Prafulla Chandra Ghadei Vs. Union of Republic of India - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - before instruction of section 14(3) by the act 45 of 1978 in the code of criminal procedure, 1973, as well as under the old code, the question relating to jurisdiction of revisional court/appellate court or trial court vis-a-vis such magistrate was considered in several cases and before embarking upon a discussion regarding interpretation of section 14(3) vis-a-vis section 177 as well as provisions regarding appeal or revision, it is necessary to refer to such decisions, though not cited it at the bar. ..a plain reading of the aforesaid relevant provision clearly indicates in plain and simple terms the intention of the legislature.orderp.k. misra, j.1. in this application for bail under section 439 of the code of criminal procedure, 1973 (hereinafter referred to as the 'code'), an important question of law pertaining to jurisdiction is raised.2. the petitioner has been arrested in connection with s.p.e. case no. 44/94. his earliar application for bail numbered as criminal misc. case no. 1715 of-1996 was disposed of with an observation that it .would be open to the petitioner to move for bail afresh before the appropriate authority after substantial progress had been made in the investigation. thereafter, the petitioner filed an application before the additional chief judicial magistrate, bhubaneshwar. the said application have been rejected, the petitioner filed an application before the 2nd additional sessions judge, bhubaneswar. during hearing of the aforesaid bail application, the question of territorial jurisdiction of the 2nd additional sessions judge, bhubaneswar, to entertain the bail application was raised on behalf of the prosecution. the 2nd additional sessions judge considered the question of jurisdiction at the threshold and came to hold that since the occurrence had taken place within tomka police station which was beyond the territorial jurisdiction of the 2nd additional sessions judge, bhubaneswar, he had no jurisdiction to entertain the bail application and accordingly disposed of the same without considering the bail application on merit hence, the present applications filed on behalf of the accused-petitioner.3. the learned counsel appearing for the petiticoei submitted that charge-sheet has been filed against some of the co-accused persons, inter alia, under section 120b/302, indian penal code, and the case has already been committed to the court of the sessions judge, puri, who in turn, has allotted the said sessions case to the 2nd additional sessions judge, bhubaneswar, for trial and as such, it should be taken that the 2nd additional sessions judge, bhubaneswar, has jurisdiction. he further submitted that since the question of alleged conspiracy is involved and since the petitioner as a member of the orissa legislative assembly was staying at bhubaneswar at the time of alleged conspiracy, it can be held that the 2nd additional sessions judge at bhubaneswar has jurisdiction to try the case ultimately.the learned public prosecutor appearing on behalf of the c.b.i, has submitted that the question as to whether the alleged conspiracy took place within the territorial jurisdiction of the 2nd additional sessions judge of bhubaneswar, cannot be predicated at this stage and since the occurrence is alleged to have taken place within tomka police station which comes within the jurisdiction of the sessions division of cuttack, the observation of the 2nd additional sessions judge, bhubaneswar, that he has no territorial jurisdiction to try the case is correct. he also brought to my notice the fact that after the case was committed to the court of the sessions judge, puri, and thereafter placed before the 2nd additional sessions judge, bhubaneswar, the then 2nd additional sessions judge returned the file to the sessions judge, puri, entertaining doubt regarding territorial jurisdiction.4. there is no dispute that the additional chief judicial magistrate, bhubaneswar, in the district of puri, has been established as a special court in exercise of power conferred by the proviso to sub-section (1) of section 11 of the code for the purpose of trial of delhi special police establishment (c.b.i.) cases under the delhi special police establishment act, 1946, having jurisdiction throughout the state. there is no dispute that the additional chief judicial magistrate, bhubaneswar, comes within the purview of the court of session of puri sessions division. in view of the notification under section 11(1). proviso, there cannot be any doubt that the additional chief judicial magistrate, bhubaneswar, has the jurisdiction to try cases investigated under the delhi special police establishment act, 1946, even in cases where the occurrence has taken place outside the ordinary territorial jurisdiction of the additional chief judicial magistrate, bhubaneswar. the question arises as to which would be the competent sessions judge to try the offences and to which sessions court the case should be committed, where the offence investigated by the c.b.i. is exclusively triable by the court of sessions. there is no difficulty in relation to such offences committed within the territorial jurisdiction of puri sessions division, but the difficulty arises in respect of such offences committed beyond the ordinary territorial jurisdiction of the sessions judge, puri. in the present case, it is submitted by the learned public prosecutor appearing on behalf of the c.b.i, that in view of the provision contained in section 177 of the code, the sessions judge, puri has no territorial jurisdiction to try the offences. section 177 reads as follows:-177. ordinary place of inquiry and trial:-every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. if only section 177 were to apply, there cannot be any doubt that the court of session of puri sessions division can have no territorial jurisdiction to try the offences. however, section 14(3) of of the code is of much relevance in the present case. section 14(3) runs as follows:-14. local jurisdiction of judicial magistrate.