercise of jurisdiction under the
Constitution of India, this Court finds force in the arguments made by the respondent.
It is found that this Court is not the appropriate forum to adjudicate upon the
challenge to the order inflicting punishment dated 16th January 2003.
32. Accordingly, without going into the merits of the case, this Court finds that the
instant petition is not maintainable for the want of jurisdiction and hence, the same is
dismissed.
33. The judgment be uploaded on the website forthwith.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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1954 SCR 738 : AIR 1954 SC 207 : (1954) 25 ITR 167
In the Supreme Court of India

(BEFORE M.C. MAHAJAN, C.J. AND B.K. MUKHERJEA, S.R. DAS, VIVIAN BOSE
AND GHULAM HASAN, JJ.)
Civil Appeal No. 118 of 1952

K.S. RASHID AND SON … Appellant;
Versus
THE INCOME TAX INVESTIGATION COMMISSION
ETC. … Respondent.
K.S. RASHID AND SON … Appellant;
Versus
THE INCOME TAX INVESTIGATION COMMISSION
ETC. … Respondents.
K.S. RASHID AHMAD AS REPRESENTATIVE OF MRS
ZAFFAR MOHAMMAD … Appellant;
Versus
THE INCOME TAX INVESTIGATION COMMISSION,
MST SAIDA BEGUM … Appellant;
Versus
THE INCOME TAX INVESTIGATION COMMISSION,
Civil Appeal Nos. 118, 119, 120 and 121 of 1952* , decided on
January 22, 1954
Advocates who appeared in this case:
Dr Bakshi Tek Chand, Senior Advocate (T.N. Sethi, Advocate, with
him), instructed by Rajinder Narain, Agent, for the Appellants;
M.C. Setalvad, Attorney-General for India, (Porus A. Mehta,
Advocate, with him), instructed by R.H. Dhebar, Agent, for the
Respondents.
B.K. MUKHERJEA, J.— These four consolidated appeals, which have
come before us, on a certificate granted by-the High Court of Punjab
under Article 133(1)(c) of the Constitution, are directed against one
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the learned Judges have held that the mere location of the investigation
commission in Delhi is not sufficient to confer jurisdiction upon the
Punjab High Court to issue a writ in the present case. It is said that the
petitioners are assessees within the U.P. State and their original
assessments were made by the Income Tax Officers of that State. The
subsequent proceedings, which had to be taken in pursuance of the
report of the Investigation Commission, would have to be taken by the
Income tax Authorities in the U.P., and if a case had to be stated it
would be stated to the High Court at Allahabad. Taking, therefore, as
the Privy Council had said, that the question of jurisdiction is one of
substance, it was held that no jurisdiction in the present case could be
vested in the Punjab High Court, for that jurisdiction could be avoided
simply by removal of the Commission from Delhi to another place.
3. This line of reasoning does not appear to us to be proper and we
do not think that the decision in the Parlakimedi's case is really of
assistance in determining the question of jurisdiction of the High Courts
in the matter of issuing writs under Article 226 of the Constitution. The
whole law on this subject has been discussed and elucidated by this
court in its recent pronouncement in Election Commission v. Venkata
Rao3 where the observations of the Judicial Committee in Parlakimedi's
case, upon which reliance has been placed by the Punjab High Court,
have been fully explained. It is to be noted first of all that prior to the
commencement of the Constitution the powers of issuing prerogative
writs could be exercised in India only by the High Courts of Calcutta,
Madras and Bombay and that also within very rigid and defined limits.
The writs could be issued only to the extent that the power in that
respect was not taken away by the Codes of Civil and Criminal
Procedure4 and they could be directed only to persons and authorities
within the original civil jurisdiction of these High Courts. The
Constitution introduced a fundamental change of law in this respect. As
has been explained by this Court in the case referred to above, while
Article 225 of the Constitution preserves to the existing High Courts the
powers and jurisdictions which they had previously, Article 226 confers,
on all the High Courts, new and very wide powers in the matter of
issuing writs which they never, possessed before. “The makers of the
Constitution” thus observed Patanjali Sastri C.J. in delivering the
judgment of the court, “having decided to provide for certain basic
safeguards for the people in the new set-up, which they called
fundamental rights, evidently thought it necessary to provide also a
quick and inexpensive remedy for the enforcement of such rights, and,
finding that the prerogative writs, which the courts in England had
developed and used whenever urgent necessity demanded immediate
and decisive interposition, were peculiarly suited for the purpose, they
conferred, in the State's sphere, new and wide powers on the High
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Courts of issuing directions, orders, or writs primarily for the

enforcement of fundamental rights, the power to issue such directions,
etc. ‘for any other purpose’ being also included with a view apparently
to place all the High Courts in this country in somewhat the same
position as the Court of King's Bench in England”. There are only two
limitations placed upon the exercise of these powers by a High Court
under Article 226 of the Constitution; one is that the power is to be
exercised “throughout the territories in relation to which it exercises
jurisdiction”, that is to say, the writs issued by the court cannot run
beyond the territories subject to its jurisdiction. The other limitation is
that the person or authority to whom the High Court is empowered to
issue writs “must be within those territories” and this implies that they
must be amenable to its jurisdiction either by residence or location
within those territories. It is with reference to these two conditions thus
mentioned that the jurisdiction of the High Courts to issue writs under
Article 226 of the Constitution is to be determined. The observations of
the Judicial Committee in Parlakimedi's case1 have strictly speaking no
direct bearing on the point. It is true as the Privy Council said in that
case that the question of jurisdiction must be regarded as one of
substance, but the meaning and implication of this observation could
be ascertained only with reference to the context of the facts and
circumstances of that case. As was pointed out by this court in the case
referred to above5 :“Their Lordships considered, in the peculiar situation
they were dealing with, that the mere location of the Appellate
Authority alone in the town of Madras was not a sufficient basis for the
exercise of jurisdiction whereas both the subject-matter, viz. the
settlement of rent for lands in Ganjam, and the Revenue Officer
authorised to make the settlement at first instance were outside the
local limits of the jurisdiction of the High Court. If the Court in Madras
were recognised as having jurisdiction to issue the writ of certiorari to
the Appellate Authority in Madras, it would practically be recognising
the court's jurisdiction over the Revenue Officer in Ganjam and the
settlement of rents for lands there, which their Lordships held it never
had. That was the ‘substance’ of the matter they were looking at”. In
our opinion, therefore, the first contention raised by Dr Tek Chand must
be accepted as sound and the view taken by the Punjab High Court on
the question of jurisdiction cannot be sustained.
4. So far as the second point is concerned, the High Court relies
upon the ordinary rule of construction that where the legislature has
passed a new statute giving a new remedy, that remedy is the only one
which could be pursued. It is said that the Taxation on Income
(Investigation Commission) Act, 1947, itself provides a remedy against
any wrong or illegal order of the Investigating Commission and under
Section 8(5) of the Act, the aggrieved party can apply to the
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appropriate Commissioner of Income Tax to refer to the High Court any

question of law arising out of such order and thereupon the provisions
of Sections 66 and and 66-A of the Indian Income Tax Act shall apply
with this modification that the reference shall be heard by a Bench of
not less than three Judges of the High Court. We think that it is not
necessary for us to express any final opinion in this case as to whether
Section 8(5) of the Act is to be regarded as providing the only remedy
available to the aggrieved party and that it excludes altogether the
remedy provided for under Article 226 of the Constitution. For purposes
of this case it is enough to state that the remedy provided for in Article
226 of the Constitution is a discretionary remedy and the High Court
has always the discretion, to refuse to grant any writ if it is satiated
that the aggrieved party can have an adequate or suitable relief
elsewhere. So far as the present case is concerned, it has been brought
to our notice that the appellants before-us have already availed
themselves of the remedy provided for in Section 8(5) of the
Investigation Commission Act and that a reference has been made to
the High Court of Allahabad in terms of that provision which is awaiting
decision. In these circumstances, we think that, it would not be proper
to allow the appellants to invoke the discretionary jurisdiction under
Article 226 of the Constitution at the present stage, and on this ground
alone, we would refuse to interfere with the orders made by the High
Court. Dr Tek Chand argues that the Income Tax authorities have not
referred all the matters to the High Court which the appellants wanted
them to do. But for this there is a remedy provided in the Act itself and
in case a proceeding occasions a gross miscarriage of justice, there is
always the jurisdiction in this court to interfere by way of special leave.
In the result, we dismiss the appeals but in the circumstances of the
case make no order as to costs.
———
* (Appeals under Article 133(1)(c ) of the Constitution of India from the Judgment and Order
dated the 10th August 1950 of the High Court of Judicature Punjab at Simla (Khosla and
Kapur JJ.) in Civil Miscellaneous Nos. 259, 260, 261 and 262 of 1950).
1
17 IA 129
2 ILR 11 Cal 275
3 AIR 1953 SC 210
4 Vide in this connection Beasant v. The Advocate General of Madras, 46 IA 176
5 AIR 1953 SC 210, 214
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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1960 SCC OnLine SC 12 : (1961) 2 SCR 828 : (1961) 2 SCJ 235 :

AIR 1961 SC 532
In the Supreme Court of India

(BEFORE B.P. SINHA, C.J. AND J.L. KAPUR, P.B. GAJENDRAGADKAR, K. SUBBA
RAO, K.N. WANCHOO, K.C. DAS GUPTA AND J.C. SHAH, JJ.)
LT. COL. KHAJOOR SINGH … Appellant;

Versus
UNION OF INDIA & ANOTHER … Respondents.
S.S. LATHAR … Intervener.
Civil Appeal No. 37 of 1955* , decided on December 5, 1960
Advocates who appeared in this case:
Vir Sen Sawhney, Advocate, for the Appellant;
C.K. Daphtary, Solicitor-General of India; B.R.L. lyengar, R.H.
Dhebar and T.M. Sen, Advocates, with him, for the Respondents;
Sardar Bahadur, Advocate, for the Intervener.
B.P. SINHA, C.J.— This appeal on a certificate of fitness granted by
the High Court of Judicature, Jammu and Kashmir, is directed against
the judgment and order dated December 7, 1954, in an application
under Article 32(2-A) of the Constitution for issue of a writ, directions
or order against the Union of India, through the Secretary, Ministry of
Defence, New Delhi, as the first respondent and the State of Jammu
and Kashmir through the Chief Secretary, Jammu and Kashmir State,
as the second respondent.
2. The petition is based on the following allegations. The petitioner
will be referred to as the appellant in the course of this judgment. He
was aged 45 years 262 days on August 12, 1954. He was holding a
regular commission in the Jammu and Kashmir State Forces, which
were amalgamated with the Defence Forces of the Union with effect
from September 1, 1949. The appellant holding the substantive rank of
Lieut. Column in the amalgamated forces had the right to continue in
service until he attained the age of 53 years, which event will happen
on November 20, 1961. The Government of India issued a letter dated
July 31, 1954, retiring the appellant from the service with effect from
August 12, 1954. This decision of the Government of India is not based
on any allegations or charge of inefficiency, indiscipline or any other
irregularity on the part of the appellant. The aforesaid decision of the
Government of India prematurely retiring the appellant is impugned as
illegal, unwarranted and discriminatory and as having been made in
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authority or in a given case to any Government, writs or orders there