- xx xx xx xx xx(3) where the local jurisdiction of a magistrate appointed under section 11 or section 13 or section 18, extends to an area beyond the district, or the metropolitan area as the case may be, in which he ordinarily holds court, any reference in this code to the court of session, chief judicial magistrate or the chief metropolitan magistrate shall, in relation to such magistrate, throughout the area within his local jurisdiction, be construed, unless the context otherwise requires, as a reference to the court of session, chief judicial magistrate, or chief metropolitan magistrate, as the case may be, exercising jurisdiction in relation to said district or metropolitan area.5. the question of jurisdiction of sessions court vis-a-vis such a magistrate exercising jurisdiction beyond the district would ordinarily crop up in the matters relating to trial, appeal or revision or bail. before instruction of section 14(3) by the act 45 of 1978 in the code of criminal procedure, 1973, as well as under the old code, the question relating to jurisdiction of revisional court/appellate court or trial court vis-a-vis such magistrate was considered in several cases and before embarking upon a discussion regarding interpretation of section 14(3) vis-a-vis section 177 as well as provisions regarding appeal or revision, it is necessary to refer to such decisions, though not cited it at the bar.6. while considering the question of filing appeal or revision against decisions of such magistrate exercising jurisdiction over areas beyond the district coming under their ordinary jurisdiction, the earliest decision on the point appears to be that of the division bench of the madras high court reported in (1907) ilr 30 mad 136 (valia ambu podaval v. emperor) (1906) 4 cri lj 443. in the said decision, the accused persons were tried and convicted by the assistant first class magistrate of malabar under sections 143 and 147. indian penal code, which had been committed within the local limits of the jurisdiction of the sessions court, north malabar. the assistant first class magistrate had his headquarters at calicut situated in the local limits of south malabar sessions court, but he had criminal jurisdiction over the whole district comprising of the two sessions divisions of north and south malabar. the accused persons initially appealed to the court of session, north malabar, as the offences had been committed within the local limits of the said sessions court. but the sessions judge rejected the appeal on the ground that he had no jurisdiction and the sessions court within whose jurisdiction the headquarters of the magistrate situate was the proper appellate authority. the accused persons then appealed to the sessions court of south malabar, but ironically enough the letter rejected the appeal oil the ground that he had no jurisdiction to hear the appeal as the offences were committed within the jurisdiction of north malabar. resolving the aforesaid conundrum, the division bench of the madras high court observed as follows :-the magistrate, against whose decision the appeal is to be preferred, has his headquarters in calicut which is within the local limits of the south malabar sessions division, though he is authorised to try offences throughout the whole district, including cases arising within the sessions division of north malabar. it must, we think be held that appeals against his decisions lie to the sessions judge of south malabar, irrespective of the place where the offence was committed.section 408, criminal procedure code, referring to appeals from first-class magistrates, merely states that the appeal lies 'to the court of sessions' without any further explanatory words.section 435, however which deals with the powers of revision of sessions courts, enacts that the sessions judge may call for and examine the records of any inferior criminal court 'situate' within the local limits of his jurisdiction. the word 'situate' means fixed or located, when applied to a court it must be taken to refer to the place where the court ordinarily sits. in the absence of any indication to the contrary in the criminal procedure code, the principle thus laid down in regard to the analogous powers of revision under section 435, should be followed in the case of appeals also. we hold therefore that the appeals should have been received by the sessions court of south malabar, and direct that they be now received by that court and dealt with according to law.the aforesaid decision though distinguished in a subsequent decision of the madras high court reported in (1912) 13 cri lj 850 (public prosecutor v. sadananda patnaik) (17 ind cas 786) was later followed by the division bench decision of the lahore high court reported in air 1918 lahore 196 : 1920 (19) cri lj 310 (hira lal v. emperor). subsequently, the aforesaid division bench decisions of the madras high court reported in (1907) ilr 30 mad 136 and the lahore high court reported in air 1918 lah 196 : 1920 (19) cri lj 310, were followed by the allahabad high court in the decision reported in air 1952 all 193 : 1952 cri lj 387, (shori lal v. the state) while considering the question of filing of appeal from the judgments of magistrate exercising jurisdiction beyond the limits of the district, but some reservations were expressed in connection with the question of commitment.another single judge of allahabad high court, however, without noticing the aforesaid decision which had been rendered earlier took a contrary view and preferred to follow the ratio of the decision of the madras high court reported in (1912) 13 cri lj 850, and held that the expression 'situated within the local limits' as contained in section 435 of the code of criminal procedure, means an inferior court exercising jurisdiction within the local limits of its jurisdiction.the decision of the madras high court reported in(1907)ilr 30 mad 136 and the two decisions of the allahabad high court reported in air 1952 all 70:(1952 cri lj 199) and air 1952 all 193: (1952 cri lj 387) (referred to supra) were considered in the decision reported in 1962 (1) cri lj 670 (babulal v. state) and the rajasthan high court dissenting from the decision reported in air 1952 all 70 : (1952 cri lj 199), preferred to follow the decision of the madras high court reported in (1907) ilr 30 (mad) 136 and the decision of allahabad high court reported in air 1952 all 193 : (1952 cri lj 387).similar question again cropped up in the decision reported in air 1962 ker 242 : 1962 (2) cri lj 189 (2) (k.c. paipal v. the state of kerala) and the learned judge referring to the decision of the madras high court reported in (1907) ilr 30 mad 136 and of the allahabad high court reported in air 1952 all 70 : 1952 cri lj 199, preferred to agree with the latter view and held that an appeal from a case tried by a magistrate having jurisdiction over more than one sessions division lay to the sessions court within whose jurisdiction the offence was committed.without referring to any decision, it was held in the decision reported in air 1953 madh bha 156 : (1953 cri lj 1027)(rahim poonaji v. abdul