specified for enforcement of any of the rights conferred by Part III and
for any other purpose. Having thus dealt with the two subsidiary points
raised before us, we may now proceed to consider the two main
contentions which arise for our decision in the present appeal.
13. This brings us to the first question, namely, whether the
Government of India as such can be said to be located at one place,
namely, New Delhi. The main argument in this connection is that the
Government of India is all-pervasive and is functioning throughout the
territory of India and therefore every High Court has power to issue a
writ against it, as it must be presumed to be located within the
territorial jurisdiction of all State High Courts. This argument in our
opinion confuses the concept of location of a Government with the
concept of its functioning. A Government may be functioning all over a
State or all over India; but it certainly is not located all over the State
or all over India. It is true that the Constitution has not provided that
the seat of the Government of India will be at New Delhi. That,
however, does not mean that the Government of India as such has no
seat where it is located. It is common knowledge that the seat of the
Government of India is in New Delhi and the Government as such is
located in New Delhi. The absence of a provision in the Constitution can
make no difference to this fact. What we have to see, therefore, is
whether the words of Article 226 mean that the person or authority to
whom a writ is to be issued has to be resident in or located within the
territories of the High Court issuing the writ? The relevant words of
Article 226 are these—
“Every High Court shall have power … to issue to any person or
authority … within those territories…”.
So far as a natural person is concerned, there can be no doubt that he
can be within those territories only if he resides therein either
permanently or temporarily. So far as an authority is concerned, there
can be no doubt that if its office is located therein it must be within the
territory. But do these words mean with respect to an authority that
even though its office is not located within those territories it will be
within those territories because its order may affect persons living in
those territories? Now it is clear that the jurisdiction conferred on the
High Court by Article 226 does not depend upon the residence or
location of the person applying to it for relief; it depends only on the
person or authority against whom a writ is sought being within those
territories. It seems to us therefore that it is not permissible to read in
Article 226 the residence or location of the person affected by the order
passed in order to determine the jurisdiction of the High Court. That
jurisdiction depends on the person or authority passing the order being
within those territories and the residence or location of the person
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affected can have no relevance on the question of the High Court's

jurisdiction. Thus if a person residing or located in Bombay, for
example, is aggrieved by an order passed by an authority located, say,
in Calcutta, the forum in which he has to seek relief is not the Bombay
High Court though the order may affect him in Bombay but the Calcutta
High Court where the authority passing the order is located. It would,
therefore, in our opinion be wrong to introduce in Article 226 the
concept of the place where the order passed has effect in order to
determine the jurisdiction of the High Court which can give relief under
Article 226. The introduction of such a concept may give rise to
confusion and conflict of jurisdictions. Take, for example, the case of an
order passed by an authority in Calcutta, which affects six brothers
living, say, in Bombay, Madras, Allahabad, Jabalpur, Jodhpur and
Chandigarh. The order passed by the authority in Calcutta has thus
affected persons in six States. Can it be said that Article 226
contemplates that all the six High Courts have jurisdiction in the matter
of giving relief under it? The answer must obviously be “No”, if one is to
avoid confusion and conflict of jurisdiction. As we read the relevant
words of Article 226 (quoted above) there can be no doubt that the
jurisdiction conferred by that Article on a High Court is with respect to
the location or residence of the person or authority passing the order
and there can be no question of introducing the concept of the place
where the order is to have effect in order to determine which High
Court can give relief under it. It is true that this Court will give such
meaning to the words used in the Constitution as would help towards
its working smoothly. If we were to introduce in Article 226 the concept
of the place where the order is to have effect we would not be
advancing the purposes for which Article 226 has been enacted. On the
other hand, we would be producing conflict of jurisdiction between
various High Courts as already shown by the illustration given above.
Therefore, the effect of an order by whomsoever it is passed can have
no relevance in determining the jurisdiction of the High Court which can
take action under Article 226. Now, functioning of a Government is
really nothing other than giving effect to the orders passed by it.
Therefore it would not be right to introduce in Article 226 the concept of
the functioning of Government when determining the meaning of the
words “any person or authority within those territories”. By introducting
the concept of functioning in these words we shall be creating the same
conflict which would arise if the concept of the place where the order is
to have effect is introduced in Article 226. There can, therefore, be no
escape from the conclusion that these words in Article 226 refer not to
the place where the Government may be functioning but only to the
place where the person or authority is either resident or is located. So
far therefore as a natural person is concerned, he is within those
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territories if he resides there permanently or temporarily. So far as an