rahim) that the jurisdiction to entertain a revision application by a sessions judge is determined by reference to the situation of the court by which the order sought to be revised is passed and not the place of offence.all the aforesaid cases, except the one reported in air 1952 all 193 : (1952 cri lj 397), were considered by the division bench decision of the punjab and haryana high court reported in (1973) 75 pun lr 541 (the state of haryana v. ram nivas birla alias r.n. birla) and it was held the revision before the sessions judge under section 435 of the old code would lie to the sessions judge within whose territorial jurisdiction, the court of the magistrate is situate. the principle of law laid down in (1907) lj 310) (misprinted in this decision as air 1928 lah 196); air 1953 madh bha 156: (1953 cri lj 1027) and 1962 (1) cri lj 670 (raj) was approved and the decisions reported in (1912) 13 cri lj 850 (mad), air 1952 all 70: (1952 cri lj 199) and air 1962 ker 242 :(1962 (2) cri lj 189 (2)) were disseented from.similar question cropped up in the decision reported in (1976) 17 guj lr 412, (d.c. varma v. bhagwanji virji). differing from the decision reported in (1907) ilr 30 mad 136 and air 1952 all 193 : (1952 cri lj 387), and following the decision reported in air 1952 all 70:(1952 cri lj 199) and (1964) 66 bom lr 17 (narayanadas kedarnath daga v. state of maharashtra), it was held while interpreting section 11 of the new code of criminal procedure, 1973, that revision to the sessions judge under section 397 can be filed in the sessions court within whose territorial jurisdiction the offence had been committed. the said decision was rendered before introduction of sub-section (3) of section 14 of the code of criminal procedure, 1973.in the decision reported in 1979 cri lj 377 (madh pra), (the state of madhya pradesh v. kailash chandra berma), three questions were referred to the division bench for consideration. the third question which is relevant for this case was as follows: (at p 378 of cri lj) :-(3) if the state government and the high court are so empowered to issue notifications, then what should be the forum of appeal against the judgments and orders passed by such magistrate? after referring to the divergence of views expressed by the different high courts regarding the forum of appeal or revision against the decision of the special magistrate exercising powers over more than one sessions division, the division bench observed as follows (1977 cri lj 377 at p 380) :-in the present cases, shri l.s. nihalani was the judicial magistrate, first class of bhopal and each of 20 other districts and shri d.s. pathak was the judicial magistrate first class of sarguja and each of 23 other districts. both were especially empowered to try cases instituted by the special police establishment arising in those districts with headquarters at indore and jabalpur respectively shri i.s. nihalani was subordinate to the sessions judge, bhopal, and shri d.s. pathak was subordinate to the sessions judge, ambikapur of sarguja district in respect of offences respectively committed in those districts. though the respective headquarters of these two magistrates were at indore and jabalpur, they functioned as judicial magistrates, first class, of bhopal and sarguja respectively in respect of these cases. therefore, the appeals against conviction by these two magistrates would respectively lie before the sessions judge at bhopal and the sessions judge at ambikapur, i.e., before the sessions judges in respect of offences committed within their respective territorial jurisdictions. question no. 3 is answered accordingly.subsequently, in the decision reported in 1980 jab lj 586 (chhote khan v. state of m.p.), g.l. oza, j. (as his lordship then was) without noticing the aforesaid decision followed the decisions reported in (1907) ilr 30 mad 136 and ilr (1952) madh bha 319: air 1953 madh bha 156 : 1953 cri lj 1027 (rahim poonaji v. abdul rahim).the decisions under the old code of criminal procedure, 1898 and prior to introduction of section 14(3) under the new code by act 45 of 1978, thus manifest a clear division of opinion in several high courts or sometimes even in the same high court.7. after introduction of section 14(3) by act 45 of 1978, the decisions appear to be few and far between. in a division bench decision of the patna high court reported in ilr (1983) pat 689 (jalauddin alias jalal v. the state of bihar) while interpreting section 14(3) of the code of criminal procedure, 1973, it was held:-. even on a plain reading of this sub-section it appears that the word 'said district' in the last part of the sub-section refers to 'any area beyond the district' in which the magistrate ordinarily holds court. therefore, reference to the said district in the sub-section would mean the district which is in an area beyond the district in which the magistrate ordinarily holds court. i am, therefore, of the view that in the instant case the appeal did lie before the learned sessions judge, aurangabad and he was in error in holding that the appeal should have been filed before the sessions judge, patna. in the decision of the rajasthan high court, reported in 1995 cri lj 3394 (raj) (radhesh chandra v. state of rajasthan) arising out of an investigation made by the c.b.i, almost on similar circumstances, it was held that even if the special court or magistrate eslablished under section 11(1), proviso had jurisdiction throughout the state, for the purpose of committing a case to the court of session, the ordinary principle as envisaged in section 177 of the code is to be followed and the case should be committed to the sessions judge having territorial jurisdiction. in slating so, the learned single judge followed a division bench decision of the very same high court in d.b. criminal reference no. 1 of 1981 (state of rajasthan v. babu khan). the relevant observations of the said division bench decision, as extracled in paragraph 15 of the decision of the learned single judge 'are quoted below (at p. 3399 of cri lj) :-however, when the question comes up for trial of a case, which is exclusively triable by the sessions court, normally the principle that the sessions court of that area within which the offence was committed should try the case, should be followed. it was to ensure this that the legislature used the word 'unless the context otherwise requires', in sub-clause (3) of section 14.in our opinion, the context in the case, where reference is made to the sessions court requires that the sessions court must be of the area in whose jurisdiction the offence is committed