authority (other than a Government) is concerned, it is within the
territories if its office is located there. So far as a Government is
concerned it is within the territories only if its seat is within those
territories.
14. The seat of a Government is sometimes mentioned in the
Constitutions of various countries but many a time the seat is not so
mentioned. But whether the seat of a Government is mentioned in the
Constitution or not, there is undoubtedly a seat from which the
Government as such functions as a fact. What Article 226 requires is
residence or location as a fact and if therefore there is a seat from
which the Government functions as a fact even though that seat is not
mentioned in the Constitution the High Court within whose territories
that seat is located will be the High Court having jurisdiction under
Article 226 so far as the orders of the Government as such are
concerned. Therefore, the view taken in Election Commission, India v.
Saka Venkata Subba Rao and K.S. Rashid and Son v. Income Tax
Investigation Commission that there is two-fold limitation on the power
of the High Court to issue writs etc. under Article 226, namely, (i) the
power is to be exercised ‘throughout the territories in relation to which
it exercises jurisdiction’, that is to say, the writs issued by the court
cannot run beyond the territories subject to its jurisdiction, and (ii) the
person or authority to whom the High Court is empowered to issue such
writs must be “within those territories” which clearly implies that they
must be amenable to its jurisdiction either by residence or location
within those territories, is the correct one.
15. This brings us to the second point, namely, whether it is possible
to introduce the concept of cause of action in Article 226 so that the
High Court in whose jurisdiction the cause of action arose would be the
proper one to pass an order thereunder. Reliance in this connection has
been placed on the judgment of the Privy Council in Ryots of
Garabandho v. Zemindar of Parlakimedi3 . In that case the Privy Council
held that even though the impugned order was passed by the Board of
Revenue which was located in Madras, the High Court would have no
jurisdiction to issue a writ quashing that order, as it had no jurisdiction
to issue a writ beyond the limits of the city of Madras except in certain
cases, and that particular matter was not within the exceptions. This
decision of the Privy Council does apparently introduce an element of
the place where the cause of action arose in considering the jurisdiction
of the High Court, to issue a writ. The basis of that decision, however,
was the peculiar history of the issue of writs by the three Presidency
High Courts as successors of the Supreme Courts, though on the literal
construction of clause 8 of the Charter of 1800 conferring jurisdiction on
the Supreme Court of Madras, there could be little doubt that the
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of the Constitution.
55. It may seem at first sight that to hold that the High Court within
whose jurisdiction the action or omission, complained of took place will
have jurisdiction, is in effect to accept the accrual of cause of action as
the basis of jurisdiction. This however is not correct. The High Court
within the jurisdiction of which the act or omission takes place, has
jurisdiction, not because a part of the cause of action arose there, but
in consequence of the use of the words “in appropriate cases”.
56. The several cases in the High Court in which the question now
before us has been considered have been referred to in the majority
judgment and also in the judgment of Mr Justice Subba Rao and no
useful purpose would be served in discussing them over again.
57. For the reasons discussed above I have reached the conclusion
that while the Government of India is within the territories of every
High Court in India the only High Court which has jurisdiction to issue a
writ or order or directions under Article 226 or Article 32(2-A) against it
is the one within the territories under which the act or omission against
which relief was sought took place.
58. In the present case the act against which the relief has been
sought was clearly performed at Delhi which is within the territories
under the jurisdiction of the Punjab High Court and the Jammu and
Kashmir High Court cannot therefore exercise its jurisdiction under
Article 226.
59. In the result, I agree with my Lord the Chief Justice that the
appeal should be dismissed with costs.
ORDER
In accordance with the opinion of the majority of the Court, this
appeal is dismissed with costs.
———
* Appeal from the Judgment and Order dated 7th December, 1954, of the Jammu & Kashmir
High Court in Criminal Miscellaneous No. 76 of 2011.
1
(1953) SCR 1144
2
(1954) SCR 738
3 70 IA 129
4
(1953) SCR 1144
5 (1954) SCR 738
6 LR 70 IA 129
7
ILR (1953) 2 All 289
8
AIR (1958) MP 103
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9 AIR (1960) Bom 353
10 (1953) SCR 1144
11 (1954) SCR 738
12 LXX IA 120
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2020 SCC OnLine All 535 : AIR 2020 All 97 : (2020) 3 All LJ 307
(FB) : (2020) 143 ALR 127 : (2020) 143 ALR 275 (FB) : (2021)
150 RD 279 (FB) : (2021) 219 AIC 888 (FB)
In the High Court of Allahabad

(BEFORE SUNITA AGARWAL, ANJANI KUMAR MISHRA AND DR. YOGENDRA KUMAR
SRIVASTAVA, JJ.)
Writ - A No. 2071 of 2017

Manish Kumar Mishra … Petitioner;
Versus
With
Writ - A No. 2073 of 2017
Amarjeet Yadav … Petitioner;
Versus
With
Writ - A No. 2074 of 2017
Rabesh Singh … Petitioner;
Versus
With
Writ - A No. 2075 of 2017
Santosh Kumar … Petitioner;
Versus
With
Writ - A No. 5634 of 2011
Jitendra Kumar Nagar … Petitioner;
Versus
Union of India through Secretary Department of
Home Affairs and Others … Respondent.
With
Special Appeal No. 22 of 2019
Chandra Pal Singh … Petitioner;
Versus
And
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proceedings was not maintainable before this Court as no part of the

cause of action had arisen in the State of U.P.
6. In coming to the aforesaid conclusion the Full Bench took note of
the fact that the misconduct was committed at Calcutta and Summary
Court Martial was also held at Calcutta therefore the entire cause of
action had arisen at Calcutta and merely for the reason that the
petitioner was thereafter residing at Ballia (in the State of U.P.) would
not give jurisdiction to the Court. Reliance in this regard was placed
upon the Constitution Bench judgments rendered by the Supreme
Court in Lt. Col. Khajoor Singh v. Union of India6 , K.S. Rashid and Son
v. Income Tax Investigation Commission7 , and Election Commission,
India v. Saka Venkata Subba Rao8 , for the proposition that the
jurisdiction conferred on the High Court by Article 226 does not depend
upon the residence or location of the person applying to it for relief and
that a writ cannot be issued beyond the territorial jurisdiction of the
High Court.
7. The Full Bench also referred to the judgments in Board of Trustees
for the Port of Calcutta v. Bombay Flour Mills Pvt. Ltd.9 , Aligarh Muslim
University v. Vinay Engineering Enterprises (P) Ltd.10 and Oil and
Natural Gas Commission v. Utpal Kumar Basu11 on the point that the
question as to whether the cause of action had arisen within the
territory of the particular Court would have to be determined in each
case on its own facts in the context of the subject mater of the
litigation and the relief claimed and while determining the objection of
lack of territorial jurisdiction the Court must take all the facts pleaded
in support of the cause of action into consideration although without
embarking upon an enquiry as to the correctness or otherwise of the
said facts.
8. The contention sought to be raised by the petitioner, referring to
the judgment of the Supreme Court in Dinesh Chandra Gahtori v. Chief
of Army Staff12 , that the Chief of Army Staff may be sued anywhere in
the country, was repelled by placing reliance on the Constitution Bench
decisions in K.S. Rashid and Son v. Income Tax Investigation
Commission7 and Election Commission v. Saka Venkata Subba Rao.
9. In order to fully appreciate the import of the Full Bench judgment
in the case of Rajendra Kumar Mishra, the question which was taken up
for consideration and the opinion expressed by the Larger Bench, are
being extracted below:—
“2. The short question in this case is whether this Court has
jurisdiction to decide this petition.”
x x x
“40. For the reasons given above we are of the opinion that the
Chief of Army Staff can only be sued either at Delhi where he is
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and the judgment in the Constable Lalji Pandey can be said to still lay
down the correct law in view of the judgment of the Supreme Court in
Nawal Kishore Sharma, we may take notice of the fact that the question
considered by the Full Bench was as to whether the Court had
jurisdiction to decide the petition at hand, and based on the facts of the
case, it had expressed a view that since no part of the cause of action
in the case had arisen in State of Uttar Pradesh the writ petition was
not maintainable before the Court.
167. As we have noticed earlier, the judgment in the case of
Constable Lalji Pandey was in respect of a Constable in the Central
Reserve Police Force posted at Hyderabad, had absented himself
without leave, and therefore the departmental proceedings were
conducted against him and an order of dismissal was passed. The
appeal and revision filed thereagainst were also rejected. The orders of
the dismissal as well as the appellate and revisional orders were passed
outside the territorial jurisdiction of this Court. It was in the light of the
aforesaid facts that the Division Bench following the judgment of the
Full Bench in the case of Rajendra Kumar Mishra (supra) held that mere
communication of the orders at the residential address of the
respondent at district Bhadohi would not confer territorial jurisdiction to
this Court. It would therefore be seen that the decision in the case of
Constable Lalji Pandey was based on its own facts.
168. It may be taken note of that while considering the question
with regard to jurisdiction of the Court to decide the petition at hand,
the Full Bench in Rajendra Kumar Mishra, after referring to earlier
judgments on the point made an observation that in determining the
objection of lack of territorial jurisdiction the Court must take all the
facts pleaded in support of the cause of action into consideration
although without embarking upon an enquiry as to the correctness or
otherwise of the said facts. The Full Bench further reiterated that a
‘cause of action’ is bundle of facts, which taken with the law applicable,
gives the plaintiff right to relief against the defendant.
169. We may therefore observe that in both the Full Bench
judgment of this Court in the case of Rajendra Kumar Mishra and the
judgment of the Supreme Court in the case of Nawal Kishore Sharma, it
has been held that the question as to whether cause of action, wholly or
in part, had arisen within the territorial jurisdiction of a High Court,
would have to be determined in each case on its own facts and in the
light of the nature and character of the proceedings under Article 226.
170. Thus there does not seem to be any apparent conflict of opinion
in the two views. However, the broad propositions which we have
attempted to cull out from the precedents which are available, may be
taken as reference points while deciding the question of territorial
jurisdiction under Article 226 of the Constitution of India, which are
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stated to be coming up in a fairly large number of matters.

171. The reference is accordingly answered in the manner as
aforesaid.
172. The papers relating to individual cases may now be placed
before the appropriate Bench having jurisdiction in the matter.
———
TruePrint™ source: Maharashtra Law Journal, © 2023 Journal Publications, Nagpur.
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1996 SCC OnLine Bom 651 : 1997 Cri LJ 1269
Bombay High Court

(Panaji Bench (Goa))
(BEFORE R.K. BATTA, J.)
M/s. Mediscarch Laboratories and others … Petitioners;