or as required by section 181(1), cr.p.c. either the offence is committed or the accused is found.we have, therefore, no hesitation in holding that on account of use of word phrase 'unless context' otherwise requires' reference to the court of sessions in the cases of railway magistrate would mean the sessions court within whose jurisdiction or revenue area, as the case may be, the offence was committed or if it falls within section 181(1) when the offence was committed or the accused was found, as the case may be.relying upon the aforesaid two decisions, it is vehemently contended by the learned public prosecutor that the sessions court at puri and consequently the 2nd additional sessions judge, bhubaneswar, had no jurisdiction to deal with the matter.8. the interpretation given by the division bench decision of patna high court in ilr (1983) pat 689 appears to be against the plain and ordinary meaning of section 14(3) of the code. for the purpose of facilitating construction omitting the unnecessary words for the purpose of this case, the relevant portions of section 14(3) can be extracted as follows:-. where the local jurisdiction of a magistrate...extends to an area beyond the district...i in which he ordinarily holds court, any reference in this code to the court of session ...shall, in relation to such magistrate throughout the area within his local jurisdiction, be construed, unless the context otherwise requires, as a reference to the court of session...exercising jurisdiction in relation to the said district.... a plain reading of the aforesaid relevant provision clearly indicates in plain and simple terms the intention of the legislature. it is evident that the court of session as referred to in sub-section (3) referred to the court of session exercising jurisdiction in relation to the district in which the concerned magistrate ordinarily holds court. the expression '...exercising jurisdiction in relation to the said district' has reference to the expression'...the district in which he (meaning thereby, the magistrate) ordinarily holds court'. the emphasis is on the expression 'said district' which is relatable to the expression 'district' in the earlier part and not to 'any area beyond the district' as construed by the patna high court. the interpretation of the patna high court would have been correct if the expression 'such area' would have been used instead of the expression 'such district'. having regard to the plain meaning of the expression used in sub-section (3) of section 14, express my inability, with respect, to agree with the views expressed in the aforesaid division bench decision of the patna high court. to interpret otherwise, would be stretching the plain language of sub-section (3).in the decision reported in 1995 cri lj 3394 (raj) (supra), by referring to the expression '... unless the context otherwise requires', it was interpreted that reference to the court of session was in relation to the relevant court of session having territorial jurisdiction over the matter. in my opinion, the aforesaid construction put by the rajasthan high court is not acceptable. on the other hand, as clear from section 177 of the code itself, the provision contained therein is to be followed ordinarily. however, when exceptions are provided in some other provisions of the code, the principle envisaged in section 177 is not to govern the place of trial. in my considered opinion, section 14(3) has carved out a niche for itself and should be considered as an exception to the provision contained in chapter xiii including section 177 of the code. as already indicated, even when section 14(3) was not there in the statute book, many high courts had, while considering the question of appeal or revision, held that the appeal or revision should be filed before the sessions court within whose jurisdiction the court of such magistrate was situate. i am in respectful agreement with the views expressed on this score by the decisions reported in (1907) ilr 30 mad 136; air 1918 lah 196 : (1920 (19) cri lj 310); air 1952 all 193 : (1952 cri lj 387); air 1953 madh bha 156: (1953 cri lj 1027); 1962(1) cri lj 670 (raj), (1973) 75 punjab lr 541 and 1980 jab lj 586, as representing the correct law, which appears to have received the legislative sanction by introduction-of-section 14(3) by act 45 of 1978. if for the purpose of appeal or revision, such magistrate is subject to the jurisdiction of the sessions court within whose territorial jurisdiction the magistrate holds court or is situate, the same principle should be extended to question of commitment to court of session for trial. it is difficult to envisage that it is the intention of the legislature that one sessions court would be trial court to which the case will be committed by the magistrate, whereas another sessions court would be the revisional court before which revisions against orders of such magistrate (including the order of commitment, if need be) will be filed.9. applying the aforesaid interpretation to the facts of the present case, it is evident that that jurisdiction of the additional chief judicial magistrate appointed under section 11 extends to an area beyond the district of puri in which the magistrate ordinarily holds court and the reference to court of session so far as such magistrate is concerned, is the 'court of session' exercising jurisdiction relating to the said district, that is to say, the district of puri. in such view of the matter, the case so far as it related to other accused persons had rightly been committed to the sessions judge, puri, and as the matter had been placed by the sessions judge, puri, before the 2nd additional sessions judge, bhubaneswar, who comes within the sessions division of puri, the latter should not have returned the file to the sessions judge. in such view of the matter, the observations of the 2nd additional sessions judge, bhubaneswar, that he had no jurisdiction to try the offences or to consider the question of bail is erroneous.10. since the bail application of the petitioner has not been considered on merit by the 2nd additional-:sessions judge on the ground of lack of territorial jurisdiction, i have confined myself to the aforesaid question of jurisdiction alone. the counsels appearing for both parties have also confined their submissions to the question of jurisdiction only. i, therefore, direct that the bail petition numbered as criminal misc. case no. 427 of 1996 shall now be considered on merit by the 2nd additional sessions judge, bhubaneswar, as expeditiously as possible.the criminal miscellaneous case is disposed of accordingly..