Versus
State of Goa … Respondent.
Criminal Revn. Appln. No. 2 of 1996
Decided on April 25, 1996
Page: 1270
ORDER
1. Assistant Drugs Controller, State of Goa, Panaji inspected the premises of M/s.
Goa Pharma Panaji on 3-8-1987 and took sample of 4 × 3 × 5 ml. OTOCHLOR
Chloramphenicol ear drops, Batch No. G/170, bearing date of manufacture as 6/87 and
expiry date 11/88, which was manufactured by M/s. Medisearch Laboratories, Thane
Maharashtra, petitioner No. 1 in this revision. Samples of other drugs were also taken.
These drugs were stocked exhibited for sale in the said premises of M/s. Goa Pharma,
Panaji. The said sample of ear drops was sent for analysis to Government Analyst,
Drug Testing Laboratories, Bornbay, who declared that the same was not of standard
quality. Report No. GO—100/87 dated 30-10-1987 of the Government Analyst found
that the said sample contained antibiotic activity equivalent to 3.5 percent of
chloramphenicol which is 72% of the labelled amount of chloramphenicol. Show cause
notice dated 17-11-1987 along with the copy of the test report of the Govt. Analyst
was sent to M/s. Goa Pharma, Panaji, who disclosed vide letter dated 27-11-87 in
reply to show cause that they had purchased the said drug from M/s. Entod
Pharmaceuticals, Bombay vide invoice No. 335 dated 14-7-1987. The said M/s. Entod
Pharmaceuticals is petitioner No. 3 in this petition. Thereafter, show cause notice
dated 27-1-88 was issued to M/s. Entod Pharmaceuticals, Bombay and G.V. Masurkar,
who is petitioner No. 4 in this revision, and is proprietor of M/s. Entod Pharmaceuticals
Bombay who replied vide letter dated 15-2-1988 that they had purchased the said
drugs from M/s. Medisearch Laboratories, Bombay vide invoice No. 04
Page: 1271
dated 9-7-1987. Thereafter, sealed portion of the said drug and copy of test report
dated 30-10-1987. was sent to M/s. Medisearch Laboratories, Bombay, who, vide letter
dated 4-1-1988, addressed to the Joint Commissioner, Food and Drugs
Administration, Maharashtra, challenged the (sic) Test Report of the Government
Analyst. On 9-8-1988, stock of 19 × 5 ml. OCTOCHLOR Chloramphenicol ear drops,
batch No. G/170 was seized by Asst. Drugs Controller, State of Goa, Panaji under
Section 22(1) of the Drugs and Cosmetics Act, 1940, receipt in Form 16 of the stock of
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be triable at Nasik since they are not stocking or exhibiting for sale either by
themselves or by anyone else on their behalf at Nasik. The Court then examined the
question as to whether the manufacturer could be said to have distributed the goods
at Nasik for the purpose of sale. It was pointed out that if the manufacturers had
themselves consigned the goods from Calcutta to Indore or from Indore to Nasik, then
Page: 1273
there could have been no question of any argument regarding distribution. But the
goods in this case were sold to Nathumal Damumal at Calcutta and the transaction
was complete. Nevertheless, it was held that the word “distribute” is wide enough to
include the repose of the goods at Nasik, even after a completed sale at Calcutta, since
the manufacturers were aware that the goods were bound for Nasik. It was further
held that it is clear that the ordinary and general meaning of the word “distribute” is
sufficient to convey spreading of goods anywhere by whatever means that may be
employed and even though the sale was complete at Calcutta, there could be no doubt
that they were intended for Nasik. Process of distribution commenced at Calcutta and
ended at Nasik and where the goods came to be reposed for the purpose of sale.
Taking’ into consideration that the Act was enacted to control the rampant evil of
misnamed drugs or substandard drugs from being sold which may in some cases
prove seriously injurious to the purchaser, it was held that it was not possible to give
any other meaning to the word “distribute” and to give any other meaning, would be
to frustrate the purpose of the Act and enable the manufacturers to manufacture drugs
irresponsibly and spread them throughout the length and breadth of the Country and
escape the consequences for such manufacture. After having reached the said
conclusion, it was held that Section 179 of Code of Criminal Procedure was clearly
attracted, since one of the ingredients of the offence of distribution was actually
reaching of the goods at the place for which they were intended. The objections raised
by the manufacturer were, therefore, rejected.
12. The other ruling of this Court reported in the case of Smt. Sunder Ben v. State
of Maharashtra (supra) is in fact on all fours, in so far as the facts of the case in
revision are concerned. In the said case, the petitioners were partners of the firm
Crystal Chemicals Indore’ doing manufacture of different pharmaceutical products,
including “Codorin”. Batch No. 252 was sold by the petitioners to M/s. Prima Medical
Agency of Indore on 16-12-1976. The said M/s. Prima Medical Agency of Indore, in
turn, sold the same to M/s. Prithlyani Medical Stores, Gondia and the Drugs Inspector
had taken samples from M/s. Prithylyani Medical Store's, Gondia. The complaint was
filed against the petitioners/manufacturers and the proprietor of M/s. Prima Medical
Agency at Indore under Sections 18(a)(ii), 18(a)(iv), Section 17(c), read with Section
27 of the Drugs Act, 1940. The firm: M/s. Prithlyani Medical Stores, Gondia and its
proprietor, were not prosecuted in view of Section 19(3) of the said Act. The
prosecution was launched at Gondia. The manufacturers challenged the jurisdiction of
the Court at Gondia, but the said objection was overruled. The point involved in the
revision in relation to interpretation of Section 179 of Cr: P.C. fell for consideration as
under:—
“When as 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.”
13. It was observed that a plain reading of the Section 179, Cr. P.C. shows that the
offence is triable where the act is done or where the consequence has ensued and
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there could be no doubt that the Court at Indore had jurisdiction to try the offence and
the question which fell for consideration was whether the Court at Gondia had
jurisdiction to try the manufacturer. In support of the submission, Counsel for the
petitioners relied upon the decision reported in case of Bassein Drugs and
Pharmaceutical Industries Pvt. Ltd. v. State of M.P., 1979 MPLJ Note No. 55, order
passed by the Apex Court, dismissing the Special Leave Petition against the said
judgment of the Madhya Pradesh High Court; Ganga Prasad Jaiswal v. Chhotelal Jain,
AIR 1963 Madh Pra 128 : (1963 (1) Cri LJ 445); State v. Dhulaji Bayaji, AIR 1963 Guj
234 : (1963 (2) Cri LJ 273). The prosecution had relied upon State v. Nathumal
Damumal (1962 (1) Cri LJ 16) (Bom) (supra). After consideration of the said
authorities, it was held that the consequences have ensued only at Gondia where the
Drugs Inspector had raided the shop of M/s. Prithiyani Medical Stores and recovered
the misbranded
Page: 1274
drugs and as such, the Court at Gondia had jurisdiction to try the offence under
Section 179, Cr. P.C. The contention of the Counsel for the petitioners was that the
consequences would be deemed to have ensued only at Indore as soon as the Codorin
tablets were sold by the petitioners to M/s. Prima Medical. Agencies, Indore and not at
Gondia, where the misbranded drug was recovered. Rejecting this contention, it was
pointed out that if the said interpretation was accepted, then in a given case, it may
be possible for the manufacturer to defeat the very object of Section 179, Cr. P.C. by
setting a fictitious person and selling him at the firms instance and thereafter
managing the distribution of the drug at some other places.
14. The matter can be looked at from another angle. The drugs are manufactured
for the purpose of sale to the consumers and the actual consequence of misbranded
manufactured drug is on the consumer. This consequence is in fact integral part of
manufacture since manufacture of drug without its sale, has no meaning. The
misbranded drugs having delirious and dangerous consequence on the consumer, may
spread in various parts of the Country. It is not possible to take the view that the
manufacturer can be prosecuted only at the place of manufacture of drugs, because
such stand may lead to escape of defaulting manufacturers from prosecution. There
may be cases where the prosecution is satisfied that in view of Section 19(3) of the
Act, the seller is not liable for prosecution. Drug Inspectors, under Section 22 of the
Act, are empowered to take samples within local limits of the area in which they are
appointed. They can file complaints only in the Court having jurisdiction over the local
limits of the area in which they are appointed. In such eventualities, if the seller
cannot be prosecuted in view of Section 19(3) of the Act, the drug inspector will have
no power to file complaint in the Court in whose jurisdiction the adulterated drug was
manufactured. This would mean that the manufacturers of drugs would not be subject
to prosecution in the State in which the adulterated drug is found for the purpose of
sale and distribution. Moreover, under Section 32 of the Act even aggrieved consumer
can file complaint where the adulterated drug was sold. It is the consumer who
ultimately bears the brunt of such drug. In the absence prosecution of seller, who may
be protected under Section 19(3) of the Act, the consumer will be forced to file the
complaint at the place where the drug in question was manufactured which may be far
off place. Moreover even though initially the prosecution may be launched against
both, the manufacturer and the seller, but in the course of trial, the seller may
establish that he is protected under Section 19(3) of the Act and, in such
eventualities, the trial against the manufacturer may also be questioned on this count.
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15. In view of the above, I have no reason whatsoever to come to a different