Judgment:
ORDER

P.K. Misra, J.

1. In this application for bail under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code'), an important question of law pertaining to jurisdiction is raised.

2. The petitioner has been arrested in connection with S.P.E. case No. 44/94. His earliar application for bail numbered as Criminal Misc. Case No. 1715 of-1996 was disposed of with an observation that it .would be open to the petitioner to move for bail afresh before the appropriate authority after substantial progress had been made in the investigation. Thereafter, the petitioner filed an application before the Additional Chief Judicial Magistrate, Bhubaneshwar. The said application have been rejected, the petitioner filed an application before the 2nd Additional Sessions Judge, Bhubaneswar. During hearing of the aforesaid bail application, the question of territorial jurisdiction of the 2nd Additional Sessions Judge, Bhubaneswar, to entertain the bail application was raised on behalf of the prosecution. The 2nd Additional Sessions Judge considered the question of jurisdiction at the threshold and came to hold that since the occurrence had taken place within Tomka Police Station which was beyond the territorial jurisdiction of the 2nd Additional Sessions Judge, Bhubaneswar, he had no jurisdiction to entertain the bail application and accordingly disposed of the same without considering the bail application on merit hence, the present applications filed on behalf of the accused-petitioner.

3. The learned counsel appearing for the petiticoei submitted that charge-sheet has been filed against some of the co-accused persons, inter alia, under Section 120B/302, Indian Penal Code, and the case has already been committed to the Court of the Sessions Judge, Puri, who in turn, has allotted the said Sessions Case to the 2nd Additional Sessions Judge, Bhubaneswar, for trial and as such, it should be taken that the 2nd Additional Sessions Judge, Bhubaneswar, has jurisdiction. He further submitted that since the question of alleged conspiracy is involved and since the petitioner as a Member of the Orissa Legislative Assembly was staying at Bhubaneswar at the time of alleged conspiracy, it can be held that the 2nd Additional Sessions Judge at Bhubaneswar has jurisdiction to try the case ultimately.

The learned Public Prosecutor appearing on behalf of the C.B.I, has submitted that the question as to whether the alleged conspiracy took place within the Territorial jurisdiction of the 2nd Additional Sessions Judge of Bhubaneswar, cannot be predicated at this stage and since the occurrence is alleged to have taken place within Tomka Police Station which comes within the jurisdiction of the Sessions Division of Cuttack, the observation of the 2nd Additional Sessions Judge, Bhubaneswar, that he has no territorial jurisdiction to try the case is correct. He also brought to my notice the fact that after the case was committed to the Court of the Sessions Judge, Puri, and thereafter placed before the 2nd Additional Sessions Judge, Bhubaneswar, the then 2nd Additional Sessions Judge returned the file to the Sessions Judge, Puri, entertaining doubt regarding territorial jurisdiction.

4. There is no dispute that the Additional Chief Judicial Magistrate, Bhubaneswar, in the district of Puri, has been established as a Special Court in exercise of power conferred by the Proviso to Sub-section (1) of Section 11 of the Code for the purpose of trial of Delhi Special Police Establishment (C.B.I.) cases under the Delhi Special Police Establishment Act, 1946, having jurisdiction throughout the State. There is no dispute that the Additional Chief Judicial Magistrate, Bhubaneswar, comes within the purview of the Court of Session of Puri Sessions Division. In view of the notification under Section 11(1). Proviso, there cannot be any doubt that the Additional Chief Judicial Magistrate, Bhubaneswar, has the jurisdiction to try cases investigated under the Delhi Special Police Establishment Act, 1946, even in cases where the occurrence has taken place outside the ordinary territorial jurisdiction of the Additional Chief Judicial Magistrate, Bhubaneswar. The question arises as to which would be the competent Sessions Judge to try the offences and to which Sessions Court the case should be committed, where the offence investigated by the C.B.I. is exclusively triable by the Court of Sessions. There is no difficulty in relation to such offences committed within the territorial jurisdiction of Puri Sessions Division, but the difficulty arises in respect of such offences committed beyond the ordinary territorial jurisdiction of the Sessions Judge, Puri. In the present case, it is submitted by the learned Public Prosecutor appearing on behalf of the C.B.I, that in view of the provision contained in Section 177 of the Code, the Sessions Judge, Puri has no territorial jurisdiction to try the offences. Section 177 reads as follows:-

177. Ordinary place of inquiry and trial:-Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.

If only Section 177 were to apply, there cannot be any doubt that the Court of Session of Puri Sessions Division can have no territorial jurisdiction to try the offences. However, Section 14(3) of of the Code is of much relevance in the present case. Section 14(3) runs as follows:-

14. Local jurisdiction of Judicial Magistrate.-

xx xx xx xx xx(3) Where the local jurisdiction of a Magistrate appointed under Section 11 or Section 13 or Section 18, extends to an area beyond the district, or the metropolitan area as the case may be, in which he ordinarily holds Court, any reference in this Code to the Court of Session, Chief Judicial Magistrate or the Chief Metropolitan Magistrate shall, in relation to such Magistrate, throughout the area within his local jurisdiction, be construed, unless the context otherwise requires, as a reference to the Court of Session, Chief Judicial Magistrate, or Chief Metropolitan Magistrate, as the case may be, exercising jurisdiction in relation to said district or metropolitan area.

5. The question of jurisdiction of Sessions Court vis-a-vis such a Magistrate exercising jurisdiction beyond the district would ordinarily crop up in the matters relating to trial, Appeal or Revision or bail. Before instruction of Section 14(3) by the Act 45 of 1978 in the Code of Criminal Procedure, 1973, as well as under the old Code, the question relating to jurisdiction of Revisional Court/Appellate Court or Trial Court vis-a-vis such Magistrate was considered in several cases and before embarking upon a discussion regarding interpretation of Section 14(3) vis-a-vis Section 177 as well as provisions regarding appeal or revision, it is necessary to refer to such decisions, though not cited it at the Bar.

6. While considering the question of filing appeal or revision against decisions of such Magistrate exercising jurisdiction over areas beyond the district coming under their ordinary jurisdiction, the earliest decision on the point appears to be that of the Division Bench of the Madras High Court reported in (1907) ILR 30 Mad 136 (Valia Ambu Podaval v. Emperor) (1906) 4 Cri LJ 443. In the said decision, the accused persons were tried and convicted by the Assistant First Class Magistrate of Malabar under Sections 143 and 147. Indian Penal Code, which had been committed within the local limits of the jurisdiction of the Sessions Court, North Malabar. The Assistant First Class Magistrate had his headquarters at Calicut situated in the local limits of South Malabar Sessions Court, but he had criminal jurisdiction over the whole district comprising of the two Sessions Divisions of North and South Malabar. The accused persons initially appealed to the Court of Session, North Malabar, as the offences had been committed within the local limits of the said Sessions Court. But the Sessions Judge rejected the appeal on the ground that he had no jurisdiction and the Sessions Court within whose jurisdiction the headquarters of the Magistrate situate was the proper appellate authority. The accused persons then appealed to the Sessions Court of South Malabar, but ironically enough the letter rejected the appeal oil the ground that he had no jurisdiction to hear the appeal as the offences were committed within the jurisdiction of North Malabar. Resolving the aforesaid conundrum, the Division Bench of the Madras High Court observed as follows :-

The Magistrate, against whose decision the appeal is to be preferred, has his headquarters in Calicut which is within the local limits of the South Malabar Sessions Division, though he is authorised to try offences throughout the whole district, including cases arising within the sessions division of North Malabar. It must, we think be held that appeals against his decisions lie to the Sessions Judge of South Malabar, irrespective of the place where the offence was committed.

Section 408, Criminal Procedure Code, referring to appeals from First-Class Magistrates, merely states that the appeal lies 'to the Court of Sessions' without any further explanatory words.

Section 435, however which deals with the powers of revision of Sessions Courts, enacts that the Sessions Judge may call for and examine the records of any inferior Criminal Court 'situate' within the local limits of his jurisdiction. The word 'situate' means fixed or located, when applied to a court it must be taken to refer to the place where the Court ordinarily sits. In the absence of any indication to the contrary in the Criminal Procedure Code, the principle thus laid down in regard to the analogous powers of revision under Section 435, should be followed in the case of appeals also. We hold therefore that the appeals should have been received by the Sessions Court of South Malabar, and direct that they be now received by that Court and dealt with according to law.

The aforesaid decision though distinguished in a subsequent decision of the Madras High Court reported in (1912) 13 Cri LJ 850 (Public Prosecutor v. Sadananda Patnaik) (17 Ind Cas 786) was later followed by the Division Bench decision of the Lahore High Court reported in AIR 1918 Lahore 196 : 1920 (19) Cri LJ 310 (Hira Lal v. Emperor). Subsequently, the aforesaid Division Bench decisions of the Madras High Court reported in (1907) ILR 30 Mad 136 and the Lahore High Court reported in AIR 1918 Lah 196 : 1920 (19) Cri LJ 310, were followed by the Allahabad High Court in the decision reported in AIR 1952 All 193 : 1952 Cri LJ 387, (Shori Lal v. The State) while considering the question of filing of appeal from the judgments of Magistrate exercising jurisdiction beyond the limits of the district, but some reservations were expressed in connection with the question of commitment.

Another single Judge of Allahabad High Court, however, without noticing the aforesaid decision which had been rendered earlier took a contrary view and preferred to follow the ratio of the decision of the Madras High Court reported in (1912) 13 Cri LJ 850, and held that the expression 'situated within the local limits' as contained in Section 435 of the Code of Criminal Procedure, means an inferior Court exercising jurisdiction within the local limits of its jurisdiction.

The decision of the Madras High Court reported in(1907)ILR 30 Mad 136 and the two decisions of the Allahabad High Court reported in AIR 1952 All 70:(1952 Cri LJ 199) and AIR 1952 All 193: (1952 Cri LJ 387) (referred to supra) were considered in the decision reported in 1962 (1) Cri LJ 670 (Babulal v. State) and the Rajasthan High Court dissenting from the decision reported in AIR 1952 All 70 : (1952 Cri LJ 199), preferred to follow the decision of the Madras High Court reported in (1907) ILR 30 (Mad) 136 and the decision of Allahabad High Court reported in AIR 1952 All 193 : (1952 Cri LJ 387).

Similar question again cropped up in the decision reported in AIR 1962 Ker 242 : 1962 (2) Cri LJ 189 (2) (K.C. Paipal v. The State of Kerala) and the learned Judge referring to the decision of the Madras High Court reported in (1907) ILR 30 Mad 136 and of the Allahabad High Court reported in AIR 1952 All 70 : 1952 Cri LJ 199, preferred to agree with the latter view and held that an appeal from a case tried by a Magistrate having jurisdiction over more than one Sessions Division lay to the Sessions Court within whose jurisdiction the offence was committed.

Without referring to any decision, it was held in the decision reported in AIR 1953 Madh Bha 156 : (1953 Cri LJ 1027)(Rahim Poonaji v. Abdul Rahim) that the jurisdiction to entertain a revision application by a Sessions Judge is determined by reference to the situation of the Court by which the order sought to be revised is passed and not the place of offence.

All the aforesaid cases, except the one reported in AIR 1952 All 193 : (1952 Cri LJ 397), were considered by the Division Bench decision of the Punjab and Haryana High Court reported in (1973) 75 Pun LR 541 (The State of Haryana v. Ram Nivas Birla alias R.N. Birla) and it was held the revision before the Sessions Judge under Section 435 of the old Code would lie to the Sessions Judge within whose territorial jurisdiction, the Court of the Magistrate is situate. The principle of law laid down in (1907) LJ 310) (Misprinted in this decision as AIR 1928 Lah 196); AIR 1953 Madh Bha 156: (1953 Cri LJ 1027) and 1962 (1) Cri LJ 670 (Raj) was approved and the decisions reported in (1912) 13 Cri LJ 850 (Mad), AIR 1952 All 70: (1952 Cri LJ 199) and AIR 1962 Ker 242 :(1962 (2) Cri LJ 189 (2)) were disseented from.