conclusion than the one which was arrived at in Smt. Sunder Ben v. State of Maha
rashtra (supra). Accordingly, I do not find any merit in this revision and the revision
is, hereby, dismissed.
16. Revision dismissed.
———
Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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2012 SCC OnLine Gau 359 : 2012 Cri LJ 2306
Gauhati High Court

(BEFORE I.A. ANSARI, J.)
Piyush Chamaria
Versus
Hemanta Jitani & Ors.
Criminal Petition No. 257 of 2008
Decided on March 14, 2012
Page: 2307
ORDER
1. By order, dated 09-04-2008, passed in the Complaint Case No. 175-C/2008,
learned Additional Chief judicial Magistrate, Tinsukia, while directing issuance of
summons against the three opposite parties herein, who were arraigned, in the
complaint, as accused Nos. 1, 2 and 3 respectively, further directed a search warrant
to be issued, in terms of the provisions Section 97 Cr. P.C. for recovery of the
complainant petitioner's daughter, Shravya Chamaria, from the custody of the accused
-opposite party No. 3, namely, Sri Deokinandan Bajaj, and directed the Officer-in-
Charge of the Police Station concerned to execute the search warrant. However, as the
search warrant was not executed on the ground that the child, in question, was within
the territorial jurisdiction of the district of Nagaon, the learned Magistrate passed
another order, on 18-04-2008, directing the search warrant to be issued to the
Superintendent of Police, Nagaon, for execution. Aggrieved by the two orders
aforementioned, namely, the order, dated 09-04-2008, and the order, dated 18-04-
2008, the accused-opposite party herein filed a revision petition challenging therein
not only the said two orders, dated 09-04-2008 and 18-04-2008, but also the very act
of taking of the cognizance of the offences, as a whole, by the learned Additional Chief
Judicial Magistrate, Tinsukia. This revision gave rise to Criminal Revision No. 10
(2)/2008.
2. By judgment and order, dated 01-08-2008, as the learned Sessions Judge,
Tinsukia, has set aside the order, dated 09-04-2008, to the extent that the same
directed issuance of search warrant under Section 97 Cr. P.C., the present petitioner,
who is, admittedly, the father of the child, in question, has come to this Court with the
help of the present application, made under Section 482 Cr. P.C., seeking to get set
aside the judgment and order, dated 01-08-2008, aforementioned.
3. I have heard Mr. P. Bora, learned counsel, for the complainant-petitioner, and Mr.
K. Agarwal, learned counsel appearing on behalf of the accused-opposite party.
4. Before I enter into the merit of the application, made under Section 482 Cr. P.C.,
it is appropriate to refer to certain relevant and material aspects of law. To begin with,
Section 361 IPC, which deals with kidnapping from lawful guardianship, needs to be
taken note of. The relevant provisions of Section 361 IPC, reads, “Whoever takes or
entices any minor under sixteen years of age, if a male, or under eighteen years of
age, if a female, ********, out of die keeping of the
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made in the complaint by the complainant-petitioner, are true and determine, on such
assumption, if the issuance of search warrant, for recovery of the said child, was illegal
and/or interference therewith by the learned Sessions Judge was justified and is
sustainable.
23. The reasons, assigned by the learned Sessions Judge for setting aside the order
directing issuance of search warrant (as can be discerned from the judgment and
order, dated 01-08-2008) read as under:
“But the Ld. Magistrate resorted to the provision of Section 97 Cr. P.C. without
recording his satisfaction that Miss Shravya Chamaria, the daughter of the
respondent was confined by revisionist No. 3 in such circumstances which amount
to an offence. As per allegations of the respondent, the child was not kidnapped by
the revisionist No. 3. The child was allegedly kidnapped by the revisionists Nos. 1
and 2 and the child was handed over to the revisionist No. 3. the simply kept the
child in his custody as her mother is no longer alive, as her father and grand
parents were in jail. So, the revisionist No. 3 is the only person alive to take the
custody of the child. Even if the child was kidnapped by some persons and gave her
to the revisionist No. 3, who is her maternal grand father, it can not be said that he
wrongfully confined the child. What he did, he did out of his obligation as the
grandfather of the child. The revisionist No. 3 did not deny that the child was in his
custody which implies that he had no intention to wrongfully confine the child. Then
again, it has not been alleged that the revisionist No. 3 refused to hand over the
child to the respondent. No such allegation is found.
We do not know what led the Ld. Magistrate to believe that the child was
wrongfully confined by the revisionist No. 3 and prompted him to issue the search
warrant for recovery of the child specially when the child in question is aged about
2½ years who cannot speak out her mind.
In my view, if the child in question was kidnapped and wrongfully confined by
the revisionist No. 3, the respondent could/should have approached this Court
under Section 6 of the Hindu Minority and Guardianship Act as because a Criminal
Court cannot determine the question of guardianship of a minor child.
This being the position, without referring to the merit of the case, the order
passed U/S 97 Cr. P.C. by the Ld. Magistrate is ex facie without jurisdiction and
hence, bad in law.”
24. I have already pointed out above that I what Section 97 requires is
‘confinement’ of
Page: 2312
a person, which amounts to an offence, and it is not necessary that the person, who,
ultimately, holds the custody of the minor is innocent or not. If a Magistrate is
satisfied that a minor has been wrongfully confined, it is his duty to issue search
warrant for recovery of such a child even from the custody of such a person, who may
hold the custody of the child innocently or without knowing the reality.
25. In the case at hand, however, the complainant has categorically and, in no
uncertain words, stated that he did, on phone, talk to accused-opposite party No. 3
and though the accused-opposite party No. 3 admitted that he was keeping the child,
in question, in his custody, yet the accused-opposite party No. 3 refused to return the
daughter of the complainant to him. In such circumstances, it cannot be prima facie
said that the accused-opposite party No. 3 had been holding the custody of the said
child innocently, because, in the light of the definition of Section 361 IPC including the
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impugned judgment and order, dated 01-08-2008, passed by the learned Sessions
Judge, Tinsukia, shall accordingly stand set aside and the orders, issued by the
learned Additional Chief Judicial Magistrate, Tinsukia, are hereby upheld.
31. Before parting with this application, it may be pointed out that Mr. K. Agarwal,
learned counsel, has submitted that the accused-opposite party No. 3 would produce
the child in the Court of learned Additional Chief Judicial Magistrate, Tinsukia. Though
Mr. P. Bora, learned counsel for petitioner, vehemently objects to the submission so
made, this Court allows, as a temporary measure, the accused-opposite party No. 3 to
produce the child in the Court of learned Additional Chief Judicial Magistrate, Tinsukia,
in connection with the complaint, in question, on 26-03-2012, and till then, the search
warrant, in question, shall be kept in abeyance. Upon production of the child, in
question, the learned Court below shall, determine, in the light of the facts as may be
available on record and the law relevant thereto, the question of further custody of the
child.
32. It is, however, made clear that whatever observations have been made by this
Court are expressed on the basis of the materials on record and shall be treated as
tentative in nature and shall not in any way, affect the trial of the accused persons.
With the above observations and directions, this criminal petition shall stand disposed
of.
33. Petition allowed.
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Modak, (2008) 1 SCC 1 paras 61, 62 & 63.
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Printed For: Niharika Deval, Vivekananda Institute of Professional Studies
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Page 1 Friday, October 20, 2023