Similar question cropped up in the decision reported in (1976) 17 Guj LR 412, (D.C. Varma v. Bhagwanji Virji). Differing from the decision reported in (1907) ILR 30 Mad 136 and AIR 1952 All 193 : (1952 Cri LJ 387), and following the decision reported in AIR 1952 All 70:(1952 Cri LJ 199) and (1964) 66 Bom LR 17 (Narayanadas Kedarnath Daga v. State of Maharashtra), it was held while interpreting Section 11 of the new Code of Criminal Procedure, 1973, that revision to the Sessions Judge under Section 397 can be filed in the Sessions Court within whose territorial jurisdiction the offence had been committed. The said decision was rendered before introduction of sub-section (3) of Section 14 of the Code of Criminal Procedure, 1973.

In the decision reported in 1979 Cri LJ 377 (Madh Pra), (The State of Madhya Pradesh v. Kailash Chandra Berma), three questions were referred to the Division Bench for consideration. The third question which is relevant for this case was as follows: (at p 378 of Cri LJ) :-

(3) If the State Government and the High Court are so empowered to issue notifications, then what should be the forum of appeal against the judgments and orders passed by such Magistrate?

After referring to the divergence of views expressed by the different High Courts regarding the forum of appeal or revision against the decision of the Special Magistrate exercising powers over more than one Sessions Division, the Division Bench observed as follows (1977 Cri LJ 377 at p 380) :-

In the present cases, Shri L.S. Nihalani was the Judicial Magistrate, First Class of Bhopal and each of 20 other districts and Shri D.S. Pathak was the Judicial Magistrate First Class of Sarguja and each of 23 other districts. Both were especially empowered to try cases instituted by the Special Police Establishment arising in those districts with headquarters at Indore and Jabalpur respectively Shri I.S. Nihalani was subordinate to the Sessions Judge, Bhopal, and Shri D.S. Pathak was subordinate to the Sessions Judge, Ambikapur of Sarguja district in respect of offences respectively committed in those districts. Though the respective headquarters of these two Magistrates were at Indore and Jabalpur, they functioned as Judicial Magistrates, First Class, of Bhopal and Sarguja respectively in respect of these cases. Therefore, the appeals against conviction by these two Magistrates would respectively lie before the Sessions Judge at Bhopal and the Sessions Judge at Ambikapur, i.e., before the Sessions Judges in respect of offences committed within their respective territorial jurisdictions. Question No. 3 is answered accordingly.

Subsequently, in the decision reported in 1980 Jab LJ 586 (Chhote Khan v. State of M.P.), G.L. Oza, J. (as his Lordship then was) without noticing the aforesaid decision followed the decisions reported in (1907) ILR 30 Mad 136 and ILR (1952) Madh Bha 319: AIR 1953 Madh Bha 156 : 1953 Cri LJ 1027 (Rahim Poonaji v. Abdul Rahim).

The decisions under the old Code of Criminal Procedure, 1898 and prior to introduction of Section 14(3) under the new Code by Act 45 of 1978, thus manifest a clear division of opinion in several High Courts or sometimes even in the same High Court.

7. After introduction of Section 14(3) by Act 45 of 1978, the decisions appear to be few and far between. In a Division Bench decision of the Patna High Court reported in ILR (1983) Pat 689 (Jalauddin alias Jalal v. The State of Bihar) while interpreting Section 14(3) of the Code of Criminal Procedure, 1973, it was held:-. Even on a plain reading of this sub-section it appears that the word 'said district' in the last part of the sub-section refers to 'any area beyond the district' in which the Magistrate ordinarily holds court. Therefore, reference to the said district in the sub-section would mean the district which is in an area beyond the district in which the Magistrate ordinarily holds Court. I am, therefore, of the view that in the instant case the appeal did lie before the learned Sessions Judge, Aurangabad and he was in error in holding that the appeal should have been filed before the Sessions Judge, Patna.

In the decision of the Rajasthan High Court, reported in 1995 Cri LJ 3394 (Raj) (Radhesh Chandra v. State of Rajasthan) arising out of an investigation made by the C.B.I, almost on similar circumstances, it was held that even if the Special Court or Magistrate eslablished under Section 11(1), Proviso had jurisdiction throughout the State, for the purpose of committing a case to the Court of Session, the ordinary principle as envisaged in Section 177 of the Code is to be followed and the case should be committed to the Sessions Judge having territorial jurisdiction. In slating so, the learned single Judge followed a Division Bench decision of the very same High Court in D.B. Criminal Reference No. 1 of 1981 (State of Rajasthan v. Babu Khan). The relevant observations of the said Division Bench decision, as extracled in paragraph 15 of the decision of the learned single Judge 'are quoted below (at p. 3399 of Cri LJ) :-

However, when the question comes up for trial of a case, which is exclusively triable by the Sessions Court, normally the principle that the Sessions Court of that area within which the offence was committed should try the case, should be followed. It was to ensure this that the legislature used the word 'unless the context otherwise requires', in sub-clause (3) of Section 14.

In our opinion, the context in the case, where reference is made to the Sessions Court requires that the Sessions Court must be of the area in whose jurisdiction the offence is committed or as required by Section 181(1), Cr.P.C. either the offence is committed or the accused is found.

We have, therefore, no hesitation in holding that on account of use of word phrase 'unless context' otherwise requires' reference to the Court of Sessions in the cases of Railway Magistrate would mean the Sessions Court within whose jurisdiction or revenue area, as the case may be, the offence was committed or if it falls within Section 181(1) when the offence was committed or the accused was found, as the case may be.

Relying upon the aforesaid two decisions, it is vehemently contended by the learned Public Prosecutor that the Sessions Court at Puri and consequently the 2nd Additional Sessions Judge, Bhubaneswar, had no jurisdiction to deal with the matter.

8. The interpretation given by the Division Bench decision of Patna High Court in ILR (1983) Pat 689 appears to be against the plain and ordinary meaning of Section 14(3) of the Code. For the purpose of facilitating construction omitting the unnecessary words for the purpose of this case, the relevant portions of Section 14(3) can be extracted as follows:-. Where the local jurisdiction of a Magistrate...extends to an area beyond the district...i in which he ordinarily holds court, any reference in this Code to the Court of Session ...shall, in relation to such Magistrate throughout the area within his local jurisdiction, be construed, unless the context otherwise requires, as a reference to the Court of Session...exercising jurisdiction in relation to the said district....

A plain reading of the aforesaid relevant provision clearly indicates in plain and simple terms the intention of the legislature. It is evident that the Court of Session as referred to in sub-section (3) referred to the Court of Session exercising jurisdiction in relation to the district in which the concerned Magistrate ordinarily holds Court. The expression '...exercising jurisdiction in relation to the said district' has reference to the expression'...the district in which he (meaning thereby, the Magistrate) ordinarily holds court'. The emphasis is on the expression 'said district' which is relatable to the expression 'district' in the earlier part and not to 'any area beyond the district' as construed by the Patna High Court. The interpretation of the Patna High Court would have been correct if the expression 'such area' would have been used instead of the expression 'such district'. Having regard to the plain meaning of the expression used in sub-section (3) of Section 14, express my inability, with respect, to agree with the views expressed in the aforesaid Division Bench decision of the Patna High Court. To interpret otherwise, would be stretching the plain language of sub-section (3).

In the decision reported in 1995 Cri LJ 3394 (Raj) (supra), by referring to the expression '... unless the context otherwise requires', it was interpreted that reference to the Court of Session was in relation to the relevant Court of Session having territorial jurisdiction over the matter. In my opinion, the aforesaid construction put by the Rajasthan High Court is not acceptable. On the other hand, as clear from Section 177 of the Code itself, the provision contained therein is to be followed ordinarily. However, when exceptions are provided in some other provisions of the Code, the principle envisaged in Section 177 is not to govern the place of trial. In my considered opinion, Section 14(3) has carved out a niche for itself and should be considered as an exception to the provision contained in Chapter XIII including Section 177 of the Code. As already indicated, even when Section 14(3) was not there in the Statute Book, many High Courts had, while considering the question of appeal or revision, held that the appeal or revision should be filed before the Sessions Court within whose jurisdiction the Court of such Magistrate was situate. I am in respectful agreement with the views expressed on this score by the decisions reported in (1907) ILR 30 Mad 136; AIR 1918 Lah 196 : (1920 (19) Cri LJ 310); AIR 1952 All 193 : (1952 Cri LJ 387); AIR 1953 Madh Bha 156: (1953 Cri LJ 1027); 1962(1) Cri LJ 670 (Raj), (1973) 75 Punjab LR 541 and 1980 Jab LJ 586, as representing the correct law, which appears to have received the legislative sanction by introduction-of-Section 14(3) by Act 45 of 1978. If for the purpose of appeal or revision, such Magistrate is subject to the jurisdiction of the Sessions Court within whose territorial jurisdiction the Magistrate holds Court or is situate, the same principle should be extended to question of commitment to Court of Session for trial. It is difficult to envisage that it is the intention of the legislature that one Sessions Court would be trial Court to which the case will be committed by the Magistrate, whereas another Sessions Court would be the Revisional Court before which revisions against orders of such Magistrate (including the order of commitment, if need be) will be filed.

9. Applying the aforesaid interpretation to the facts of the present case, it is evident that that jurisdiction of the Additional Chief Judicial Magistrate appointed under Section 11 extends to an area beyond the district of Puri in which the Magistrate ordinarily holds Court and the reference to Court of Session so far as such Magistrate is concerned, is the 'Court of Session' exercising jurisdiction relating to the said district, that is to say, the district of Puri. In such view of the matter, the case so far as it related to other accused persons had rightly been committed to the Sessions Judge, Puri, and as the matter had been placed by the Sessions Judge, Puri, before the 2nd Additional Sessions Judge, Bhubaneswar, who comes within the Sessions Division of Puri, the latter should not have returned the file to the Sessions Judge. In such view of the matter, the observations of the 2nd Additional Sessions Judge, Bhubaneswar, that he had no jurisdiction to try the offences or to consider the question of bail is erroneous.

10. Since the bail application of the petitioner has not been considered on merit by the 2nd Additional-:Sessions Judge on the ground of lack of territorial jurisdiction, I have confined myself to the aforesaid question of jurisdiction alone. The counsels appearing for both parties have also confined their submissions to the question of jurisdiction only. I, therefore, direct that the bail petition numbered as Criminal Misc. Case No. 427 of 1996 shall now be considered on merit by the 2nd Additional Sessions Judge, Bhubaneswar, as expeditiously as possible.

The Criminal Miscellaneous Case is disposed of accordingly..