Orissa High Court

Duryodhan Mahanta … Petitioner;

4. According to learned counsel for petitioner, exercise of jurisdiction u/S. 97 of the

In the High Court of Delhi

EX. RECT./GD Vinod Kumar … Petitioner;

The Judgment of the Court was delivered by

SWATANTER KUMAR, J.— Cause of action determines the Court of

provisions of Sections 16 to 20 of the Code of Civil Procedure, Article

stricto senso. It is a settled principle of law that provisions of the Civil

2. To appropriately discuss the rationale between the principle of

High Court exercising jurisdiction in relation to the territories within

were taken place at Gauwahati or Shillong i.e. beyond the territorial

41. Resultantly and in view of the above ennunciated principles of

W.Ps. dismissed, W.P. (C) No. 16083/2006 disposed of.

2022 SCC OnLine Del 2803

In the High Court of Delhi at New Delhi

H.S. Rai … Petitioner;

8. In the light of above decisions if the claim of petitioners is examined, the

1954 SCR 738 : AIR 1954 SC 207 : (1954) 25 ITR 167

In the Supreme Court of India

Civil Appeal No. 118 of 1952

Courts of issuing directions, orders, or writs primarily for the

appropriate Commissioner of Income Tax to refer to the High Court any

2 ILR 11 Cal 275

3 AIR 1953 SC 210

4 Vide in this connection Beasant v. The Advocate General of Madras, 46 IA 176

5 AIR 1953 SC 210, 214

1960 SCC OnLine SC 12 : (1961) 2 SCR 828 : (1961) 2 SCJ 235 :

In the Supreme Court of India

LT. COL. KHAJOOR SINGH … Appellant;

authority or in a given case to any Government, writs or orders there

affected can have no relevance on the question of the High Court's

territories if he resides there permanently or temporarily. So far as an

5 (1954) SCR 738

9 AIR (1960) Bom 353

10 (1953) SCR 1144

11 (1954) SCR 738

In the High Court of Allahabad

Writ - A No. 2071 of 2017

proceedings was not maintainable before this Court as no part of the

stated to be coming up in a fairly large number of matters.

1996 SCC OnLine Bom 651 : 1997 Cri LJ 1269

Bombay High Court

M/s. Mediscarch Laboratories and others … Petitioners;

15. In view of the above, I have no reason whatsoever to come to a different

2012 SCC OnLine Gau 359 : 2012 Cri LJ 2306

Gauhati High Court

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